Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control. (a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor. (b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply: (i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served. (ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee. (iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity. (iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure. (v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions: (A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows: (B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease. (vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail. (vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect. (viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee. (ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise. (c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder. (d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 6 contracts
Sources: Hotel Lease Agreement (Moody National REIT II, Inc.), Hotel Lease Agreement (Moody National REIT I, Inc.), Hotel Lease Agreement (Moody National REIT II, Inc.)
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right to mortgage, mortgage or pledge and/or assign its interest in this Lease without having to obtain one or more Mortgagees at any time and from time to time during the consent Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in this Lease shall be used only in connection with the costs of Lessor. Lesseepre- development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall have by virtue thereof, acquire any greater rights hereunder than Tenant has, except the unconditional right to sublet all cure or remedy Tenant’s defaults or become entitled to a portion of the Leased Property without having New Lease as more fully set forth in this Section 10.04 and such other rights as are expressly granted to obtain the consent of LessorMortgagees hereunder. Any pledge or assignment of any interests in Lessee No Mortgage shall be permitted without having to obtain the consent of Lessor.
(b) If Lesseeeffective, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder Lease on the part of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required Tenant to be performed; provided however, or that if such Event of acts to be doneDefault exists, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of but this Lease without first giving to has not been terminated and such Event of Default will be cured simultaneously with the holder granting of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of Mortgage or with the mortgaged property (including possession by a receiver) or (y) to instituteproceeds from such Mortgage, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) Tenant may nevertheless enter into such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of LesseeMortgage for Tenant’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.;
(vii) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease Mortgage shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon subject to all the agreements, terms, covenants and conditions hereofof this Lease;
(iii) such Mortgage shall contain and shall be deemed to contain in substance the following provisions:
(A) “This instrument is executed upon condition that (unless this condition be released or waived by the FCRHA under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Lease at any foreclosure sale hereunder, including or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, shall, as a result of such sale or transfer, acquire any applicable right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged as between such transferee and said the FCRHA, unless and until
(i) the FCRHA has been given written notice of such sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to the FCRHA a duplicate original or certified copy of the instrument of sale or transfer to the FCRHA.”
(B) “The purchaser or transferee of said Lease shall, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease.”
(C) “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged.”
(D) “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage but only to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease.”
(E) “In the event of foreclosure, the mortgagee shall not name, in such foreclosure action or otherwise, and in any event shall not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) who are not Affiliates of Tenant.”
(F) “This mortgage and all rights of renewal. Upon the mortgagee hereunder are, without the necessity for the execution of such new leaseany further documents, Lessor shall allow subject to the tenant named therein terms of said Lease and such tenant the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with the consent of the mortgagor or its predecessors in interest, or may hereafter be modified, amended or renewed with the consent of the mortgagee, which consent shall not be entitled unreasonably withheld or delayed. Nevertheless, the holder of this mortgage agrees from time to an adjustment in an amount equal time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the net income derived by Lessor from FCRHA written notice of the Leased Property during making of any Mortgage (which notice shall contain the period from name and office address of the date of termination of this Lease to Mortgagee) promptly after the date of execution and delivery of such new leaseMortgage and a duplicate original or certified copy thereof.
(vic) Any If the FCRHA shall have received timely the notice or other communication which Lessor described in Section 10.04(b) above, the FCRHA shall desire or is required to give to or serve upon each Mortgagee, at the holder address of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as Mortgagee set forth in the notice from such mortgage. Any Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice or other communication which given by the holder FCRHA to Tenant hereunder (including any notices of a mortgage on this Lease Event(s) of Default under the Lease) at the same time as and whenever any such notice shall desire or is required thereafter be given by the FCRHA to give to or serve upon Lessor Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as cure period shall be designated by Lessor by notice in writing deemed to have commenced) unless and until a copy thereof shall have been given to each such holder Mortgagee. Upon receipt of such notice, each Mortgagee shall have the right (but not the obligation) to remedy such Event of Default or cause the same to be remedied, within the following additional time periods (in each instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten (10) Business Days more in the case of a monetary Event of Default, and (ii) a period of fifteen (15) Business Days more in the case of a non-monetary Event of Default, or in the case of a non-monetary Event of Default which shall require more than the additional fifteen (15) Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall have commenced to cure (or caused to be commenced such cure) within such additional fifteen (15) Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. The FCRHA shall accept performance by registered mail.
(vii) Effective upon the commencement or on behalf of the term a Mortgagee of any new lease executed pursuant covenant, condition or agreement on Tenant’s part to paragraph (v) of this Sectionbe performed hereunder with the same force and effect as though performed by Tenant, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under so long as such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and performance is made in accordance with the terms and provisions of this Lease. The FCRHA shall not object to any temporary entry onto the Premises by or on behalf of Mortgagee to the extent necessary to effect such new leaseMortgagee’s cure rights, provided such entry is in compliance with all Applicable Laws. If possession of the holders Premises or any part thereof is required in order to cure such Event of more than one Default, Mortgagee shall notify the FCRHA within the applicable period afforded to Mortgagee hereunder.
(d) During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the process of curing (or caused to be commenced such leasehold mortgage cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), the FCRHA will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof. At any time prior to the expiration of the additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send the FCRHA notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), the FCRHA will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall make written requests upon Lessor have first delivered to the FCRHA, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, payment of all Additional Costs and Impositions due hereunder (including further, without limitation, the payment of any Impositions or payments of installments for Impositions are being made to a new lease Depository in accordance with Article 5 above)) within any applicable grace periods. However, at any time after the delivery of the aforementioned agreement, the Mortgagee may notify the FCRHA, in writing, that it has relinquished possession of the Premises or that it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it has discontinued them, and, in such event, the Mortgagee shall have no further liability under such agreement from and after the date it delivers such notice to the FCRHA (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, the FCRHA shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action the FCRHA deems appropriate by reason of any uncured Event of Default by Tenant.
(e) Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee shall not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee shall acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non-monetary Event of Default by Tenant that is not capable of being cured shall no longer be deemed an Event of Default of the acquiring Mortgagee, assignee or transferee of this Lease after such foreclosure or transfer in lieu of foreclosure (provided however, that the FCRHA may continue to pursue any and all remedies at law or in equity against the defaulting Tenant, unless Tenant was released of such obligations, provided further, that any such remedies may not involve the disturbance of quiet possession of any Mortgagee, assignee or transferee of the Premises under this Lease or a New Lease).
(f) With respect to any non-monetary Event of Default, so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee shall be taking the actions required by clause (d) of this Section 10.04, the FCRHA shall not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to (A) dispossess Tenant or other occupants of the Premises, (B) re-enter the Premises, or (C) terminate this Lease or the leasehold estate (such rights described in clauses (i), (ii) and (iii) being herein the “FCRHA’s Termination Rights”). In addition, with respect to any monetary Event of Default, the FCRHA shall not exercise any of the FCRHA’s Termination Rights so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 within the time periods set forth above. Upon any Mortgagee ceasing to diligently exercise such rights and undertaking such activities, the FCRHA may exercise any of the FCRHA’s Termination Rights hereunder. Nothing in the protections to Mortgagees provided in this Lease shall, however, be construed to either (i) extend the Term beyond the stated Fixed Expiration Date provided for in this Lease that would have applied if no Event of Default had occurred or (ii) require such Mortgagee to cure any non- monetary Event of Default by Tenant that is not capable of being cured and as a condition to preserving this Lease or, in the case of a Mortgagee only, to obtaining a New Lease as provided in Section 10.05.
(g) The exercise of any rights or remedies of a Mortgagee under a Mortgage, including the consummation of any foreclosure or transfer in lieu of foreclosure, shall not constitute an Event of Default; provided however, that any assignment of this Lease resulting from any such foreclosure or transfer in lieu of foreclosure to an entity other than a Mortgagee or an Affiliate of such Mortgagee shall be an Event of Default under this Lease unless such assignment meets the requirements of Section 10.03.
(h) Except as provided in clause (d) of this Section 10.04, no Mortgagee shall become liable under the provisions of this SectionLease unless and until such time as it becomes, and then only for so long as it remains, the new lease shall be entered into pursuant to the request owner of the holder whose leasehold mortgage estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and cause such Mortgagee to be deemed to be void a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of no force or effectthe Premises.
(viiii) No agreement between Lessor If there is more than one Mortgagee, the rights and Lessee modifying, canceling or surrendering obligations afforded by this Lease Section 10.04 to a Mortgagee shall be effective exercisable only by the party whose collateral interest in the Premises is senior in lien (or which has obtained the consent of any Mortgagees that are senior to such Mortgagee).
(j) In addition to the other rights, notices and cure periods afforded to the holders of any Mortgage, the FCRHA further agrees that:
(i) without the prior written consent of each holder of a Mortgage, the leasehold mortgagee.
(ix) The fee title FCRHA will neither agree to any material modification or material amendment of this Lease, nor accept a surrender or cancellation of this Lease except in accordance with the Leased Property express terms and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct(e.g., notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.condemnation);
(cii) If The FCRHA shall consider in good faith any leasehold mortgagee shall acquire title modification to Lessee’s interest in this Lease, the Lease requested by foreclosure a Mortgagee or prospective Mortgagee as a condition or term of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant granting financing to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignmentTenant, provided that such assignee assumes the same does not materially increase the FCRHA’s obligations of Lessee or materially diminish the FCRHA’s rights and immunities hereunder.;
(diii) Lessor hereby agrees the holder of the Mortgage most senior in lien priority on this Lease shall have the right to deliver participate in any dispute resolution proceedings under Article 34 hereof;
(iv) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to Lessee a ground lessor estoppel certificate participate in the form reasonably required by adjustments of any leasehold mortgagee insurance claims of Lesseethe nature set forth in Article 7 and Article 8 hereof and condemnation awards of the nature set forth in Article 9 hereof and to serve as the Depository (subject to any terms, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); and
(v) at the request of Tenant from time to time, the FCRHA shall execute and deliver an instrument addressed to the holder of any Mortgage confirming that such holder is a Mortgagee and entitled to the benefit of all provisions contained in the Lease which are expressly stated to be for the benefit of Mortgagees.
Appears in 5 contracts
Sources: Deed of Lease, Deed of Lease, Deed of Lease
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts conflict or is are inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 3 contracts
Sources: Hotel Lease Agreement (Moody National REIT I, Inc.), Hotel Lease Agreement (Moody National REIT I, Inc.), Hotel Lease Agreement (Moody National REIT I, Inc.)
Leasehold Mortgages. To SECTION 33.01. Tenant and every successor and assign of Tenant (including, but not limited to, any sublessee of Tenant, but only with Tenant's prior consent) is hereby given the extent right by Landlord in addition to any provision other rights herein granted, without Landlord's prior written consent, to mortgage its interest in this Article 24 conflicts Lease(s), or is inconsistent with any other provision of part or parts thereof, and any sublease(s) under one or more leasehold Mortgage(s), and assign this Lease, the provisions of this Article 24 shall control.
(a) Lesseeor any part or parts thereof, and its any sublease(s) as collateral security for such Mortgage (s), upon the condition that all rights acquired under such Mortgage(s) shall be subject to each and all of the covenants, conditions and restrictions set forth in this Lease, and to all rights and interest of Landlord herein, none of which covenants, conditions or restrictions is or shall be waived by Landlord by reason of the right given so to mortgage such interest in this Lease, except as expressly provided herein. If Tenant and/or Tenant's successors and assignsassigns (including, shall have the unconditional right to mortgagebut not limited to, pledge and/or assign this Lease without having to obtain the consent any sublessee of Lessor. LesseeTenant, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(bbut only with Tenant's prior consent) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance leasehold, or any part or parts thereof, and if the holder(s) of such Mortgage(s) shall, within thirty (30) days of its execution, send to Landlord a true copy thereof, together with written notice specifying the provisions name and address of this Sectionthe Mortgagee and the pertinent recording date with respect to such Mortgage(s), then Landlord agrees that so long as any such mortgage leasehold Mortgage(s) shall remain unsatisfied of recordrecord or until written notice of satisfaction is given by the holder(s) to Landlord, the following provisions shall apply:
(i) LessorA. There shall be no cancellation, surrender or modification of this Lease by joint action of Landlord and Tenant without the prior consent in writing of the leasehold Mortgagee(s).
B. Landlord shall, upon serving Lessee Tenant with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also simultaneously serve a copy of such notice upon the holder holder(s) of such mortgageleasehold Mortgage(s). The leasehold Mortgagee(s) shall thereupon have the same period, at after services of such notice upon it, to remedy or cause to be remedies the address provided for in clause (vi) of this Section 24.1(b)defaults complained of, and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor Landlord shall accept such performance by or at the instance instigation of such holder leasehold Mortgagee(s) as if the same had been made done by LesseeTenant.
(iiiC. Anything herein contained notwithstanding, while such leasehold Mortgage(s) For remains unsatisfied of record, or until written notice of satisfaction is given by the purposes holder(s) to Landlord, if any default shall occur which, pursuant to any provision of this ArticleLease, no event entitled Landlord to terminate this Lease, and if before the expiration of default thirty (30) days from the date of service of notice or termination upon such leasehold Mortgagee(s) such leasehold Mortgagee(s) shall be deemed have notified Landlord of its desire to exist nullify such notice and shall have paid to Landlord all Basic Rent and additional rent and other payments herein provided for, and then in respect default, and shall have complied or shall commence the work of complying with all of the performance other requirements of work required to be performed, or of acts to be done, or of conditions to be remediedthis Lease, if steps any are then in default, and shall in good faith, have been commenced within the time permitted therefor to rectify prosecute the same and shall be prosecuted to completion with reasonable diligence, then in such event Landlord shall not be entitled to terminate this Lease and any notice of termination theretofore given shall be void and of not effect.
D. If the Landlord shall elect to terminate this Lease by reason of any default of Tenant, the leasehold Mortgagee(s) shall not only have the right to nullify and notice of termination by curing such default, as aforesaid, but shall also have the right to postpone and extend the specified date for the termination of this Lease as fixed by Landlord in its notice of termination, for a period of not more than six (6) months, provided that such leasehold Mortgagee(s) shall cure or cause to be cured any then existing money defaults and meanwhile pay the other terms, conditions and provisions of this Lease on Tenant's part to be complied with and performed, other than past non-monetary defaults, and provided further that the leasehold Mortgagee(s) shall forthwith take steps to acquire or sell Tenant's interest in this Lease by foreclosure of the Mortgage(s) or otherwise and shall prosecute the same to completion with all due diligence. If at the end of said six (6) month period the leasehold Mortgagee(s) shall be actively engaged in steps to acquire or sell Tenant's interest herein, the time of said Mortgagee to comply with the provisions of this Article 33 (except Section 33.01 (C) shall be extended for such period as shall be reasonably necessary to complete such steps with reasonable diligence and continuity.
(ivE. Landlord agrees that the name of the leasehold Mortgagee(s) Notwithstanding anything herein contained may be added to the contrary, upon the occurrence "Loss Payable Endorsement" of any and all insurance policies required to be carried by Tenant hereunder on condition that the insurance proceeds are to be applied in the manner specified in this Lease and that the leasehold Mortgage(s) or collateral document shall so provide.
F. Landlord agrees that in the event of default, Lessor shall take no action to effect a termination of this Lease without first giving by reason of any default by Tenant other than for nonpayment of Rent or Additional Rent and other payments herein provided for, that Landlord will enter into a new lease of the Demised Premises with the leasehold Mortgagee(s) or its nominee(s), for the remainder of the term, effective as of the date of such termination, at the Basic Rent and additional rent and upon the terms, provisions, covenants and agreements as herein contained and subject only to the holder same conditions of title as this Lease is subject to on the date of the execution hereof, and to the rights, if any, of any parties then in possession of any part of the Demised Premises, provided:
(1) Said Mortgagee(s) or its nominee shall make written request upon Landlord for such new lease within fifteen (15) days after the date of such mortgage termination and such written notice thereof and a reasonable time thereafter within which either (x) request is accompanied by payment to obtain possession Landlord of the mortgaged property (including possession by a receiver) or (y) sums then due to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest Landlord under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v2) In Said Mortgagee(s) or its nominee(s) shall pay to Landlord at the event time of the termination execution and delivery of this Lease prior to the expiration of the Term (includingsaid new lease, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that the time of the execution and delivery thereof, be due under pursuant to this Lease but for such termination, and in addition thereto, any expenses, including reasonable attorney's fees to which Landlord shall have been subjected by reason of such default.
(3) Said Mortgagee(s) or its nominee(s) shall perform and observe all covenants herein contained on Tenant's part to be performed and shall further remedy any other conditions which Tenant under the terminated lease was obligated to perform under the terms of this Lease; and upon execution and delivery of such new lease, any subleases which may have theretofore been assigned and transferred by Tenant to Landlord, as security under this Lease, shall thereupon be deemed to be held by Landlord as security for the performance of all other defaults, if any, of the obligations of Tenant under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:lease.
(A4) Upon the written request Landlord shall not warrant possession of the holder of such mortgage, within thirty (30) days after service of such notice that Demised Premises to Tenant under the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:lease.
(B5) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow expressly made subject to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to rights, if any, of Tenant under the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new terminated lease.
(vi6) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant The Tenant under such new lease for shall have the purposes of same right, title, and interest in accordance with and to the provisions of buildings and improvements on the Demised Premises as Tenant had under the terminated lease.
G. Landlord agrees promptly after submission to execute, acknowledge and deliver any agreements modifying this Lease requested by any leasehold Mortgagee(s), provided that such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into modification does not decrease Tenant's obligations or decrease Landlord's rights pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for this Lease.
H. The proceeds from any insurance policies or arising from a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed condemnation are to be void held by any leasehold Mortgagee(s) and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein distributed pursuant to the provisions of this Lease Lease, but the leasehold Mortgagee(s) may reserve its rights to apply to the mortgage debt all, or an part, of Tenant's are of such proceeds pursuant to such Mortgage(s).
I. The leasehold Mortgagee(s) shall be given notice of any arbitration proceedings by the parties hereto, and shall have the right to intervene therein and be made a party to such proceedings, and the parties hereto do hereby consent to such intervention. In the event that the leasehold Mortgagee(s) shall not merge but elect to intervene or become a party to such proceedings, the leasehold Mortgagee(s) shall always be kept separate receive notice of, and distinct, notwithstanding the union a copy of such estates any award or decision made in Lessee, Lessor, or in any other person by purchase, operation of law or otherwisesaid arbitration proceedings.
J. Landlord shall, upon request, execute, acknowledge and deliver to each leasehold Mortgagee (c) If any s), an agreement prepared at the sole cost and expense of Tenant, in form satisfactory to such leasehold mortgagee Mortgagee(s), between Landlord, Tenant and leasehold Mortgagee(s), agreeing to all of the provisions herein. The term "Mortgage", whenever used herein, shall acquire title to Lessee’s interest include whatever security instruments are used in this Leasethe locale of the Demised Premises, by foreclosure such as, without limitations, deeds of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgageetrust, or under a new lease security deeds and conditional deeds, as well as financing statements, security agreements and other documentation required pursuant to this Articlethe Uniform Commercial Code. The term "Mortgage" whenever used herein, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions also include any instruments required in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunderconnection with a sale-leaseback transaction.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 2 contracts
Sources: Lease (Yardville National Bancorp), Lease (Yardville National Bancorp)
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right to mortgage, mortgage or pledge and/or assign its interest in this Lease without having to obtain one or more Mortgagees which at any time and from time to time during the consent Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in this Lease shall be used only in connection with the costs of Lessor. Lesseepre- development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall have by virtue thereof, acquire any greater rights hereunder than Tenant has, except the unconditional right to sublet all cure or remedy Tenant’s defaults or become entitled to a portion of the Leased Property without having New Lease as more fully set forth in this Section 10.04 and Section 10.05 and such other rights as are expressly granted to obtain the consent of LessorMortgagees in this Lease. Any pledge or assignment of any interests in Lessee No Mortgage shall be permitted without having to obtain the consent of Lessor.
(b) If Lesseeeffective, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder Lease on the part of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required Tenant to be performed; provided however, or that if such Event of acts to be doneDefault exists, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of but this Lease without first giving to has not been terminated and such Event of Default will be cured simultaneously with the holder granting of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of Mortgage or with the mortgaged property (including possession by a receiver) or (y) to instituteproceeds from such Mortgage, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) Tenant may nevertheless enter into such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of LesseeMortgage for Tenant’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.;
(vii) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease Mortgage shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon subject to all the agreements, terms, covenants and conditions hereofof this Lease;
(iii) such Mortgage shall contain in substance the following provisions: “This instrument is executed upon condition that (unless this condition be released or waived by Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Lease at any foreclosure sale hereunder, including or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, shall, as a result of such sale or transfer, acquire any applicable right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged, unless and until (i) Landlord has been given written notice of such sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to Landlord a duplicate original or certified copy of the instrument of sale or transfer to Landlord. “The purchaser or transferee of said Lease shall, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant after the foreclosure or transfer and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease. “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged. “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage but only to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease. “In the event of foreclosure, the mortgagee shall not name, in such foreclosure action or otherwise, and in any event shall not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) who are not Affiliates of Tenant. “This mortgage and all rights of renewal. Upon the mortgagee hereunder are, without the necessity for the execution of such new leaseany further documents, Lessor shall allow subject to the tenant named therein terms of said Lease and such tenant shall the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with the consent of the mortgagor or its predecessors in interest, or may hereafter be entitled to an adjustment in an amount equal to modified, amended or renewed with the net income derived by Lessor from consent of the Leased Property during mortgagee. Nevertheless, the period from the date of termination holder of this Lease mortgage agrees from time to time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by Landlord to evidence the date foregoing.”
(b) Tenant or the Mortgagee shall give to Landlord written notice of the making of any Mortgage (which notice shall contain the name and office address of the Mortgagee) promptly after the execution and delivery of such new leaseMortgage and a duplicate original or certified copy thereof.
(vic) Any notice or other communication which Lessor Landlord shall desire or is required to give to or serve upon each Mortgagee, at the holder address of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as Mortgagee set forth in the notice from such mortgage. Any Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice or other communication which given by Landlord to Tenant hereunder (including any notices of Event(s) of Default under the holder of a mortgage on this Lease Lease) at the same time as and whenever any such notice shall desire or is required thereafter be given by Landlord to give to or serve upon Lessor Tenant, and no such notice by Landlord shall be deemed to have been duly given to Tenant (and no grace or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as cure period shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void have commenced) unless and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease until a copy thereof shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title have been given to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union each such Mortgagee. Upon receipt of such estates notice, each Mortgagee shall have the right (but not the obligation) to remedy such Event of Default or cause the same to be remedied, within the following additional time periods (in Lesseeeach instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten (10) Business Days more in the case of a monetary Event of Default, Lessorand (ii) a period of fifteen (15) Business Days more in the case of a non-monetary Event of Default, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure the case of a mortgage thereon non-monetary Event of Default which shall require more than the additional fifteen (15) Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall have commenced to cure (or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part caused to be performed and observed from and after the date of commenced such assignment, provided that cure) within such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.additional fifteen
Appears in 2 contracts
Sources: Deed of Lease, Comprehensive Agreement
Leasehold Mortgages. To (a) Without the extent requirement of any provision consent of Landlord, Tenant shall have the right to mortgage its entire interest under this Lease and in this Article 24 conflicts and to the Improvements. The execution and delivery of any such Mortgage shall not be deemed to constitute an assignment or is inconsistent with any other provision transfer of this Lease, nor shall the provisions holder of any such Mortgage be deemed (prior to a foreclosure judgment and the taking of possession as hereinafter provided) an assignee or transferee of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have Lease so as to require such holder to assume the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent performance of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion any of the Leased Property without having terms, covenants or conditions on the part of Tenant to obtain be performed hereunder. Tenant shall give prompt notice to Landlord of the consent execution and delivery of Lessor. Any pledge or assignment a Mortgage meeting the requirements of any interests in Lessee this Section 15.02 and shall be permitted without having to obtain the consent of Lessorfurnish it with conformed copies thereof.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage Notwithstanding anything contained in this Lease to the contrary, no purchaser or transferee at any foreclosure sale or other transfer authorized by law or this Lease shall acquire any right, title or interest in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at Leased Premises or the address provided for in clause Improvements unless (vii) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgagesaid purchaser or transferee shall, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause instrument transferring the same or immediately after acquiring the same, assume and agree to be remediedkeep, observe and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such perform all of the terms, conditions covenants and covenants provisions of this Lease as are on the part of the Tenant to be kept, observed and performed (including the obligation to cure defaults arising prior to such assumption curable by the payment of money or otherwise reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder cured) and shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings therein agree that no further or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, additional mortgage or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease shall be made, except as provided in lieu this Article XIV and (ii) a duplicate-original of foreclosure.
(v) In said assumption agreement, duly executed and acknowledged by said purchaser or transferee, shall be delivered to Landlord promptly following the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder consummation of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, sale or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new leasetransfer.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 2 contracts
Sources: Assignment of Option Agreement (Hollywood Park Operating Co), Option Agreement (Hollywood Park Operating Co)
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right to mortgage, mortgage or pledge and/or assign its interest in this Lease without having to obtain one or more Mortgagees which at any time and from time to time during the consent Term, provided that (x) until Final Completion has occurred, all proceeds from any loan secured by ▇▇▇▇▇▇’s interest in this Lease shall be used by Tenant only in connection with the costs of Lessor. Lesseepre-development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall have by virtue thereof, acquire any greater rights hereunder than ▇▇▇▇▇▇ has, except the unconditional right to sublet all cure or remedy Tenant’s defaults or become entitled to a portion of the Leased Property without having New Lease as more fully set forth in this Section 10.04 and such other rights as are expressly granted to obtain the consent of LessorMortgagees hereunder. Any pledge or assignment of any interests in Lessee No Mortgage shall be permitted without having to obtain the consent of Lessor.
(b) If Lesseeeffective, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder Lease on the part of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required Tenant to be performed; provided however, or that if such Event of acts to be doneDefault exists, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of but this Lease without first giving to has not been terminated and such Event of Default will be cured simultaneously with the holder granting of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of Mortgage or with the mortgaged property (including possession by a receiver) or (y) to instituteproceeds from such Mortgage, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) Tenant may nevertheless enter into such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of LesseeMortgage for Tenant’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.;
(vii) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease Mortgage shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon subject to all the agreements, terms, covenants and conditions hereofof this Lease;
(iii) such Mortgage shall contain in substance the following provisions: “This instrument is executed upon condition that (unless this condition be released or waived by Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said ▇▇▇▇▇ at any foreclosure sale hereunder, including or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, shall, as a result of such sale or transfer, acquire any applicable right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged as between as such transferee and said Landlord, unless and until (i) Landlord has been given written notice of such sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to Landlord a duplicate original or certified copy of the instrument of sale or transfer to Landlord. “The purchaser or transferee of said Lease shall, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease. “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged. “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease. “In the event of foreclosure, the mortgagee shall not name, in such foreclosure action or otherwise, and in any event shall not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) who are not Affiliates of Tenant. “This mortgage and all rights of renewal. Upon the mortgagee hereunder are, without the necessity for the execution of such new leaseany further documents, Lessor shall allow subject to the tenant named therein terms of said ▇▇▇▇▇ and such tenant shall the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with the consent of the mortgagor or its predecessors in interest, or may hereafter be entitled to an adjustment in an amount equal to modified, amended or renewed with the net income derived by Lessor from consent of the Leased Property during mortgagee. Nevertheless, the period from the date of termination holder of this Lease mortgage agrees from time to time upon request and without charge to execute, acknowledge, and deliver any instruments reasonably requested by ▇▇▇▇▇▇▇▇ to evidence the date foregoing.”
(b) Tenant or the Mortgagee shall give to Landlord written notice of the making of any Mortgage (which notice shall contain the name and office address of the Mortgagee) promptly after the execution and delivery of such new leaseMortgage and a duplicate original or certified copy thereof.
(vic) Any notice or other communication which Lessor Landlord shall desire or is required to give to or serve upon each Mortgagee, at the holder address of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as Mortgagee set forth in the notice from such mortgage. Any Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice or other communication which given by Landlord to Tenant hereunder (including any notices of Event(s) of Default under the holder of a mortgage on this Lease Lease) at the same time as and whenever any such notice shall desire or is required thereafter be given by Landlord to give to or serve upon Lessor Tenant, and no such notice by Landlord shall be deemed to have been duly given to Tenant (and no grace or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as cure period shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void have commenced) unless and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease until a copy thereof shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title have been given to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union each such Mortgagee. Upon receipt of such estates notice, each Mortgagee shall have the right (but not the obligation) to remedy such Event of Default or cause the same to be remedied, within the following additional time periods (in Lesseeeach instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten (10) Business Days more in the case of a monetary Event of Default, Lessorand (ii) a period of fifteen (15) Business Days more in the case of a non-monetary Event of Default, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure the case of a mortgage thereon non-monetary Event of Default which shall require more than the additional fifteen (15) Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall have commenced to cure (or caused to be commenced such cure) within such additional fifteen (15) Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. Landlord shall accept performance by assignment in lieu or on behalf of foreclosure a Mortgagee of any covenant, condition or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained agreement on tenantTenant’s part to be performed hereunder with the same force and observed from effect as though performed by ▇▇▇▇▇▇, so long as such performance is made in accordance with the terms and after provisions of this Lease. Landlord shall not object to any temporary entry onto the date Premises by or on behalf of Mortgagee to the extent necessary to effect such assignmentMortgagee’s cure rights, provided that such assignee assumes entry is in compliance with all Applicable Laws. If possession of the obligations Premises or any part thereof is required in order to cure such Event of Lessee Default, Mortgagee shall notify Landlord within the applicable period afforded to Mortgagee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the form reasonably process of curing (or caused to be commenced such cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof. At any time prior to the expiration of the additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send Landlord notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall have first delivered to Landlord, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, payment of all Additional Costs and Impositions due hereunder (including further, without limitation, the payment of any Impositions or payments of installments for Impositions are being made to a Depository in accordance with Article 5 above)) within any applicable grace periods. However, at any time after the delivery of the aforementioned agreement, the Mortgagee may notify Landlord, in writing, that it has relinquished possession of the Premises or that it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it has discontinued them, and, in such event, the Mortgagee shall have no further liability under such agreement from and after the date it delivers such notice to Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, Landlord shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action Landlord deems appropriate by reason of any uncured Event of Default by Tenant.
(e) Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee shall not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee shall acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non-monetary Event of Default by Tenant that is not capable of being cured shall no longer be deemed an Event of Default.
(f) With respect to any non-monetary Event of Default, so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee shall be taking the actions required by any leasehold mortgagee clause (d) of Lessee.this Section 10.04, Landlord shall not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to (A) dispossess Tenant or other occupants of the Premises,
Appears in 2 contracts
Sources: Ground Lease, Ground Lease
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) LesseeTenant will have the right to mortgage or pledge its interest in this Lease to one or more Mortgagees which at any time and from time to time during the Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in this Lease will be used only in connection with the costs of pre-development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, shall have nor anyone claiming by, through or under any such Mortgage, will by virtue thereof, acquire any greater rights hereunder than ▇▇▇▇▇▇ has, except the unconditional right to mortgagecure or remedy Tenant’s defaults or become entitled to a New Lease as more fully set forth in this Section 10.04 and Section 10.06 and such other rights as are expressly granted to Mortgagees in this Lease. No Mortgage will be effective, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessorat the time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Lease on the part of Tenant to be performed; provided however, that if such Event of Default exists, but this Lease has not been terminated and such Event of Default will be cured simultaneously with the granting of such Mortgage or with the proceeds from such Mortgage, Tenant may nevertheless enter into such Mortgage for Tenant’s interest in this Lease;
(ii) such Mortgage will be subject to all the agreements, terms, covenants, and conditions of this Lease;
(iii) such Mortgage will contain in substance the following provisions: “This instrument is executed upon serving Lessee with condition that (unless this condition be released or waived by Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said ▇▇▇▇▇ at any foreclosure sale hereunder, or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, will, as a result of such sale or transfer, acquire any right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged, unless and until (i) Landlord has been given written notice of defaultsuch sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to Landlord a duplicate original or certified copy of the instrument of sale or transfer to Landlord. “The purchaser or transferee of said ▇▇▇▇▇ will, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease. “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged. “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any other notice under insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage but only to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease. “In the event of foreclosure, the mortgagee will not name, in such foreclosure action or otherwise, and in any event will not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease who are not Affiliates of Tenant. “This mortgage and all rights of the mortgagee hereunder are, without the necessity for the execution of any further documents, subject to the terms of said ▇▇▇▇▇ and the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with respect to this Leasethe consent of the mortgagor or its predecessors in interest, shall also serve a copy or may hereafter be modified, amended or renewed with the consent of such notice upon the mortgagee. Nevertheless, the holder of this mortgage agrees from time to time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by ▇▇▇▇▇▇▇▇ to evidence the foregoing.”
(b) Tenant or the Mortgagee will give to Landlord written notice of the making of any Mortgage (which notice will contain the name and office address of the Mortgagee) promptly after the execution and delivery of such mortgageMortgage and a duplicate original or certified copy thereof.
(c) Landlord will give to each Mortgagee identified to Landlord pursuant to Section 10.04(b) above, at the address of such Mortgagee set forth in the notice from such Mortgagee or from Tenant, and otherwise in the manner provided for in clause by Article 25, a copy of each notice given by Landlord to Tenant hereunder (viincluding any notices of Event(s) of this Section 24.1(b)Default under the Lease) at the same time as and whenever any such notice will thereafter be given by Landlord to Tenant, and no such notice by Lessor to Lessee hereunder shall Landlord will be deemed to have been duly given to Tenant (and no grace or cure period will be deemed to have commenced) unless and until a copy thereof has will have been so served.
(ii) Any holder given to each such Mortgagee. Upon receipt of such mortgagenotice, the Mortgagee specified in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, Section 10.04(j) below will have the right (but not the obligation) to remedy such default, Event of Default or cause the same to be remedied, within the following additional time periods (in each instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten Business Days more in the case of a monetary Event of Default, and Lessor shall (ii) a period of 15 Business Days more in the case of a non-monetary Event of Default, or in the case of a non-monetary Event of Default which will require more than the additional 15 Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee will have commenced to cure (or caused to be commenced such cure) within such additional 15 Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. Landlord will accept such performance by or at the instance on behalf of such holder as if Mortgagee of any covenant, condition, or agreement on Tenant’s part to be performed hereunder with the same had been force and effect as though performed by ▇▇▇▇▇▇, so long as such performance is made in accordance with the terms and provisions of this Lease. Landlord will not object to any temporary entry onto the Premises by Lesseeor on behalf of Mortgagee to the extent necessary to effect such Mortgagee’s cure rights, provided such entry is in compliance with all Applicable Laws. If possession of the Premises or any part thereof is required in order to cure such Event of Default, Mortgagee will notify Landlord within the applicable period afforded to Mortgagee hereunder.
(iiid) For During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the purposes process of this Article, no event of default shall be deemed to exist in respect of the performance of work required curing (or caused to be performed, or commenced such cure) a non-monetary Event of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced Default within the time permitted therefor periods provided in Section 10.04(c), Landlord will not exercise any remedies to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of terminate this Lease without first giving to the holder or dispossess Tenant of such mortgage written notice thereof and a reasonable possession thereof. At any time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send Landlord notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee will have first delivered to Landlord, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, in connection with a rejection payment of this Lease in all Base Rent, Additional Costs and Impositions due hereunder (including further, without limitation, the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement payment of any and all sums which would at that time be due under this Lease but Impositions or payments of installments for such termination, and of all other defaults, if any, under this Lease then known Impositions are being made to Lessor. Such holder shall thereupon have the option to obtain a new Lease Depository in accordance with and upon Article 5 above)) within any applicable grace periods. However, at any time after the following terms and conditions:
(A) Upon the written request delivery of the holder of such mortgageaforementioned agreement, within thirty (30) days after service of such notice the Mortgagee may notify Landlord, in writing, that the Lease it has been terminated, Lessor shall enter into a new lease relinquished possession of the Leased Property with Premises or that it will not institute foreclosure proceedings or, if such holderproceedings have been commenced, or his designeethat it has discontinued them, as follows:
(B) Such new lease shall be effective as at the date of termination of this Leaseand, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which event, the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to Mortgagee will have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant no further liability under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date it delivers such notice to Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, Landlord will have the unrestricted right to terminate this Lease, dispossess Tenant of such assignment, provided that such assignee assumes the obligations Premises and to take any other action Landlord deems appropriate by reason of Lessee hereunderany uncured Event of Default by Tenant.
(e) Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee will not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee will acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non-monetary Event of Default by Tenant that is not capable of being cured will no longer be deemed an Event of Default of the acquiring Mortgagee, assignee or transferee of this Lease after such foreclosure or transfer in lieu of foreclosure (provided however, that Landlord may continue to pursue any and all remedies at law or in equity against the defaulting Tenant unless Tenant was released of such obligations, provided further, that any such remedies may not involve the disturbance of quiet possession of any Mortgagee, assignee or transferee of the Premises under this Lease or a New Lease).
(f) With respect to any non-monetary Event of Default, so long as a Mortgagee will be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee will be taking the actions required by clause (d) Lessor hereby agrees of this Section 10.04, Landlord will not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to deliver to Lessee a ground lessor estoppel certificate in (A) dispossess Tenant or other occupants of the form reasonably required by any leasehold mortgagee of Lessee.Premises,
Appears in 2 contracts
Sources: Deed of Lease, Deed of Lease
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right to mortgage, mortgage or pledge and/or assign its interest in this Lease without having to obtain one or more Mortgagees which at any time and from time to time during the consent Term, provided that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in this Lease shall be used by Tenant only in connection with the costs of Lessor. Lesseepre-development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall have by virtue thereof, acquire any greater rights hereunder than Tenant has, except the unconditional right to sublet all cure or remedy Tenant’s defaults or become entitled to a portion of the Leased Property without having New Lease as more fully set forth in this Section 10.04 and such other rights as are expressly granted to obtain the consent of LessorMortgagees hereunder. Any pledge or assignment of any interests in Lessee No Mortgage shall be permitted without having to obtain the consent of Lessor.
(b) If Lesseeeffective, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder Lease on the part of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required Tenant to be performed; provided however, or that if such Event of acts to be doneDefault exists, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of but this Lease without first giving to has not been terminated and such Event of Default will be cured simultaneously with the holder granting of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of Mortgage or with the mortgaged property (including possession by a receiver) or (y) to instituteproceeds from such Mortgage, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) Tenant may nevertheless enter into such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of LesseeMortgage for Tenant’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.;
(vii) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease Mortgage shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon subject to all the agreements, terms, covenants and conditions hereofof this Lease;
(iii) such Mortgage shall contain in substance the following provisions: “This instrument is executed upon condition that (unless this condition be released or waived by Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Lease at any foreclosure sale hereunder, including or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, shall, as a result of such sale or transfer, acquire any applicable right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged as between as such transferee and said Landlord, unless and until (i) Landlord has been given written notice of such sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to Landlord a duplicate original or certified copy of the instrument of sale or transfer to Landlord. “The purchaser or transferee of said Lease shall, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease. “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged. “In the event of foreclosure, the mortgagee shall not name, in such foreclosure action or otherwise, and in any event shall not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) who are not Affiliates of Tenant. “This mortgage and all rights of renewal. Upon the mortgagee hereunder are, without the necessity for the execution of such new leaseany further documents, Lessor shall allow subject to the tenant named therein terms of said Lease and such tenant shall the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with the consent of the mortgagor or its predecessors in interest, or may hereafter be entitled to an adjustment in an amount equal to modified, amended or renewed with the net income derived by Lessor from consent of the Leased Property during mortgagee. Nevertheless, the period from the date of termination holder of this Lease mortgage agrees from time to time upon request and without charge to execute, acknowledge, and deliver any instruments reasonably requested by Landlord to evidence the date foregoing.”
(b) Tenant or the Mortgagee shall give to Landlord written notice of the making of any Mortgage (which notice shall contain the name and office address of the Mortgagee) promptly after the execution and delivery of such new leaseMortgage and a duplicate original or certified copy thereof.
(vic) Any notice or other communication which Lessor Landlord shall desire or is required to give to or serve upon each Mortgagee, at the holder address of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as Mortgagee set forth in the notice from such mortgage. Any Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice or other communication which given by Landlord to Tenant hereunder (including any notices of Event(s) of Default under the holder of a mortgage on this Lease Lease) at the same time as and whenever any such notice shall desire or is required thereafter be given by Landlord to give to or serve upon Lessor Tenant, and no such notice by Landlord shall be deemed to have been duly given to Tenant (and no grace or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as cure period shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void have commenced) unless and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease until a copy thereof shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title have been given to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union each such Mortgagee. Upon receipt of such estates notice, each Mortgagee shall have the right (but not the obligation) to remedy such Event of Default or cause the same to be remedied, within the following additional time periods (in Lesseeeach instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten (10) Business Days more in the case of a monetary Event of Default, Lessorand (ii) a period of fifteen (15) Business Days more in the case of a non-monetary Event of Default, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure the case of a mortgage thereon non-monetary Event of Default which shall require more than the additional fifteen (15) Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall have commenced to cure (or caused to be commenced such cure) within such additional fifteen (15) Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. Landlord shall accept performance by assignment in lieu or on behalf of foreclosure a Mortgagee of any covenant, condition or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained agreement on tenantTenant’s part to be performed hereunder with the same force and observed from effect as though performed by Tenant, so long as such performance is made in accordance with the terms and after provisions of this Lease. Landlord shall not object to any temporary entry onto the date Premises by or on behalf of Mortgagee to the extent necessary to effect such assignmentMortgagee’s cure rights, provided that such assignee assumes entry is in compliance with all Applicable Laws. If possession of the obligations Premises or any part thereof is required in order to cure such Event of Lessee Default, Mortgagee shall notify Landlord within the applicable period afforded to Mortgagee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the form reasonably process of curing (or caused to be commenced such cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof. At any time prior to the expiration of the additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send Landlord notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall have first delivered to Landlord, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, payment of all Additional Costs and Impositions due hereunder (including further, without limitation, the payment of any Impositions or payments of installments for Impositions are being made to a Depository in accordance with Article 5 above)) within any applicable grace periods. However, at any time after the delivery of the aforementioned agreement, the Mortgagee may notify Landlord, in writing, that it has relinquished possession of the Premises or that it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it has discontinued them, and, in such event, the Mortgagee shall have no further liability under such agreement from and after the date it delivers such notice to Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, Landlord shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action Landlord deems appropriate by reason of any uncured Event of Default by Tenant.
(e) Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee shall not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee shall acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non-monetary Event of Default by Tenant that is not capable of being cured shall no longer be deemed an Event of Default.
(f) With respect to any non-monetary Event of Default, so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee shall be taking the actions required by any leasehold mortgagee clause (d) of Lessee.this Section 10.04, Landlord shall not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to (A) dispossess Tenant or other occupants of the Premises,
Appears in 1 contract
Sources: Ground Lease
Leasehold Mortgages. To From and after the extent any provision in this Article 24 conflicts or is inconsistent with any other provision Effective Date of this Lease, Tenant shall be permitted to grant a mortgage encumbering its leasehold interest in the provisions of this Article 24 shall control.Leased Property subject to and only in accordance with the following requirements:
(a) Lessee, Landlord shall not under any circumstances be deemed to have joined in the mortgage and/or subordinated or subjected its interest in and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent lien and encumbrance of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.mortgage; and
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions term of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of exceed the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to may only run concurrently with an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement extension of the term of any new lease executed pursuant provided that Tenant has exercised its option to paragraph extend the term as provided in Section 2.3 hereof; and
(vc) of this Section, all subleases the mortgagee must be an institutional financial entity; and
(d) the Mortgage shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used contain an express statement by the tenant under such new lease for mortgagee acknowledging that the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee simple title to the Leased Property is not encumbered thereby and that Landlord shall have no liability thereunder; and
(e) the leasehold estate created therein pursuant Mortgage shall include the agreement of the mortgagee to simultaneously provide to Landlord a copy of any notice sent to mortgagor/Tenant thereunder. Except as expressly provided elsewhere herein, any assignment, transfer, sublease or encumbrance in violation of this Article shall be voidable at Landlord's option. Landlord agrees and acknowledges that the mortgages reflected in the Third Party Documents and/or the Permitted Exceptions ("Existing Mortgages") are expressly permitted and allowed hereunder and shall not be subject to the provisions of this Lease shall not merge but shall always be kept separate and distinctterms, notwithstanding the union of such estates in Lessee, Lessor, conditions or in any other person by purchase, operation of law or otherwiselimitations set forth above.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Sources: Ground Lease Agreement (CNL Retirement Properties Inc)
Leasehold Mortgages. To ASC, and every successor and assign of ASC, is hereby given the extent any provision right by IMA in this Article 24 conflicts or is inconsistent with addition to any other provision of this rights herein granted, subject to IMA's prior written consent which shall not be unreasonably withheld, to mortgage its interests in the Lease, the provisions of this Article 24 shall control.
(a) Lesseeor any part or parts thereof, under one or more leasehold Mortgage(s), and its to assign the Lease, or any part or parts thereof, and any subleases, or parts thereof, as collateral security for such Mortgage(s), upon the condition that all rights acquired under such Mortgage(s) shall be subject to each and every one of the covenants, conditions and restrictions set forth in the Lease, and to all rights and interests of IMA herein, none of which covenants, conditions or restrictions is or shall be waived by IMA by reason of the right given so to mortgage such interest in the Lease, except as expressly provided herein. If ASC and/or ASC's successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, assigns shall mortgage this Lease in compliance leasehold or any part or parts thereof, and if the holder(s) of such Mortgage(s) shall send to IMA written notice of such Mortgage(s) specifying the name and address of the Mortgagee(s) and the pertinent recording data with the provisions of this Sectionrespect to such Mortgage(s), then IMA agrees that so long as any such mortgage leasehold Mortgage(s) shall remain unsatisfied of recordrecord or until written notice of satisfaction is given by the holder(s) to IMA, the following provisions shall apply:
(ia) LessorThere shall be no cancellation, surrender or modification of the Lease by joint action of IMA and ASC without the prior consent in writing of the leasehold Mortgagee(s); provided that termination upon default shall be governed by the following provisions of this Section 22.
(b) IMA shall, upon serving Lessee ASC with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also simultaneously serve a copy of such notice upon the holder holder(s) of such mortgage, at the address provided for in clause (vi) of this Section 24.1(bleasehold Mortgagee(s), provided IMA shall be kept informed in writing by ASC of current addresses of all Mortgagees and no such notice by Lessor of default to Lessee hereunder ASC shall be deemed effective as to have been duly given any person or entity unless and until a copy thereof has been so served.
(ii) Any holder of such mortgagenotice is served upon each such person or entity; however, in case Lessee the failure of ASC to provide IMA with the name of any Mortgagee(s) shall be in default hereunder, shall, within the period and otherwise as herein provided, constitute a waiver of IMA's requirement to provide notice. The leasehold Mortgagee(s) shall thereupon have the right same period as ASC, after service of such notice upon it, to remedy such default, or cause the same to be remediedremedied the defaults complained of, and Lessor IMA shall accept such performance by or at the instance instigation of such holder leasehold Mortgagee(s) as if the same had been made done by LesseeASC.
(iiic) For Anything herein contained notwithstanding, while such leasehold Mortgage(s) remains unsatisfied of record, or until written notice of satisfaction is given by the purposes of this Articleholder(s) to IMA, no event of if any default shall be deemed occur which, pursuant to exist in respect any provision of the performance Lease, entitles IMA to terminate the Lease, and if before the expiration of ten (10) days from the date of service of notice of termination upon such leasehold Mortgagee(s) such leasehold Mortgagee(s) shall have notified IMA of its desire to nullify such notice and shall have paid to IMA all Rent and additional Rent and other payments herein provided for, and then in default, and shall have complied or shall commence the work required to be performed, or of acts to be done, or complying with all of conditions to be remediedthe other requirements of the Lease, if steps any are then in default, and shall in good faith, have been commenced within the time permitted therefor to rectify prosecute the same and shall be prosecuted to completion with diligence reasonable diligence, then in such event IMA shall not be entitled to terminate the Lease and continuityany notice of termination theretofore given shall be void and of no effect.
(ivd) Notwithstanding anything herein contained If IMA shall elect to terminate the contrary, upon the occurrence Lease by reason of any event default of ASC, the leasehold Mortgagee(s) shall not only have the right to nullify any notice of termination by curing such default, Lessor as aforesaid, but shall take no action also have the right to effect a postpone and extend the specified date for the termination of this the Lease without first giving as fixed by IMA in its notice of termination, for a period of not more than six (6) months, provided that such leasehold Mortgagee(s) shall cure or cause to be cured any then existing monetary defaults and meanwhile pay the holder of such mortgage written notice thereof Rent, additional Rent and a reasonable time thereafter within which either (x) to obtain possession comply with and perform all of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such of the other terms, conditions and covenants provisions of the Lease on ASC's part to be complied with and performed, other than past non-monetary defaults, and provided further, that the leasehold Mortgagee(s) shall forthwith take steps to acquire or sell ASC's interest in the Lease by foreclosure of the Mortgage(s) or otherwise and shall prosecute the same to completion with all due diligence. If at the end of said six (6) month period the leasehold Mortgagee(s) shall be actively engaged in steps to acquire or sell ASC's interest herein, the time of said Mortgagee to comply with the provisions of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder Section shall be deemed extended for such period as shall be reasonably necessary to complete such steps with reasonable diligence and continuity, provided the quality of the commercial alpine ski resort operator shall not have been waived by Lessor upon completion of such foreclosure proceedings reduced or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosureimpaired.
(ve) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease IMA agrees that in the event of a bankruptcy termination of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement by reason of any default by ASC other than for nonpayment of Rent or additional Rent and all sums which would at other payments herein provided for, that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall IMA will enter into a new lease of the Leased Property Premises with the leasehold Mortgagee(s) or its nominee(s), provided reasonable assurances of the capability of the new operator are provided, for the remainder of the Term, effective as of the date of such holdertermination, or his designeeat the Rent and additional Rent and upon the terms, provisions, covenants and agreements as followsherein contained and subject only to the same conditions of title as the Lease is subject to on the date of the execution hereof, and to the rights, if any, of the parties then in possession of any part of the Leased Premises, provided:
(Bi) Said Mortgagee(s) or its nominee(s) shall make written request upon IMA for such new lease within fifteen (15) days after the date of such termination and such written request shall be accompanied by payment to IMA of all sums then due to IMA under the Lease.
(ii) Said Mortgagee(s) or its nominee(s) shall pay to IMA at the time of the execution and delivery of said new lease, any and all sums which would at the time of the execution and delivery thereof, be due pursuant to the Lease but for such termination, and in addition thereto, any expenses, including reasonable attorney's fees, to which IMA shall have been subjected by reason of such default.
(iii) Said Mortgagee(s) or its nominee(s) shall perform and observe all covenants herein contained on ASC's part to be performed and shall further remedy any other conditions which ASC under the terminated lease was obligated to perform under the terms of the Lease.
(iv) IMA shall not warrant possession of the Leased Premises to ASC under the new Lease.
(v) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow expressly made subject to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to rights, if any, of ASC under the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new leaseterminated Lease.
(vi) Any notice The Mortgagee, or other communication which Lessor its nominee, under such new lease shall desire or is required have the same right, title and interest in and to give to or serve upon the holder of a mortgage Ski Improvements on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address the Leased Premises as set forth in such mortgage. Any notice or other communication which ASC had under the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mailterminated Lease.
(vii) Effective upon Nothing herein contained shall require the commencement leasehold Mortgagee(s) or its nominee(s) to cure any default of the term ASC, except as a condition of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effectexercising its rights hereunder.
(viii) No agreement between Lessor IMA agrees promptly after submission to execute, acknowledge and Lessee modifyingdeliver any agreements modifying the Lease requested by any leasehold Mortgagee(s), canceling provided that such modification does not decrease ASC's obligations or surrendering this Lease shall be effective without decrease IMA's rights pursuant to the prior written consent of the leasehold mortgageeLease.
(ix) The fee title proceeds from any insurance policies or arising from a condemnation are to the Leased Property be held by any leasehold Mortgagee(s) and the leasehold estate created therein distributed pursuant to the provisions of this Lease shall not merge the Lease, but shall always be kept separate and distinctthe leasehold Mortgagee(s) may reserve its right to apply to the mortgage debt all, notwithstanding the union or any part, of ASC's share of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwiseproceeds pursuant to such mortgage(s).
(cx) If The leasehold Mortgagee(s) shall be given notice of any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, arbitration proceedings by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease the parties hereto and shall thereupon have the right to intervene therein and be released from made a party to such proceedings, and the parties hereto do hereby consent to such intervention. In the event that the leasehold Mortgagee(s) shall not elect to intervene or become a party to such proceedings, the leasehold Mortgagee(s) shall receive notice of, and a copy of any award or decision made in said arbitration proceedings. IMA, upon request, shall execute, acknowledge and deliver to each leasehold Mortgagee(s), an agreement prepared at the sole cost and expense of ASC in form satisfactory to such leasehold Mortgagee(s) between IMA, ASC and the leasehold Mortgagee(s), agreeing to (a) all liability for the performance or observance of the covenants provisions of this Section 22 and conditions (b) such other provisions as are customary and acceptable to all parties in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereundermortgaging long-term leaseholds in connection with large commercial development projects.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Sources: Ski Lease (Asc Holdings Inc)
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) LesseeTenant will have the right to mortgage or pledge its interest in this Lease to one or more Mortgagees which at any time and from time to time during the Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by ▇▇▇▇▇▇’s interest in this Lease will be used only in connection with the costs of pre-development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, shall have nor anyone claiming by, through or under any such Mortgage, will by virtue thereof, acquire any greater rights hereunder than ▇▇▇▇▇▇ has, except the unconditional right to mortgagecure or remedy Tenant’s defaults or become entitled to a New Lease as more fully set forth in this Section 10.04 and Section 10.06 and such other rights as are expressly granted to Mortgagees in this Lease. No Mortgage will be effective, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessorat the time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Lease on the part of Tenant to be performed; provided however, that if such Event of Default exists, but this Lease has not been terminated and such Event of Default will be cured simultaneously with the granting of such Mortgage or with the proceeds from such Mortgage, Tenant may nevertheless enter into such Mortgage for Tenant’s interest in this Lease;
(ii) such Mortgage will be subject to all the agreements, terms, covenants, and conditions of this Lease;
(iii) such Mortgage will contain in substance the following provisions: “This instrument is executed upon serving Lessee with condition that (unless this condition be released or waived by Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Lease at any foreclosure sale hereunder, or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, will, as a result of such sale or transfer, acquire any right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged, unless and until (i) Landlord has been given written notice of defaultsuch sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to Landlord a duplicate original or certified copy of the instrument of sale or transfer to Landlord. “The purchaser or transferee of said ▇▇▇▇▇ will, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease. “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged. “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any other notice under insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage but only to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease. “In the event of foreclosure, the mortgagee will not name, in such foreclosure action or otherwise, and in any event will not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease who are not Affiliates of Tenant. “This mortgage and all rights of the mortgagee hereunder are, without the necessity for the execution of any further documents, subject to the terms of said ▇▇▇▇▇ and the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with respect to this Leasethe consent of the mortgagor or its predecessors in interest, shall also serve a copy or may hereafter be modified, amended or renewed with the consent of such notice upon the mortgagee. Nevertheless, the holder of this mortgage agrees from time to time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by ▇▇▇▇▇▇▇▇ to evidence the foregoing.”
(b) Tenant or the Mortgagee will give to Landlord written notice of the making of any Mortgage (which notice will contain the name and office address of the Mortgagee) promptly after the execution and delivery of such mortgageMortgage and a duplicate original or certified copy thereof.
(c) Landlord will give to each Mortgagee identified to Landlord pursuant to Section 10.04(b) above, at the address of such Mortgagee set forth in the notice from such Mortgagee or from Tenant, and otherwise in the manner provided for in clause by Article 25, a copy of each notice given by Landlord to Tenant hereunder (viincluding any notices of Event(s) of this Section 24.1(b)Default under the Lease) at the same time as and whenever any such notice will thereafter be given by Landlord to Tenant, and no such notice by Lessor to Lessee hereunder shall Landlord will be deemed to have been duly given to Tenant (and no grace or cure period will be deemed to have commenced) unless and until a copy thereof has will have been so served.
(ii) Any holder given to each such Mortgagee. Upon receipt of such mortgagenotice, the Mortgagee specified in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, Section 10.04(j) below will have the right (but not the obligation) to remedy such default, Event of Default or cause the same to be remedied, within the following additional time periods (in each instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten Business Days more in the case of a monetary Event of Default, and Lessor shall (ii) a period of 15 Business Days more in the case of a non-monetary Event of Default, or in the case of a non-monetary Event of Default which will require more than the additional 15 Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee will have commenced to cure (or caused to be commenced such cure) within such additional 15 Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. Landlord will accept such performance by or at the instance on behalf of such holder as if Mortgagee of any covenant, condition, or agreement on ▇▇▇▇▇▇’s part to be performed hereunder with the same had been force and effect as though performed by ▇▇▇▇▇▇, so long as such performance is made in accordance with the terms and provisions of this Lease. Landlord will not object to any temporary entry onto the Premises by Lesseeor on behalf of Mortgagee to the extent necessary to effect such Mortgagee’s cure rights, provided such entry is in compliance with all Applicable Laws. If possession of the Premises or any part thereof is required in order to cure such Event of Default, Mortgagee will notify Landlord within the applicable period afforded to Mortgagee hereunder.
(iiid) For During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the purposes process of this Article, no event of default shall be deemed to exist in respect of the performance of work required curing (or caused to be performed, or commenced such cure) a non-monetary Event of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced Default within the time permitted therefor periods provided in Section 10.04(c), Landlord will not exercise any remedies to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of terminate this Lease without first giving to the holder or dispossess Tenant of such mortgage written notice thereof and a reasonable possession thereof. At any time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send Landlord notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee will have first delivered to Landlord, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, in connection with a rejection payment of this Lease in all Base Rent, Additional Costs and Impositions due hereunder (including further, without limitation, the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement payment of any and all sums which would at that time be due under this Lease but Impositions or payments of installments for such termination, and of all other defaults, if any, under this Lease then known Impositions are being made to Lessor. Such holder shall thereupon have the option to obtain a new Lease Depository in accordance with and upon Article 5 above)) within any applicable grace periods. However, at any time after the following terms and conditions:
(A) Upon the written request delivery of the holder of such mortgageaforementioned agreement, within thirty (30) days after service of such notice the Mortgagee may notify Landlord, in writing, that the Lease it has been terminated, Lessor shall enter into a new lease relinquished possession of the Leased Property with Premises or that it will not institute foreclosure proceedings or, if such holderproceedings have been commenced, or his designeethat it has discontinued them, as follows:
(B) Such new lease shall be effective as at the date of termination of this Leaseand, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which event, the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to Mortgagee will have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant no further liability under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date it delivers such notice to Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, Landlord will have the unrestricted right to terminate this Lease, dispossess Tenant of such assignment, provided that such assignee assumes the obligations Premises and to take any other action Landlord deems appropriate by reason of Lessee hereunderany uncured Event of Default by ▇▇▇▇▇▇.
(e) Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee will not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee will acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non-monetary Event of Default by Tenant that is not capable of being cured will no longer be deemed an Event of Default of the acquiring Mortgagee, assignee or transferee of this Lease after such foreclosure or transfer in lieu of foreclosure (provided however, that Landlord may continue to pursue any and all remedies at law or in equity against the defaulting Tenant unless Tenant was released of such obligations, provided further, that any such remedies may not involve the disturbance of quiet possession of any Mortgagee, assignee or transferee of the Premises under this Lease or a New Lease).
(f) With respect to any non-monetary Event of Default, so long as a Mortgagee will be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee will be taking the actions required by clause (d) Lessor hereby agrees of this Section 10.04, Landlord will not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to deliver to Lessee a ground lessor estoppel certificate in (A) dispossess Tenant or other occupants of the form reasonably required by any leasehold mortgagee of Lessee.Premises,
Appears in 1 contract
Sources: Deed of Lease
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b24.1 (b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Sources: Hotel Lease Agreement (Moody National REIT II, Inc.)
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 Tenant shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, mortgage or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist pledge its interest in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to one or more Mortgagees which at any time and from time to time during the holder of such mortgage written notice thereof and a reasonable time thereafter within which either Term, provided however, that (x) to obtain possession until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in this Lease shall be used only in connection with the costs of pre-development, development, construction, carry, and operations of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured Project and (y) no holder of any Mortgage, nor anyone claiming by, through or under any such holder Mortgage, shall agree with Lessor by virtue thereof, acquire any greater rights hereunder than Tenant has, except the right to cure or remedy Tenant’s defaults or become entitled to a New Lease as more fully set forth in writing this Section 10.04 and Section 10.05 and such other rights as are expressly granted to comply during Mortgagees in this Lease. No Mortgage shall be effective, unless: at the period time of making such forbearance with such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions and covenants of this Lease as are reasonably susceptible on the part of being complied Tenant to be performed; provided however, that if such Event of Default exists, but this Lease has not been terminated and such Event of Default will be cured simultaneously with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion the granting of such foreclosure proceedings Mortgage or upon with the proceeds from such acquisition of LesseeMortgage, Tenant may nevertheless enter into such Mortgage for Tenant’s interest in this Lease, except that any of ; such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease Mortgage shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon subject to all the agreements, terms, covenants and conditions hereofof this Lease; such Mortgage shall contain in substance the following provisions: “This instrument is executed upon condition that (unless this condition be released or waived by Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Lease at any foreclosure sale hereunder, including or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, shall, as a result of such sale or transfer, acquire any applicable right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged, unless and until (i) Landlord has been given written notice of such sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to Landlord a duplicate original or certified copy of the instrument of sale or transfer to Landlord. “The purchaser or transferee of said Lease shall, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant after the foreclosure or transfer and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease. “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged. “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage but only to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease. “In the event of foreclosure, the mortgagee shall not name, in such foreclosure action or otherwise, and in any event shall not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) who are not Affiliates of Tenant. “This mortgage and all rights of renewal. Upon the mortgagee hereunder are, without the necessity for the execution of such new leaseany further documents, Lessor shall allow subject to the tenant named therein terms of said Lease and such tenant shall the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with the consent of the mortgagor or its predecessors in interest, or may hereafter be entitled to an adjustment in an amount equal to modified, amended or renewed with the net income derived by Lessor from consent of the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon mortgagee. Nevertheless, the holder of this mortgage agrees from time to time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by Landlord to evidence the foregoing.” Tenant or the Mortgagee shall give to Landlord written notice of the making of any Mortgage (which notice shall contain the name and office address of the Mortgagee) promptly after the execution and delivery of such Mortgage and a mortgage on this Lease duplicate original or certified copy thereof. Landlord shall be in writing and shall be served by registered mailgive to each Mortgagee, addressed to at the address of such holder at his address as Mortgagee set forth in the notice from such mortgage. Any Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice or other communication which given by Landlord to Tenant hereunder (including any notices of Event(s) of Default under the holder of a mortgage on this Lease Lease) at the same time as and whenever any such notice shall desire or is required thereafter be given by Landlord to give to or serve upon Lessor Tenant, and no such notice by Landlord shall be deemed to have been duly given to Tenant (and no grace or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as cure period shall be designated by Lessor by notice in writing deemed to have commenced) unless and until a copy thereof shall have been given to each such holder Mortgagee. Upon receipt of such notice, each Mortgagee shall have the right (but not the obligation) to remedy such Event of Default or cause the same to be remedied, within the following additional time periods (in each instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten (10) Business Days more in the case of a monetary Event of Default, and (ii) a period of fifteen (15) Business Days more in the case of a non-monetary Event of Default, or in the case of a non-monetary Event of Default which shall require more than the additional fifteen (15) Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall have commenced to cure (or caused to be commenced such cure) within such additional fifteen (15) Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. Landlord shall accept performance by registered mail.
(vii) Effective upon the commencement or on behalf of the term a Mortgagee of any new lease executed pursuant covenant, condition or agreement on Tenant’s part to paragraph (v) of this Sectionbe performed hereunder with the same force and effect as though performed by Tenant, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under so long as such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and performance is made in accordance with the terms and provisions of this Lease. Landlord shall not object to any temporary entry onto the Premises by or on behalf of Mortgagee to the extent necessary to effect such new leaseMortgagee’s cure rights, provided such entry is in compliance with all Applicable Laws. If possession of the holders Premises or any part thereof is required in order to cure such Event of more than one Default, Mortgagee shall notify Landlord within the applicable period afforded to Mortgagee hereunder. During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the process of curing (or caused to be commenced such leasehold mortgage cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof. At any time prior to the expiration of the additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send Landlord notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall make written requests upon Lessor have first delivered to Landlord, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, payment of all Base Rent, Additional Costs and Impositions due hereunder (including further, without limitation, the payment of any Impositions or payments of installments for Impositions are being made to a new lease Depository in accordance with Article 5 above)) within any applicable grace periods. However, at any time after the delivery of the aforementioned agreement, the Mortgagee may notify Landlord, in writing, that it has relinquished possession of the Premises or that it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it has discontinued them, and, in such event, the Mortgagee shall have no further liability under such agreement from and after the date it delivers such notice to Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, Landlord shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action Landlord deems appropriate by reason of any uncured Event of Default by Tenant. Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee shall not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee shall acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non-monetary Event of Default by Tenant that is not capable of being cured shall no longer be deemed an Event of Default of the acquiring Mortgagee, assignee or transferee of this Lease after such foreclosure or transfer in lieu of foreclosure (provided however, that Landlord may continue to pursue any and all remedies at law or in equity against the defaulting Tenant unless Tenant was released of such obligations, provided further, that any such remedies may not involve the disturbance of quiet possession of any Mortgagee, assignee or transferee of the Premises under this Lease or a New Lease). With respect to any non-monetary Event of Default, so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee shall be taking the actions required by clause (d) of this Section 10.04, Landlord shall not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to (A) dispossess Tenant or other occupants of the Premises, (B) re-enter the Premises, or (C) terminate this Lease or the leasehold estate (such rights described in clauses (i), (ii) and (iii) being herein “Landlord’s Termination Rights”). In addition, with respect to any monetary Event of Default, Landlord shall not exercise any of Landlord’s Termination Rights so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 within the time periods set forth above. Upon any Mortgagee ceasing to diligently exercise such rights and undertaking such activities, Landlord may exercise any of Landlord’s Termination Rights hereunder. Nothing in the protections to Mortgagees provided in this Lease shall, however, be construed to either (i) extend the Term beyond the stated Fixed Expiration Date provided for in this Lease that would have applied if no Event of Default had occurred or (ii) require such Mortgagee to cure any non-monetary Event of Default by Tenant that is not capable of being cured and as a condition to preserving this Lease or, in the case of a Mortgagee only, to obtaining a New Lease as provided in Section 10.05. The exercise of any rights or remedies of a Mortgagee under a Mortgage, including the consummation of any foreclosure or transfer in lieu of foreclosure, shall not constitute an Event of Default; provided however, that any assignment of this Lease resulting from any such foreclosure or transfer in lieu of foreclosure to an entity other than a Mortgagee or an Affiliate of such Mortgagee shall be an Event of Default under this Lease unless such assignment meets the requirements of Section 10.03. Except as provided in clause (d) of this Section 10.04, no Mortgagee shall become liable under the provisions of this SectionLease unless and until such time as it becomes, and then only for so long as it remains, the new lease shall be entered into pursuant to the request owner of the holder whose leasehold mortgage estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and cause such Mortgagee to be deemed to be void a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of no force or effect.
(viii) No agreement between Lessor the Premises. If there is more than one Mortgagee, the rights and Lessee modifying, canceling or surrendering obligations afforded by this Lease Section 10.04 to a Mortgagee shall be effective exercisable only by the party whose collateral interest in the Premises is senior in lien (or which has obtained the consent of any Mortgagees that are senior to such Mortgagee). In addition to the other rights, notices and cure periods afforded to the holders of any Mortgage, Landlord further agrees that: without the prior written consent of the leasehold mortgagee.
(ix) The fee title each holder of a Mortgage, Landlord will neither agree to any modification or amendment of this Lease, nor accept a surrender or cancellation of this Lease; Landlord shall consider in good faith any modification to the Leased Property Lease requested by a Mortgagee or prospective Mortgagee (including the Mortgage language set forth in Section10.04(a)(iii)) as a condition or term of granting financing to Tenant, provided that the same does not materially increase Landlord’s obligations or diminish Landlord’s rights and immunities hereunder; the leasehold estate created therein pursuant to holder of the provisions of Mortgage most senior in lien priority on this Lease shall not merge but shall always be kept separate and distinct, notwithstanding have the union of such estates in Lessee, Lessor, or right to participate in any other person by purchasedispute resolution proceedings under Article 34 hereof; the holder of the Mortgage most senior in lien priority on this Lease shall have the right to participate in the adjustments of any insurance claims of the nature set forth in Article 7 and Article 8 hereof and condemnation awards of the nature set forth in Article 9 hereof and to serve as the Depository (subject to any terms, operation conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); and at the request of law or otherwise.
(c) If Tenant from time to time, Landlord shall execute and deliver an instrument addressed to the holder of any leasehold mortgagee shall acquire title Mortgage confirming that such holder is a Mortgagee and entitled to Lessee’s interest the benefit of all provisions contained in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant the Lease which are expressly stated to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance benefit of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunderMortgagees.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Sources: Deed of Lease
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The SAA shall apply to, and have priority and be superior to, any leasehold mortgage.
(x) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Sources: Master Lease Agreement (Moody National REIT I, Inc.)
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right to mortgage, mortgage or pledge and/or assign its interest in this Lease without having to obtain one or more Mortgagees at any time and from time to time during the consent Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in this Lease shall be used only in connection with the costs of Lessor. Lesseepre- development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall have by virtue thereof, acquire any greater rights hereunder than ▇▇▇▇▇▇ has, except the unconditional right to sublet all cure or remedy Tenant’s defaults or become entitled to a portion of the Leased Property without having New Lease as more fully set forth in this Section 10.04 and such other rights as are expressly granted to obtain the consent of LessorMortgagees hereunder. Any pledge or assignment of any interests in Lessee No Mortgage shall be permitted without having to obtain the consent of Lessor.
(b) If Lesseeeffective, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder Lease on the part of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required Tenant to be performed; provided however, or that if such Event of acts to be doneDefault exists, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of but this Lease without first giving to has not been terminated and such Event of Default will be cured simultaneously with the holder granting of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of Mortgage or with the mortgaged property (including possession by a receiver) or (y) to instituteproceeds from such Mortgage, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) Tenant may nevertheless enter into such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of LesseeMortgage for Tenant’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.;
(vii) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease Mortgage shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon subject to all the agreements, terms, covenants and conditions hereofof this Lease;
(iii) such Mortgage shall contain and shall be deemed to contain in substance the following provisions:
(A) “This instrument is executed upon condition that (unless this condition be released or waived by the FCRHA under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said ▇▇▇▇▇ at any foreclosure sale hereunder, including or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, shall, as a result of such sale or transfer, acquire any applicable right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged as between such transferee and said the FCRHA, unless and until
(i) the FCRHA has been given written notice of such sale or transfer of said ▇▇▇▇▇ and the effective date thereof, and (ii) such purchaser or transferee has delivered to the FCRHA a duplicate original or certified copy of the instrument of sale or transfer to the FCRHA.”
(B) “The purchaser or transferee of said Lease shall, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease.”
(C) “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged.”
(D) “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage but only to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease.”
(E) “In the event of foreclosure, the mortgagee shall not name, in such foreclosure action or otherwise, and in any event shall not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) who are not Affiliates of Tenant.”
(F) “This mortgage and all rights of renewal. Upon the mortgagee hereunder are, without the necessity for the execution of such new leaseany further documents, Lessor shall allow subject to the tenant named therein terms of said ▇▇▇▇▇ and such tenant the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with the consent of the mortgagor or its predecessors in interest, or may hereafter be modified, amended or renewed with the consent of the mortgagee, which consent shall not be entitled unreasonably withheld or delayed. Nevertheless, the holder of this mortgage agrees from time to an adjustment in an amount equal time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the net income derived by Lessor from FCRHA written notice of the Leased Property during making of any Mortgage (which notice shall contain the period from name and office address of the date of termination of this Lease to Mortgagee) promptly after the date of execution and delivery of such new leaseMortgage and a duplicate original or certified copy thereof.
(vic) Any If the FCRHA shall have received timely the notice or other communication which Lessor described in Section 10.04(b) above, the FCRHA shall desire or is required to give to or serve upon each Mortgagee, at the holder address of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as Mortgagee set forth in the notice from such mortgage. Any Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice or other communication which given by the holder FCRHA to Tenant hereunder (including any notices of a mortgage on this Lease Event(s) of Default under the Lease) at the same time as and whenever any such notice shall desire or is required thereafter be given by the FCRHA to give to or serve upon Lessor Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as cure period shall be designated by Lessor by notice in writing deemed to have commenced) unless and until a copy thereof shall have been given to each such holder Mortgagee. Upon receipt of such notice, each Mortgagee shall have the right (but not the obligation) to remedy such Event of Default or cause the same to be remedied, within the following additional time periods (in each instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten (10) Business Days more in the case of a monetary Event of Default, and (ii) a period of fifteen (15) Business Days more in the case of a non-monetary Event of Default, or in the case of a non-monetary Event of Default which shall require more than the additional fifteen (15) Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall have commenced to cure (or caused to be commenced such cure) within such additional fifteen (15) Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. The FCRHA shall accept performance by registered mail.
(vii) Effective upon the commencement or on behalf of the term a Mortgagee of any new lease executed pursuant covenant, condition or agreement on Tenant’s part to paragraph (v) of this Sectionbe performed hereunder with the same force and effect as though performed by ▇▇▇▇▇▇, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under so long as such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and performance is made in accordance with the terms and provisions of this Lease. The FCRHA shall not object to any temporary entry onto the Premises by or on behalf of Mortgagee to the extent necessary to effect such new leaseMortgagee’s cure rights, provided such entry is in compliance with all Applicable Laws. If possession of the holders Premises or any part thereof is required in order to cure such Event of more than one Default, Mortgagee shall notify the FCRHA within the applicable period afforded to Mortgagee hereunder.
(d) During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the process of curing (or caused to be commenced such leasehold mortgage cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), the FCRHA will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof. At any time prior to the expiration of the additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send the FCRHA notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), the FCRHA will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall make written requests upon Lessor have first delivered to the FCRHA, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, payment of all Additional Costs and Impositions due hereunder (including further, without limitation, the payment of any Impositions or payments of installments for Impositions are being made to a new lease Depository in accordance with Article 5 above)) within any applicable grace periods. However, at any time after the delivery of the aforementioned agreement, the Mortgagee may notify the FCRHA, in writing, that it has relinquished possession of the Premises or that it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it has discontinued them, and, in such event, the Mortgagee shall have no further liability under such agreement from and after the date it delivers such notice to the FCRHA (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, the FCRHA shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action the FCRHA deems appropriate by reason of any uncured Event of Default by Tenant.
(e) Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee shall not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee shall acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non-monetary Event of Default by Tenant that is not capable of being cured shall no longer be deemed an Event of Default of the acquiring Mortgagee, assignee or transferee of this Lease after such foreclosure or transfer in lieu of foreclosure (provided however, that the FCRHA may continue to pursue any and all remedies at law or in equity against the defaulting Tenant, unless Tenant was released of such obligations, provided further, that any such remedies may not involve the disturbance of quiet possession of any Mortgagee, assignee or transferee of the Premises under this Lease or a New Lease).
(f) With respect to any non-monetary Event of Default, so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee shall be taking the actions required by clause (d) of this Section 10.04, the FCRHA shall not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to (A) dispossess Tenant or other occupants of the Premises, (B) re-enter the Premises, or (C) terminate this Lease or the leasehold estate (such rights described in clauses (i), (ii) and (iii) being herein the “FCRHA’s Termination Rights”). In addition, with respect to any monetary Event of Default, the FCRHA shall not exercise any of the FCRHA’s Termination Rights so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 within the time periods set forth above. Upon any Mortgagee ceasing to diligently exercise such rights and undertaking such activities, the FCRHA may exercise any of the FCRHA’s Termination Rights hereunder. Nothing in the protections to Mortgagees provided in this Lease shall, however, be construed to either (i) extend the Term beyond the stated Fixed Expiration Date provided for in this Lease that would have applied if no Event of Default had occurred or (ii) require such Mortgagee to cure any non- monetary Event of Default by Tenant that is not capable of being cured and as a condition to preserving this Lease or, in the case of a Mortgagee only, to obtaining a New Lease as provided in Section 10.05.
(g) The exercise of any rights or remedies of a Mortgagee under a Mortgage, including the consummation of any foreclosure or transfer in lieu of foreclosure, shall not constitute an Event of Default; provided however, that any assignment of this Lease resulting from any such foreclosure or transfer in lieu of foreclosure to an entity other than a Mortgagee or an Affiliate of such Mortgagee shall be an Event of Default under this Lease unless such assignment meets the requirements of Section 10.03.
(h) Except as provided in clause (d) of this Section 10.04, no Mortgagee shall become liable under the provisions of this SectionLease unless and until such time as it becomes, and then only for so long as it remains, the new lease shall be entered into pursuant to the request owner of the holder whose leasehold mortgage estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and cause such Mortgagee to be deemed to be void a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of no force or effectthe Premises.
(viiii) No agreement between Lessor If there is more than one Mortgagee, the rights and Lessee modifying, canceling or surrendering obligations afforded by this Lease Section 10.04 to a Mortgagee shall be effective exercisable only by the party whose collateral interest in the Premises is senior in lien (or which has obtained the consent of any Mortgagees that are senior to such Mortgagee).
(j) In addition to the other rights, notices and cure periods afforded to the holders of any Mortgage, the FCRHA further agrees that:
(i) without the prior written consent of each holder of a Mortgage, the leasehold mortgagee.
(ix) The fee title FCRHA will neither agree to any material modification or material amendment of this Lease, nor accept a surrender or cancellation of this Lease except in accordance with the Leased Property express terms and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct(e.g., notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.condemnation);
(cii) If The FCRHA shall consider in good faith any leasehold mortgagee shall acquire title modification to Lessee’s interest in this Lease, the Lease requested by foreclosure a Mortgagee or prospective Mortgagee as a condition or term of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant granting financing to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignmentTenant, provided that such assignee assumes the same does not materially increase the FCRHA’s obligations of Lessee or materially diminish the FCRHA’s rights and immunities hereunder.;
(diii) Lessor hereby agrees the holder of the Mortgage most senior in lien priority on this Lease shall have the right to deliver participate in any dispute resolution proceedings under Article 34 hereof;
(iv) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to Lessee a ground lessor estoppel certificate participate in the form reasonably required by adjustments of any leasehold mortgagee insurance claims of Lesseethe nature set forth in Article 7 and Article 8 hereof and condemnation awards of the nature set forth in Article 9 hereof and to serve as the Depository (subject to any terms, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); and
(v) at the request of Tenant from time to time, the FCRHA shall execute and deliver an instrument addressed to the holder of any Mortgage confirming that such holder is a Mortgagee and entitled to the benefit of all provisions contained in the Lease which are expressly stated to be for the benefit of Mortgagees.
Appears in 1 contract
Sources: Deed of Lease
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right to mortgage, mortgage or pledge and/or assign its interest in this Lease without having to obtain one or more Mortgagees which at any time and from time to time during the consent Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by ▇▇▇▇▇▇’s interest in this Lease shall be used only in connection with the costs of Lessor. Lesseepre- development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall have by virtue thereof, acquire any greater rights hereunder than ▇▇▇▇▇▇ has, except the unconditional right to sublet all cure or remedy Tenant’s defaults or become entitled to a portion of the Leased Property without having New Lease as more fully set forth in this Section 10.04 and such other rights as are expressly granted to obtain the consent of LessorMortgagees hereunder. Any pledge or assignment of any interests in Lessee No Mortgage shall be permitted without having to obtain the consent of Lessor.
(b) If Lesseeeffective, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder Lease on the part of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required Tenant to be performed; provided however, or that if such Event of acts to be doneDefault exists, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of but this Lease without first giving to has not been terminated and such Event of Default will be cured simultaneously with the holder granting of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of Mortgage or with the mortgaged property (including possession by a receiver) or (y) to instituteproceeds from such Mortgage, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) Tenant may nevertheless enter into such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of LesseeMortgage for Tenant’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.;
(vii) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease Mortgage shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon subject to all the agreements, terms, covenants and conditions hereofof this Lease;
(iii) such Mortgage shall contain in substance the following provisions: “This instrument is executed upon condition that (unless this condition be released or waived by Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Lease at any foreclosure sale hereunder, including or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, shall, as a result of such sale or transfer, acquire any applicable right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged as between as such transferee and said Landlord, unless and until (i) Landlord has been given written notice of such sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to Landlord a duplicate original or certified copy of the instrument of sale or transfer to Landlord. “The purchaser or transferee of said Lease shall, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease. “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged. “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease. “In the event of foreclosure, the mortgagee shall not name, in such foreclosure action or otherwise, and in any event shall not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) who are not Affiliates of Tenant. “This mortgage and all rights of renewal. Upon the mortgagee hereunder are, without the necessity for the execution of such new leaseany further documents, Lessor shall allow subject to the tenant named therein terms of said ▇▇▇▇▇ and such tenant shall the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with the consent of the mortgagor or its predecessors in interest, or may hereafter be entitled to an adjustment in an amount equal to modified, amended or renewed with the net income derived by Lessor from consent of the Leased Property during mortgagee. Nevertheless, the period from the date of termination holder of this Lease mortgage agrees from time to time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by ▇▇▇▇▇▇▇▇ to evidence the date foregoing.”
(b) Tenant or the Mortgagee shall give to Landlord written notice of the making of any Mortgage (which notice shall contain the name and office address of the Mortgagee) promptly after the execution and delivery of such new leaseMortgage and a duplicate original or certified copy thereof.
(vic) Any notice or other communication which Lessor Landlord shall desire or is required to give to or serve upon each Mortgagee, at the holder address of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as Mortgagee set forth in the notice from such mortgage. Any Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice or other communication which given by Landlord to Tenant hereunder (including any notices of Event(s) of Default under the holder of a mortgage on this Lease Lease) at the same time as and whenever any such notice shall desire or is required thereafter be given by Landlord to give to or serve upon Lessor Tenant, and no such notice by Landlord shall be deemed to have been duly given to Tenant (and no grace or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as cure period shall be designated by Lessor by notice in writing deemed to have commenced) unless and until a copy thereof shall have been given to each such holder Mortgagee. Upon receipt of such notice, each Mortgagee shall have the right (but not the obligation) to remedy such Event of Default or cause the same to be remedied, within the following additional time periods (in each instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten (10) Business Days more in the case of a monetary Event of Default, and (ii) a period of fifteen (15) Business Days more in the case of a non-monetary Event of Default, or in the case of a non-monetary Event of Default which shall require more than the additional fifteen (15) Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall have commenced to cure (or caused to be commenced such cure) within such additional fifteen (15) Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. Landlord shall accept performance by registered mail.
(vii) Effective upon the commencement or on behalf of the term a Mortgagee of any new lease executed pursuant covenant, condition or agreement on ▇▇▇▇▇▇’s part to paragraph (v) of this Sectionbe performed hereunder with the same force and effect as though performed by ▇▇▇▇▇▇, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under so long as such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and performance is made in accordance with the terms and provisions of this Lease. Landlord shall not object to any temporary entry onto the Premises by or on behalf of Mortgagee to the extent necessary to effect such new leaseMortgagee’s cure rights, provided such entry is in compliance with all Applicable Laws. If possession of the holders Premises or any part thereof is required in order to cure such Event of more than one Default, Mortgagee shall notify Landlord within the applicable period afforded to Mortgagee hereunder.
(d) During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the process of curing (or caused to be commenced such leasehold mortgage cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof. At any time prior to the expiration of the additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send Landlord notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall make written requests upon Lessor have first delivered to Landlord, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, payment of all Additional Costs and Impositions due hereunder (including further, without limitation, the payment of any Impositions or payments of installments for Impositions are being made to a new lease Depository in accordance with Article 5 above)) within any applicable grace periods. However, at any time after the delivery of the aforementioned agreement, the Mortgagee may notify Landlord, in writing, that it has relinquished possession of the Premises or that it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it has discontinued them, and, in such event, the Mortgagee shall have no further liability under such agreement from and after the date it delivers such notice to Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, Landlord shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action Landlord deems appropriate by reason of any uncured Event of Default by Tenant.
(e) Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee shall not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee shall acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non-monetary Event of Default by Tenant that is not capable of being cured shall no longer be deemed an Event of Default of the acquiring Mortgagee, assignee or transferee of this Lease after such foreclosure or transfer in lieu of foreclosure (provided however, that Landlord may continue to pursue any and all remedies at law or in equity against the defaulting Tenant, provided further, that any such remedies may not involve the disturbance of quiet possession of any Mortgagee, assignee or transferee of the Premises under this Lease or a New Lease).
(f) With respect to any non-monetary Event of Default, so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee shall be taking the actions required by clause (d) of this Section 10.04, Landlord shall not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to (A) dispossess Tenant or other occupants of the Premises, (B) re-enter the Premises, or (C) terminate this Lease or the leasehold estate (such rights described in clauses (i), (ii) and (iii) being herein “Landlord’s Termination Rights”). In addition, with respect to any monetary Event of Default, Landlord shall not exercise any of Landlord’s Termination Rights so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 within the time periods set forth above. Upon any Mortgagee ceasing to diligently exercise such rights and undertaking such activities, Landlord may exercise any of Landlord’s Termination Rights hereunder. Nothing in the protections to Mortgagees provided in this Lease shall, however, be construed to either (i) extend the Term beyond the stated Fixed Expiration Date provided for in this Lease that would have applied if no Event of Default had occurred or (ii) require such Mortgagee to cure any non-monetary Event of Default by Tenant that is not capable of being cured and as a condition to preserving this Lease or, in the case of a Mortgagee only, to obtaining a New Lease as provided in Section 10.05.
(g) The exercise of any rights or remedies of a Mortgagee under a Mortgage, including the consummation of any foreclosure or transfer in lieu of foreclosure, shall not constitute an Event of Default; provided however, that any assignment of this Lease resulting from any such foreclosure or transfer in lieu of foreclosure to an entity other than a Mortgagee or an Affiliate of such Mortgagee shall be an Event of Default under this Lease unless such assignment meets the requirements of Section 10.03.
(h) Except as provided in clause (d) of this Section 10.04, no Mortgagee shall become liable under the provisions of this SectionLease unless and until such time as it becomes, and then only for so long as it remains, the new lease shall be entered into pursuant to the request owner of the holder whose leasehold mortgage estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and cause such Mortgagee to be deemed to be void a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of no force or effectthe Premises.
(viiii) No agreement between Lessor If there is more than one Mortgagee, the rights and Lessee modifying, canceling or surrendering obligations afforded by this Lease Section 10.04 to a Mortgagee shall be effective exercisable only by the party whose collateral interest in the Premises is senior in lien (or which has obtained the consent of any Mortgagees that are senior to such Mortgagee).
(j) In addition to the other rights, notices and cure periods afforded to the holders of any Mortgage, Landlord further agrees that:
(i) without the prior written consent of the leasehold mortgagee.each holder of a Mortgage, Landlord will neither agree to any modification or amendment of this Lease, nor accept a surrender or cancellation of this Lease;
(ixii) The fee title Landlord shall consider in good faith any modification to the Leased Property Lease requested by a Mortgagee or prospective Mortgagee as a condition or term of granting financing to Tenant, provided that the same does not materially increase Landlord’s obligations or diminish Landlord’s rights and immunities hereunder;
(iii) the leasehold estate created therein pursuant to holder of the provisions of Mortgage most senior in lien priority on this Lease shall not merge but shall always be kept separate and distinct, notwithstanding have the union of such estates in Lessee, Lessor, or right to participate in any other person by purchase, operation of law or otherwise.dispute resolution proceedings under Article 34 hereof;
(civ) If the holder of the Mortgage most senior in lien priority on this Lease shall have the right to participate in the adjustments of any leasehold mortgagee insurance claims of the nature set forth in Article 7 and Article 8 hereof and condemnation awards of the nature set forth in Article 9 hereof and to serve as the Depository (subject to any terms, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); and
(v) at the request of ▇▇▇▇▇▇ from time to time, ▇▇▇▇▇▇▇▇ shall acquire title execute and deliver an instrument addressed to Lessee’s interest the holder of any Mortgage confirming that such holder is a Mortgagee and entitled to the benefit of all provisions contained in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant the Lease which are expressly stated to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance benefit of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunderMortgagees.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Sources: Deed of Lease
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right to mortgage, mortgage or pledge and/or assign its interest in this Lease without having to obtain one or more Mortgagees which at any time and from time to time during the consent Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in this Lease shall be used only in connection with the costs of Lessor. Lesseepre- development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall have by virtue thereof, acquire any greater rights hereunder than Tenant has, except the unconditional right to sublet all cure or remedy Tenant’s defaults or become entitled to a portion of the Leased Property without having New Lease as more fully set forth in this Section 10.04 and such other rights as are expressly granted to obtain the consent of LessorMortgagees hereunder. Any pledge or assignment of any interests in Lessee No Mortgage shall be permitted without having to obtain the consent of Lessor.
(b) If Lesseeeffective, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder Lease on the part of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required Tenant to be performed; provided however, or that if such Event of acts to be doneDefault exists, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of but this Lease without first giving to has not been terminated and such Event of Default will be cured simultaneously with the holder granting of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of Mortgage or with the mortgaged property (including possession by a receiver) or (y) to instituteproceeds from such Mortgage, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) Tenant may nevertheless enter into such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of LesseeMortgage for Tenant’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.;
(vii) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease Mortgage shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon subject to all the agreements, terms, covenants and conditions hereofof this Lease;
(iii) such Mortgage shall contain in substance the following provisions: “This instrument is executed upon condition that (unless this condition be released or waived by Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Lease at any foreclosure sale hereunder, including or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, shall, as a result of such sale or transfer, acquire any applicable right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged as between as such transferee and said Landlord, unless and until (i) Landlord has been given written notice of such sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to Landlord a duplicate original or certified copy of the instrument of sale or transfer to Landlord. “The purchaser or transferee of said Lease shall, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease. “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged. “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease. “In the event of foreclosure, the mortgagee shall not name, in such foreclosure action or otherwise, and in any event shall not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) who are not Affiliates of Tenant. “This mortgage and all rights of renewal. Upon the mortgagee hereunder are, without the necessity for the execution of such new leaseany further documents, Lessor shall allow subject to the tenant named therein terms of said Lease and such tenant shall the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with the consent of the mortgagor or its predecessors in interest, or may hereafter be entitled to an adjustment in an amount equal to modified, amended or renewed with the net income derived by Lessor from consent of the Leased Property during mortgagee. Nevertheless, the period from the date of termination holder of this Lease mortgage agrees from time to time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by Landlord to evidence the date foregoing.”
(b) Tenant or the Mortgagee shall give to Landlord written notice of the making of any Mortgage (which notice shall contain the name and office address of the Mortgagee) promptly after the execution and delivery of such new leaseMortgage and a duplicate original or certified copy thereof.
(vic) Any notice or other communication which Lessor Landlord shall desire or is required to give to or serve upon each Mortgagee, at the holder address of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as Mortgagee set forth in the notice from such mortgage. Any Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice or other communication which given by Landlord to Tenant hereunder (including any notices of Event(s) of Default under the holder of a mortgage on this Lease Lease) at the same time as and whenever any such notice shall desire or is required thereafter be given by Landlord to give to or serve upon Lessor Tenant, and no such notice by Landlord shall be deemed to have been duly given to Tenant (and no grace or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as cure period shall be designated by Lessor by notice in writing deemed to have commenced) unless and until a copy thereof shall have been given to each such holder Mortgagee. Upon receipt of such notice, each Mortgagee shall have the right (but not the obligation) to remedy such Event of Default or cause the same to be remedied, within the following additional time periods (in each instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten (10) Business Days more in the case of a monetary Event of Default, and (ii) a period of fifteen (15) Business Days more in the case of a non-monetary Event of Default, or in the case of a non-monetary Event of Default which shall require more than the additional fifteen (15) Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall have commenced to cure (or caused to be commenced such cure) within such additional fifteen (15) Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. Landlord shall accept performance by registered mail.
(vii) Effective upon the commencement or on behalf of the term a Mortgagee of any new lease executed pursuant covenant, condition or agreement on Tenant’s part to paragraph (v) of this Sectionbe performed hereunder with the same force and effect as though performed by Tenant, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under so long as such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and performance is made in accordance with the terms and provisions of this Lease. Landlord shall not object to any temporary entry onto the Premises by or on behalf of Mortgagee to the extent necessary to effect such new leaseMortgagee’s cure rights, provided such entry is in compliance with all Applicable Laws. If possession of the holders Premises or any part thereof is required in order to cure such Event of more than one Default, Mortgagee shall notify Landlord within the applicable period afforded to Mortgagee hereunder.
(d) During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the process of curing (or caused to be commenced such leasehold mortgage cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof. At any time prior to the expiration of the additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send Landlord notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall make written requests upon Lessor have first delivered to Landlord, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, payment of all Additional Costs and Impositions due hereunder (including further, without limitation, the payment of any Impositions or payments of installments for Impositions are being made to a new lease Depository in accordance with Article 5 above)) within any applicable grace periods. However, at any time after the delivery of the aforementioned agreement, the Mortgagee may notify Landlord, in writing, that it has relinquished possession of the Premises or that it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it has discontinued them, and, in such event, the Mortgagee shall have no further liability under such agreement from and after the date it delivers such notice to Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, Landlord shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action Landlord deems appropriate by reason of any uncured Event of Default by Tenant.
(e) Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee shall not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee shall acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non-monetary Event of Default by Tenant that is not capable of being cured shall no longer be deemed an Event of Default of the acquiring Mortgagee, assignee or transferee of this Lease after such foreclosure or transfer in lieu of foreclosure (provided however, that Landlord may continue to pursue any and all remedies at law or in equity against the defaulting Tenant, provided further, that any such remedies may not involve the disturbance of quiet possession of any Mortgagee, assignee or transferee of the Premises under this Lease or a New Lease).
(f) With respect to any non-monetary Event of Default, so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee shall be taking the actions required by clause (d) of this Section 10.04, Landlord shall not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to (A) dispossess Tenant or other occupants of the Premises, (B) re-enter the Premises, or (C) terminate this Lease or the leasehold estate (such rights described in clauses (i), (ii) and (iii) being herein “Landlord’s Termination Rights”). In addition, with respect to any monetary Event of Default, Landlord shall not exercise any of Landlord’s Termination Rights so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 within the time periods set forth above. Upon any Mortgagee ceasing to diligently exercise such rights and undertaking such activities, Landlord may exercise any of Landlord’s Termination Rights hereunder. Nothing in the protections to Mortgagees provided in this Lease shall, however, be construed to either (i) extend the Term beyond the stated Fixed Expiration Date provided for in this Lease that would have applied if no Event of Default had occurred or (ii) require such Mortgagee to cure any non-monetary Event of Default by Tenant that is not capable of being cured and as a condition to preserving this Lease or, in the case of a Mortgagee only, to obtaining a New Lease as provided in Section 10.05.
(g) The exercise of any rights or remedies of a Mortgagee under a Mortgage, including the consummation of any foreclosure or transfer in lieu of foreclosure, shall not constitute an Event of Default; provided however, that any assignment of this Lease resulting from any such foreclosure or transfer in lieu of foreclosure to an entity other than a Mortgagee or an Affiliate of such Mortgagee shall be an Event of Default under this Lease unless such assignment meets the requirements of Section 10.03.
(h) Except as provided in clause (d) of this Section 10.04, no Mortgagee shall become liable under the provisions of this SectionLease unless and until such time as it becomes, and then only for so long as it remains, the new lease shall be entered into pursuant to the request owner of the holder whose leasehold mortgage estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and cause such Mortgagee to be deemed to be void a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of no force or effectthe Premises.
(viiii) No agreement between Lessor If there is more than one Mortgagee, the rights and Lessee modifying, canceling or surrendering obligations afforded by this Lease Section 10.04 to a Mortgagee shall be effective exercisable only by the party whose collateral interest in the Premises is senior in lien (or which has obtained the consent of any Mortgagees that are senior to such Mortgagee).
(j) In addition to the other rights, notices and cure periods afforded to the holders of any Mortgage, Landlord further agrees that:
(i) without the prior written consent of the leasehold mortgagee.each holder of a Mortgage, Landlord will neither agree to any modification or amendment of this Lease, nor accept a surrender or cancellation of this Lease;
(ixii) The fee title Landlord shall consider in good faith any modification to the Leased Property Lease requested by a Mortgagee or prospective Mortgagee as a condition or term of granting financing to Tenant, provided that the same does not materially increase Landlord’s obligations or diminish Landlord’s rights and immunities hereunder;
(iii) the leasehold estate created therein pursuant to holder of the provisions of Mortgage most senior in lien priority on this Lease shall not merge but shall always be kept separate and distinct, notwithstanding have the union of such estates in Lessee, Lessor, or right to participate in any other person by purchase, operation of law or otherwise.dispute resolution proceedings under Article 34 hereof;
(civ) If the holder of the Mortgage most senior in lien priority on this Lease shall have the right to participate in the adjustments of any leasehold mortgagee insurance claims of the nature set forth in Article 7 and Article 8 hereof and condemnation awards of the nature set forth in Article 9 hereof and to serve as the Depository (subject to any terms, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); and
(v) at the request of Tenant from time to time, Landlord shall acquire title execute and deliver an instrument addressed to Lessee’s interest the holder of any Mortgage confirming that such holder is a Mortgagee and entitled to the benefit of all provisions contained in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant the Lease which are expressly stated to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance benefit of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunderMortgagees.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Sources: Deed of Lease
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, Tenant and its successors and assignsassigns are hereby given the right by Landlord in addition to any other rights herein granted, shall have the unconditional right without Landlord's prior written consent, to mortgagemortgage its interests in this Lease and any sublease(s) under one or more first leasehold mortgages, pledge and/or and assign this Lease without having to obtain the consent of Lessor. LesseeLease, and any sublease(s) as collateral security for such Mortgage(s), upon the condition that all rights acquired under such Mortgage(s) shall be subject to each and all of the covenants, conditions and restrictions set forth in this Lease, and to all rights and interests of Landlord herein, none of which covenants, conditions or restrictions is or shall be waived by Landlord by reason of the right given to mortgage such interest in this Lease, except as expressly provided herein. If Tenant or its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, assigns shall mortgage this Lease in compliance leasehold, and if the holder(s) of such Mortgage(s) shall send to Landlord a true copy thereof, together with written notice specifying the provisions name and address of this Sectionthe Mortgagee and the pertinent recording date, then if any, with respect to such Mortgage(s) (which notice provision may be satisfied by a letter from the leasehold Mortgagee to Landlord specifying each Building location subject to such mortgage, and that a true and correct form of such leasehold Mortgage is attached to such letter), Landlord agrees that so long as any such mortgage leasehold Mortgage(s) shall remain unsatisfied of recordrecord or until written notice of satisfaction is given by the holder(s) to Landlord, the following provisions shall apply:
(ia) LessorThere shall be no cancellation, surrender or modification of this Lease by joint action of Landlord and Tenant without the prior consent in writing of the leasehold Mortgagee(s).
(b) Landlord shall, upon serving Lessee Tenant with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also simultaneously serve a copy of such notice upon the holder holder(s) of such mortgage, at leasehold Mortgage(s). The leasehold Mortgagee(s) shall thereupon have the address provided for in clause same period (viplus an additional fifteen (15) of this Section 24.1(bdays), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder after service of such mortgagenotice upon it, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remediedremedied the default complained of, and Lessor Landlord shall accept such performance by or at the instance instigation of such holder leasehold Mortgagee(s) as if the same had been made done by LesseeTenant.
(iiic) For Anything herein contained notwithstanding, while such leasehold Mortgage(s) remains unsatisfied of record, or until written notice of satisfaction is given by the purposes of this Articleholder(s) to Landlord, no event of if any default shall be deemed occur which, pursuant to exist in respect any provision of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion entitles Landlord to terminate this Lease, and acquisition shall then be cured with reasonable diligence. Such holderif, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to before the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after from the date of service of notice of termination upon such leasehold Mortgagee(s) such leasehold Mortgagee(s) shall have notified Landlord of its desire to nullify such notice and shall have paid to Landlord all rent and additional rent and other payments herein provided for which are then in default, and shall have complied or shall commence the work of complying with all of the other requirements of this Lease, which are then in default and which are capable of cure by such leasehold Mortgagee(s), and shall prosecute the same to completion with due diligence, then in such event Landlord shall not be entitled to terminate this Lease and any notice of termination theretofore given shall be void and of no effect.
(d) Landlord agrees that the name of the leasehold Mortgagee(s) may be added to the "Loss Payable Endorsement" of any and all insurance policies required to be carried by Tenant hereunder on condition that the insurance proceeds are to be applied in the manner specified in this Lease.
(e) Landlord agrees that, in the event of termination of this Lease has been terminatedby reason of any default by Tenant or rejection in bankruptcy, Lessor shall Landlord will enter into a new lease of the Leased Property with the leasehold Mortgagee(s) or its nominee(s), for the remainder of the term, effective as of the date of such holdertermination, or his designeeat the rent and additional rent and upon the terms, provisions, covenants and agreements as followsherein contained, and to the rights, if any, of any parties then in possession of any part of the Leased Property, provided:
(Bi) Said Mortgagee(s) or its nominee shall make written request upon Landlord for such new lease within thirty (30) days after the date of such termination and such written request is accompanied by payment to Landlord of sums then due to Landlord under this Lease;
(ii) Said Mortgagee(s) or its nominee(s) shall thereafter pay to Landlord at the time of the execution and delivery of said new lease, any and all sums which would at the time of the execution and delivery thereof, be due pursuant to this Lease but for such termination, and in addition thereto, any expenses, including reasonable attorneys' fees, to which Landlord shall have been subjected by reason of such default (after Landlord has applied any security held hereunder);
(iii) Said Mortgagee(s) or its nominee(s) shall thereafter perform and observe all covenants herein contained on Tenant's part to be performed and shall further remedy any other conditions which Tenant under the terminated lease was obligated to perform under the terms of this Lease;
(iv) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow expressly made subject to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to rights, if any, of Tenant under the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new terminated lease.;
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the The tenant under such new lease for shall have the purposes of same right, title and interest in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant and to the request of the holder whose leasehold mortgage shall be prior in lien thereto buildings and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to improvements on the Leased Property and as Tenant had under the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwiseterminated lease.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Sources: Restaurant Lease (Ich Corp /De/)
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right to mortgage, mortgage or pledge and/or assign its interest in this Lease without having to obtain one or more Mortgagees at any time and from time to time during the consent Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in this Lease shall be used only in connection with the costs of Lessor. Lesseepre-development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall have by virtue thereof, acquire any greater rights hereunder than Tenant has, except the unconditional right to sublet all cure or remedy Tenant’s defaults or become entitled to a portion of the Leased Property without having New Lease as more fully set forth in this Section 10.04 and such other rights as are expressly granted to obtain the consent of LessorMortgagees hereunder. Any pledge or assignment of any interests in Lessee No Mortgage shall be permitted without having to obtain the consent of Lessor.
(b) If Lesseeeffective, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder Lease on the part of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required Tenant to be performed; provided however, or that if such Event of acts to be doneDefault exists, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of but this Lease without first giving to has not been terminated and such Event of Default will be cured simultaneously with the holder granting of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of Mortgage or with the mortgaged property (including possession by a receiver) or (y) to instituteproceeds from such Mortgage, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) Tenant may nevertheless enter into such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of LesseeMortgage for Tenant’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.;
(vii) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease Mortgage shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon subject to all the agreements, terms, covenants and conditions hereofof this Lease;
(iii) such Mortgage shall contain and shall be deemed to contain in substance the following provisions:
(A) “This instrument is executed upon condition that (unless this condition be released or waived by the FCRHA under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Lease at any foreclosure sale hereunder, including or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, shall, as a result of such sale or transfer, acquire any applicable right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged as between such transferee and said the FCRHA, unless and until (i) the FCRHA has been given written notice of such sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to the FCRHA a duplicate original or certified copy of the instrument of sale or transfer to the FCRHA.”
(B) “The purchaser or transferee of said Lease shall, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease.”
(C) “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged.”
(D) “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage but only to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease.”
(E) “In the event of foreclosure, the mortgagee shall not name, in such foreclosure action or otherwise, and in any event shall not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) who are not Affiliates of Tenant.”
(F) “This mortgage and all rights of renewal. Upon the mortgagee hereunder are, without the necessity for the execution of such new leaseany further documents, Lessor shall allow subject to the tenant named therein terms of said Lease and such tenant the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with the consent of the mortgagor or its predecessors in interest, or may hereafter be modified, amended or renewed with the consent of the mortgagee, which consent shall not be entitled unreasonably withheld or delayed. Nevertheless, the holder of this mortgage agrees from time to an adjustment in an amount equal time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the net income derived by Lessor from FCRHA written notice of the Leased Property during making of any Mortgage (which notice shall contain the period from name and office address of the date of termination of this Lease to Mortgagee) promptly after the date of execution and delivery of such new leaseMortgage and a duplicate original or certified copy thereof.
(vic) Any If the FCRHA shall have received timely the notice or other communication which Lessor described in Section 10.04(b) above, the FCRHA shall desire or is required to give to or serve upon each Mortgagee, at the holder address of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as Mortgagee set forth in the notice from such mortgage. Any Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice or other communication which given by the holder FCRHA to Tenant hereunder (including any notices of a mortgage on this Lease Event(s) of Default under the Lease) at the same time as and whenever any such notice shall desire or is required thereafter be given by the FCRHA to give to or serve upon Lessor Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as cure period shall be designated by Lessor by notice in writing deemed to have commenced) unless and until a copy thereof shall have been given to each such holder Mortgagee. Upon receipt of such notice, each Mortgagee shall have the right (but not the obligation) to remedy such Event of Default or cause the same to be remedied, within the following additional time periods (in each instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten (10) Business Days more in the case of a monetary Event of Default, and (ii) a period of fifteen (15) Business Days more in the case of a non-monetary Event of Default, or in the case of a non- monetary Event of Default which shall require more than the additional fifteen (15) Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall have commenced to cure (or caused to be commenced such cure) within such additional fifteen (15) Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. The FCRHA shall accept performance by registered mail.
(vii) Effective upon the commencement or on behalf of the term a Mortgagee of any new lease executed pursuant covenant, condition or agreement on Tenant’s part to paragraph (v) of this Sectionbe performed hereunder with the same force and effect as though performed by Tenant, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under so long as such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and performance is made in accordance with the terms and provisions of this Lease. The FCRHA shall not object to any temporary entry onto the Premises by or on behalf of Mortgagee to the extent necessary to effect such new leaseMortgagee’s cure rights, provided such entry is in compliance with all Applicable Laws. If possession of the holders Premises or any part thereof is required in order to cure such Event of more than one Default, Mortgagee shall notify the FCRHA within the applicable period afforded to Mortgagee hereunder.
(d) During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the process of curing (or caused to be commenced such leasehold mortgage cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), the FCRHA will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof. At any time prior to the expiration of the additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send the FCRHA notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), the FCRHA will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall make written requests upon Lessor have first delivered to the FCRHA, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, payment of all Additional Costs and Impositions due hereunder (including further, without limitation, the payment of any Impositions or payments of installments for Impositions are being made to a new lease Depository in accordance with Article 5 above)) within any applicable grace periods. However, at any time after the delivery of the aforementioned agreement, the Mortgagee may notify the FCRHA, in writing, that it has relinquished possession of the Premises or that it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it has discontinued them, and, in such event, the Mortgagee shall have no further liability under such agreement from and after the date it delivers such notice to the FCRHA (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, the FCRHA shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action the FCRHA deems appropriate by reason of any uncured Event of Default by Tenant.
(e) Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee shall not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee shall acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non- monetary Event of Default by Tenant that is not capable of being cured shall no longer be deemed an Event of Default of the acquiring Mortgagee, assignee or transferee of this Lease after such foreclosure or transfer in lieu of foreclosure (provided however, that the FCRHA may continue to pursue any and all remedies at law or in equity against the defaulting Tenant, unless Tenant was released of such obligations, provided further, that any such remedies may not involve the disturbance of quiet possession of any Mortgagee, assignee or transferee of the Premises under this Lease or a New Lease).
(f) With respect to any non-monetary Event of Default, so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee shall be taking the actions required by clause (d) of this Section 10.04, the FCRHA shall not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to (A) dispossess Tenant or other occupants of the Premises, (B) re-enter the Premises, or (C) terminate this Lease or the leasehold estate (such rights described in clauses (i), (ii) and (iii) being herein the “FCRHA’s Termination Rights”). In addition, with respect to any monetary Event of Default, the FCRHA shall not exercise any of the FCRHA’s Termination Rights so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 within the time periods set forth above. Upon any Mortgagee ceasing to diligently exercise such rights and undertaking such activities, the FCRHA may exercise any of the FCRHA’s Termination Rights hereunder. Nothing in the protections to Mortgagees provided in this Lease shall, however, be construed to either (i) extend the Term beyond the stated Fixed Expiration Date provided for in this Lease that would have applied if no Event of Default had occurred or (ii) require such Mortgagee to cure any non-monetary Event of Default by Tenant that is not capable of being cured and as a condition to preserving this Lease or, in the case of a Mortgagee only, to obtaining a New Lease as provided in Section 10.05.
(g) The exercise of any rights or remedies of a Mortgagee under a Mortgage, including the consummation of any foreclosure or transfer in lieu of foreclosure, shall not constitute an Event of Default; provided however, that any assignment of this Lease resulting from any such foreclosure or transfer in lieu of foreclosure to an entity other than a Mortgagee or an Affiliate of such Mortgagee shall be an Event of Default under this Lease unless such assignment meets the requirements of Section 10.03.
(h) Except as provided in clause (d) of this Section 10.04, no Mortgagee shall become liable under the provisions of this SectionLease unless and until such time as it becomes, and then only for so long as it remains, the new lease shall be entered into pursuant to the request owner of the holder whose leasehold mortgage estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and cause such Mortgagee to be deemed to be void a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of no force or effectthe Premises.
(viiii) No agreement between Lessor If there is more than one Mortgagee, the rights and Lessee modifying, canceling or surrendering obligations afforded by this Lease Section 10.04 to a Mortgagee shall be effective exercisable only by the party whose collateral interest in the Premises is senior in lien (or which has obtained the consent of any Mortgagees that are senior to such Mortgagee).
(j) In addition to the other rights, notices and cure periods afforded to the holders of any Mortgage, the FCRHA further agrees that:
(i) without the prior written consent of each holder of a Mortgage, the leasehold mortgagee.
(ix) The fee title FCRHA will neither agree to any material modification or material amendment of this Lease, nor accept a surrender or cancellation of this Lease except in accordance with the Leased Property express terms and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct(e.g., notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.condemnation);
(cii) If The FCRHA shall consider in good faith any leasehold mortgagee shall acquire title modification to Lessee’s interest in this Lease, the Lease requested by foreclosure a Mortgagee or prospective Mortgagee as a condition or term of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant granting financing to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignmentTenant, provided that such assignee assumes the same does not materially increase the FCRHA’s obligations of Lessee or materially diminish the FCRHA’s rights and immunities hereunder.;
(diii) Lessor hereby agrees the holder of the Mortgage most senior in lien priority on this Lease shall have the right to deliver participate in any dispute resolution proceedings under Article 34 hereof;
(iv) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to Lessee a ground lessor estoppel certificate participate in the form reasonably required by adjustments of any leasehold mortgagee insurance claims of Lesseethe nature set forth in Article 7 and Article 8 hereof and condemnation awards of the nature set forth in Article 9 hereof and to serve as the Depository (subject to any terms, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); and
(v) at the request of Tenant from time to time, the FCRHA shall execute and deliver an instrument addressed to the holder of any Mortgage confirming that such holder is a Mortgagee and entitled to the benefit of all provisions contained in the Lease which are expressly stated to be for the benefit of Mortgagees.
Appears in 1 contract
Sources: Lease Agreement
Leasehold Mortgages. To Tenant and every successor and assign of Tenant is hereby given the extent any provision right by Landlord in this Article 24 conflicts or is inconsistent with addition to any other provision of rights herein granted, subject to Landlord’s prior written consent, to mortgage its interests in this Lease, the provisions of this Article 24 shall control.
(a) Lesseeor any part or parts thereof, and its successors any sublease(s) under one or more leasehold mortgage(s) (each, a "Leasehold Mortgage"), and assignsassign this Lease, or any part or parts thereof, and any sublease(s) as collateral security for such Leasehold Mortgage(s), upon the condition that all rights acquired under such Leasehold Mortgage(s) shall, except as otherwise specifically provided herein, be subject to each and all of the covenants, conditions and restrictions set forth in this Lease, and to all rights and interests of Landlord herein, none of which covenants, conditions and restrictions set forth in this Lease is or shall have be waived by Landlord by reason of the unconditional right given so to mortgage such interest in this Lease, except as expressly provided herein. Notwithstanding the foregoing, Tenant shall not create or permit to exist any lien, mortgage, or charge on, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lesseeof, and its successors and assignsor conditional sale or other title retention agreement with respect to, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment encumbrance of any interests kind on Landlord’s interest in Lessee shall be permitted without having to obtain Landlord’s estate and/or interest in the consent of Lessor.
(b) Demised Premises and/or this Lease. If Lessee, or Lessee’s successors or assigns, Tenant shall mortgage this Lease in compliance leasehold, or any part or parts thereof, and if the holder(s) of such Leasehold Mortgage(s) (each, a "Leasehold Mortgagee") shall, within thirty (30) days of its execution, send to Landlord a true copy thereof, together with written notice specifying the provisions name and address of this Sectionthe Leasehold Mortgagee and the pertinent recording date with respect to such Leasehold Mortgage(s), then Landlord agrees that so long as any such mortgage Leasehold Mortgage(s) shall remain unsatisfied of recordrecord or until written notice of satisfaction is given by the applicable Leasehold Mortgagee(s) to Landlord, the following provisions shall apply:
(ia) LessorThere shall be no cancellation, surrender or modification of this Lease by joint action of Landlord and Tenant without the prior consent in writing of the Leasehold Mortgagee(s);
(b) Landlord shall, upon serving Lessee Tenant with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also simultaneously serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (viLeasehold Mortgagee(s). The Leasehold Mortgagee(s) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, thereupon have the right to remedy such default, or cause the same to be remediedremedied the defaults complained of, and Lessor Landlord shall accept such performance by or at the instance instigation of such holder Leasehold Mortgagee(s) as if the same had been made done by LesseeTenant. If Tenant does not cure within the applicable cure period under this Lease, Landlord shall notify Leasehold Mortgagee(s) if it intends to terminate this Lease and Leasehold Mortgagee(s) shall, after receiving such notice, have forty-five (45) days from the date of service of notice of termination upon such Leasehold Mortgagee(s) to notify Landlord of its desire to nullify such notice and shall have paid to Landlord all Rent and other payments herein provided for, and then in default, and shall have complied or shall commence the work of complying with all of the other requirements of this Lease, except as provided in Section (g) hereof, if any are then in default, and shall prosecute the same to completion with reasonable diligence (not to exceed ninety (90) days unless such default cannot reasonably be cured within said ninety (90) day period or possession of the Demised Premises is required for such cure), then in such event Landlord shall not be entitled to terminate this Lease and any notice of termination theretofore given shall be void and of no effect;
(c) If Landlord shall elect to terminate this Lease by reason of any default of Tenant, the Leasehold Mortgagee(s) shall not only have the right to nullify any notice of termination by curing such default, as aforesaid, provided that such Leasehold Mortgagee(s) shall cure or cause to be cured any then existing money defaults and meanwhile pay Rent and comply with and perform all of the other terms, conditions and provisions of this Lease on Tenant’s part to be complied with and performed, other than past non-monetary defaults, and provided further that the Leasehold Mortgagee(s) shall forthwith take steps to acquire or sell Tenant’s interest in this Lease by foreclosure of the Leasehold Mortgage(s) or otherwise and shall prosecute the same to completion with all due diligence.
(iiid) For Subject to the purposes terms of this ArticleSection (b) and (c) above, no event the Leasehold Mortgagee, or its successors, assignees, or any purchaser at a foreclosure sale (each a "Purchaser") shall have the unrestricted right to acquire Tenant’s interest under the Lease by foreclosure, assignment or transfer in lieu of default foreclosure or otherwise, and such acquisition shall not require Landlord’s consent or be deemed a default under the Lease. Upon Landlord’s receipt from Leasehold Mortgagee of written notice of such an acquisition sent to exist Landlord at the address set forth below (or to any other address given by Landlord in respect writing to Leasehold Mortgagee), Landlord shall permit the Purchaser to enter into possession of the performance Property and to hold the same and exercise and enjoy all of work the rights, privileges and benefits of Tenant under the Lease (without any representations or warranties of the validity of such rights), and such acquisition shall constitute an assumption by the Purchaser of Tenant’s obligations under the Lease, provided, however, that the Purchaser shall not be liable for Tenant’s obligations under the Lease until it shall become the owner of the Lease, either by foreclosure or assignment in lieu thereof or otherwise, and then only during the period of time it is the owner of said Lease; provided, however, that, as a condition to the right of the Purchaser to acquire Tenant’s leasehold estate as aforesaid, Purchaser shall promptly upon acquiring the leasehold estate, cure all of the defaults of Tenant under the Lease which are outstanding as of the date of such acquisition of the leasehold estate, except as provided in Section (c) above and (g) below;
(e) Landlord agrees that the name of the Leasehold Mortgagee(s) may be added to the "Loss Payable Endorsement" of any and all insurance policies required to be performed, or of acts carried by Tenant hereunder on condition that the insurance proceeds are to be done, applied in the manner specified in this Lease and that the Leasehold Mortgage(s) or of conditions to be remedied, if steps collateral document shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.so provide;
(ivf) Notwithstanding anything herein contained to Landlord agrees that in the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving by reason of any default by Tenant (other than a monetary default which Leasehold Mortgagee does not cure) that Landlord will enter into a new lease of the Demised Premises with the Leasehold Mortgagee or its nominee(s) for the remainder of the term effective as of the date of such termination, with the same Rent and upon the terms and, provisions, covenants and agreements as herein contained and subject only to the holder same conditions of title as this Lease is subject to on the date of the execution hereof, and to the rights, if any, of any parties then in possession of any part of the Demised Premises, provided:
(i) Said Leasehold Mortgagee(s) or its nominee shall make written request upon Landlord for such new lease within forty-five (45) days after Leasehold Mortgagee receives notice of such mortgage termination and such written notice thereof and a reasonable time thereafter within which either (x) request is accompanied by payment to obtain possession Landlord of the mortgaged property (including possession by a receiver) or (y) sums then due to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest Landlord under this Lease. Provided, however, that: ;
(xii) such holder Said Leasehold Mortgagee(s) or its nominee(s) shall not be obligated pay to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during Landlord at the period of such forbearance with such time of the termsexecution and delivery of said new lease, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that the time of the execution and delivery thereof, be due under pursuant to this Lease but for such termination, and in addition thereto, any expenses, including reasonable attorneys’ fees, to which Landlord shall have been subjected by reason of such default;
(iii) Said Leasehold Mortgagee(s) or its nominee(s) shall perform and observe all covenants herein contained on Tenant’s part to be performed and shall further remedy any other conditions which Tenant under the terminated lease was obligated to perform under the terms of this Lease; and upon execution and delivery of such new lease, any subleases which may have theretofore been assigned and transferred by Tenant to Landlord, as security under this Lease, shall thereupon be deemed to be held by Landlord as security for the performance of all other defaults, if any, of the obligations of Tenant under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:lease;
(Aiv) Upon the written request Landlord shall not warrant possession of the holder of such mortgage, within thirty (30) days after service of such notice that Demised Premises to tenant under the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:lease;
(Bv) Such new lease shall be effective expressly made subject to the rights, if any, of Tenant under this Lease as at terminated; and
(vi) Tenant under such new lease shall have the date same right, title and interest in and to the Building and Improvements on the Demised Premises as Tenant had under this Lease as terminated;
(g) Nothing herein contained shall require the Leasehold Mortgagee(s) or its nominee(s) to cure any default of termination Tenant referred to in the Lease or any other nonmonetary default which are not otherwise curable by Leasehold Mortgagee due to the nature of the default;
(h) Without City’s prior written consent, Developer shall not (a) obtain any financing to be secured by a lien on or security interest in this Lease or the Property, or (b) allow any encumbrance or lien to be created on or attached to this Lease or the Property, whether by voluntary act of the Developer or otherwise. The City shall not unreasonably withhold its consent to any such financing or encumbrance if Developer submits to City an affidavit from Developer and its lender that (i) all funds advanced will be used solely and absolutely for the development and improvement of the Property and for no other purpose whatsoever, (ii) the amount of such financing does not exceed 75% of the greater of (a) the Purchase Price for the Property, if within the first five (5) years of this Lease, or if not, then established by an appraisal performed at Developer’s cost by an independent qualified appraiser with not less than 10 years of experience valuing similar properties in the City of Tempe, or (b) the cost to complete the improvements, and shall (iii) the loan documents provide that City will not be for the remainder required to perform any obligation of Developer other than making regularly-scheduled principal and interest payments on that portion of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow financing allocable to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new leaseProperty.
(vii) Any notice The proceeds from any insurance policies or other communication which Lessor shall desire or is required to give to or serve upon the holder of arising from a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed condemnation are to be void held by any Leasehold Mortgagee(s) and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein distributed pursuant to the provisions of this Lease Lease, but the Leasehold Mortgagee(s) may reserve its rights to apply to the mortgage debt all, or any part, of Tenant’s share of such proceeds not required for restoration pursuant to such Leasehold Mortgage(s);
(k) The Leasehold Mortgagee(s) shall be given notice of any litigation or arbitration proceedings by the parties hereto, and shall have the right to intervene therein and be made a party to such proceedings, and the parties hereto do hereby consent to such intervention. In the event that the Leasehold Mortgagee(s) shall not merge but elect to intervene or become a party to such proceedings, the Leasehold Mortgagee(s) shall always be kept separate receive notice of, and distinct, notwithstanding the union a copy of such estates any award or decision made in Lessee, Lessor, or in any other person by purchase, operation of law or otherwisesaid arbitration proceedings.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract