Covenants of Lessor. If Lessee or any of its direct and/or indirect owners shall execute a Leasehold Mortgage in favor of a Qualified Lender in accordance with this Section 21, Lessor agrees that so long as such Leasehold Mortgage shall remain unsatisfied of record or until written notice of satisfaction is given by the holders of any such Leasehold Mortgage to Lessor, the following provisions shall apply: 21.2.1. There shall be no cancellation, termination (except in accordance with Section 25.3 and Section 25.5 ), surrender, waiver, acceptance of surrender, amendment, change or modification of this Lease without the prior written consent of each Leasehold Mortgagee. Any action requiring the consent of Leasehold Mortgagee hereunder that is taken without such written consent, shall be null and void and of no force or effect, and shall not be binding on any Leasehold Mortgagee (or, following a Leasehold Mortgage Foreclosure, Lessee). 21.2.2. Lessor shall, upon Lessor (or any Person acting on behalf of Lessor) serving Lessee with any notice which would lead to an Event of Default or any termination pursuant to Section 25.3 (to the extent that notice to Lessee is required under such section), simultaneously serve (or cause such Person acting on behalf of Lessor to serve) a copy of such notice upon each Leasehold Mortgagee who has delivered to Lessor a written request for such notices, including an address for notices to such Leasehold Mortgagee. 21.2.3. Each Leasehold Mortgagee shall have the right, but not the obligation, at any time prior to termination of this Lease, to pay all of the Lessor’s Participation Payment or any other charges due hereunder, with all due interest and late charges, to purchase any insurance, to pay any Impositions, to make any repairs, replacements or improvements, to do any other act or thing required of Lessee hereunder, and to do any act or thing which may be necessary and proper to be done in the performance and observance of the agreements, covenants and conditions hereof, including without limitation those necessary to prevent termination of this Lease. As against Lessor, any Leasehold Mortgagee and its agents and contractors shall have full access to the Premises for purposes of accomplishing any of the foregoing during the Lease Term, provided that the Leasehold Mortgagee shall be required to comply with Section 11.3 of this Lease with respect to any work to be performed on the Premises by the Leasehold Mortgagee or its agents or contractors. Any of the foregoing done by any Leasehold Mortgagee shall be as effective (including without limitation to prevent a termination of this Lease) as the same would have been if done by Lessee. 21.2.4. Anything contained in this Lease notwithstanding, if Lessor is entitled to terminate this Lease pursuant to Section 25.3, Lessor shall not be entitled to terminate this Lease, and any notice of same shall be rendered void, if the Leasehold Mortgagee shall cure the Event of Default described in Section 25.3 within the time period granted to Lessee hereunder. Notwithstanding anything to the contrary set forth herein, following the date on which the Leasehold Mortgagee (or its Affiliate) obtains title to and possession of the Premises (or the ownership interests in Lessee, as applicable) any non-monetary default that by its nature is impossible for the Leasehold Mortgagee to cure, despite gaining possession of the Premises (an “Uncurable Default”) shall be deemed cured for purposes of terminating the Lease, as between Lessor and the Leasehold Mortgagee (or Lessee, as applicable) such that Lessor shall not terminate this Lease by reason of such Uncurable Default. For the avoidance of doubt, nothing herein shall require any Leasehold Mortgagee to attempt to cure an Uncurable Default in order to comply with and be entitled to the benefits of the rights set forth in Section 21 with respect to all other monetary defaults and non-monetary defaults. Leasehold Mortgagee shall not be responsible for curing any defaults by Lessee under the Cross-Marketing Agreement first arising or accruing prior to date on which the Leasehold Mortgagee (or its Affiliate) obtains title to and possession of the Premises (or the ownership interests in Lessee, as applicable), but shall be responsible for complying with the terms of the Cross-Marketing Agreement from and after such date. 21.2.5. The right of Lessor to terminate this Lease for cessation of operations pursuant to Section 25.3 shall be subject to, and conditioned upon, Lessor having first given to each Leasehold Mortgagee of which Lessor has been advised in writing, including an address for notices to such Leasehold Mortgagee, written notice of such Event of Default as required under Section 21.2.2 and such Leasehold Mortgagees having failed to remedy such Event of Default or acquire Lessee’s leasehold estate hereunder or commence foreclosure or other appropriate proceedings in the nature thereof as set forth in Section 21.2.4. 21.2.6. If any Leasehold Mortgagee is prohibited from commencing or prosecuting Leasehold Foreclosure or other appropriate proceedings in the nature thereof by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding involving Lessee or its direct and/or indirect owners, the times specified in Section 21.2.4 for commencing or prosecuting Leasehold Foreclosure or other proceedings shall be extended for the period of the prohibition, provided that the Leasehold Mortgagee shall have fully cured any Event of Default in the payment of any monetary obligations of Lessee under this Lease and shall continue to pay currently those monetary obligations as and when the same fall due. 21.2.7. Lessor agrees that the names of each Leasehold Mortgagee may be added by Lessee to the “Mortgagee Endorsement” of any and all insurance policies required to be carried by Lessee under this Lease on condition that the insurance proceeds are to be applied in the manner specified in this Lease. 21.2.8. Leasehold Foreclosure of any Leasehold Mortgage, or any sale thereunder, whether by judicial proceedings or by virtue of any power contained in the Leasehold Mortgage, or any conveyance of the leasehold estate hereunder from Lessee to any Leasehold Mortgagee or its designee through, or in lieu of, Leasehold Foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent of Lessor or constitute a breach of any provision of or an Event of Default under this Lease, and upon such Leasehold Foreclosure, sale or conveyance, Lessor shall recognize the purchaser or other transferee in connection therewith as the Lessee hereunder. 21.2.9. In the event any Leasehold Mortgagee or its designee becomes the Lessee under this Lease (or the owner of direct and/or indirect ownership interests in Lessee, as applicable), such Leasehold Mortgagee or its designee (or the Lessee, as applicable) shall, subject to the foreclosing lender’s obligation to cure all but the Uncurable Defaults, be personally liable for the obligations of Lessee under this Lease or a new lease only for the period that the Leasehold Mortgagee or its designee remains the actual beneficial holder of the leasehold estate hereunder, and only to the extent provided in this Lease or such new lease. 21.2.10. Subject to Applicable Laws, the senior Leasehold Mortgagee may reserve the right to apply to its Leasehold Mortgage debt all, or any part, of Lessee’s share of the proceeds from any insurance policies arising from a Casualty pursuant to the debts secured by such Leasehold Mortgage, up to the amount of indebtedness secured by the Leasehold Mortgage. 21.2.11. Whichever party has the primary obligation to notify any Leasehold Mortgagee hereunder shall give each such Leasehold Mortgagee of which the parties have been notified (including an address for notices), notice of any litigation, or condemnation proceedings, or of any pending adjustment of insurance claims as each may relate to the Premises, and any Leasehold Mortgagee shall have the right, at Leasehold Mortgagee’s expense, to intervene therein and to be made a party to such proceedings. The parties hereto do hereby consent to such intervention. In the event that any such Leasehold Mortgagee shall not elect to intervene or become a party to the proceedings, such Leasehold Mortgagee shall receive notice and a copy of any award or decision made in connection therewith, but any such intervention shall not diminish Lessor’s rights under this Lease. For avoidance of doubt, the parties acknowledge and agree that Lessee shall have the primary obligation to notify any of its Leasehold Mortgagees under this Section 21.2.11; provided, however, Lessor shall give notices to any such Leasehold Mortgagees as required under this Lease. 21.2.12. If required by Leasehold Mortgagee, Lessor shall execute a written agreement (a “Consent Agreement”) among Lessor, Lessee and Leasehold Mortgagee, in a commercially reasonable written agreement as reasonably approved by Lessor, for non-recourse financing, as may be required by Lessee or Leasehold Mortgagee, pursuant to which Lessor shall acknowledge the existence of the Leasehold Mortgage, and, subject to the limitations set forth in Section 21.3 below, make certain commercially reasonable undertakings for the benefit of the Leasehold Mortgagee thereunder, including, without limitation, providing copies of any notices that Lessor may from time to time deliver to Lessee under this Lease.
Appears in 2 contracts
Sources: Ground Lease (MSG Entertainment Spinco, Inc.), Ground Lease (MSG Entertainment Spinco, Inc.)
Covenants of Lessor. If Lessee So long as any Synthetic Lease Loan Lender's Synthetic Lease Loan Commitment remains in effect, any Synthetic Lease Loan remains outstanding and unpaid or any of other amount is owing to any Synthetic Lease Loan Lender with respect to its direct and/or indirect owners shall execute a Leasehold Mortgage Funding Party Balances (as that term is defined in favor of a Qualified Lender the Master Agreement), subject to SECTION 10.02 hereof, the Lessor will promptly pay all amounts payable by it under this Agreement and the Notes issued by it in accordance with the terms hereof and thereof and shall duly perform each of its obligations under this Section 21, Agreement and the Notes. The Lessor agrees to provide to the Administrative Agent a copy of each estoppel certificate that so long as the Lessor proposes to deliver pursuant to SECTION 17.13 of the Lease at least five days prior to such Leasehold Mortgage shall remain unsatisfied of record or until written notice of satisfaction is given delivery and to make any corrections thereto reasonably requested by the holders Administrative Agent prior to such delivery. The Lessor shall keep each Leased Property owned by it free and clear of all Lessor Liens (as that term is defined in the Master Agreement). The Lessor shall not reject any sale of any such Leasehold Mortgage to Lessor, the following provisions shall apply:
21.2.1. There shall be no cancellation, termination (except in accordance with Section 25.3 and Section 25.5 ), surrender, waiver, acceptance of surrender, amendment, change or modification of this Lease without the prior written consent of each Leasehold Mortgagee. Any action requiring the consent of Leasehold Mortgagee hereunder that is taken without such written consent, shall be null and void and of no force or effect, and shall not be binding on any Leasehold Mortgagee (or, following a Leasehold Mortgage Foreclosure, Lessee).
21.2.2. Lessor shall, upon Lessor (or any Person acting on behalf of Lessor) serving Lessee with any notice which would lead to an Event of Default or any termination Leased Property pursuant to Section 25.3 (to 14.6 of the extent that notice to Lessee is required under such section), simultaneously serve (or cause such Person acting on behalf of Lessor to serve) a copy of such notice upon each Leasehold Mortgagee who has delivered to Lessor a written request for such notices, including an address for notices to such Leasehold Mortgagee.
21.2.3. Each Leasehold Mortgagee shall have the right, but not the obligation, at any time prior to termination of this Lease, to pay Lease unless all of the Lessor’s Participation Payment or any other charges due hereunder, with all due interest and late charges, to purchase any insurance, to pay any Impositions, to make any repairs, replacements or improvements, to do any other act or thing required of Lessee hereunder, and to do any act or thing which may be necessary and proper to be done in the performance and observance of the agreements, covenants and conditions hereof, including without limitation those necessary to prevent termination of this Lease. As against Lessor, any Leasehold Mortgagee and its agents and contractors shall have full access to the Premises for purposes of accomplishing any of the foregoing during the related Synthetic Lease Term, provided that the Leasehold Mortgagee shall be required to comply with Section 11.3 of this Lease with respect to any work to be performed on the Premises by the Leasehold Mortgagee or its agents or contractors. Any of the foregoing done by any Leasehold Mortgagee shall be as effective (including without limitation to prevent a termination of this Lease) as the same would Loans have been if done by Lessee.
21.2.4. Anything contained paid in this Lease notwithstanding, if Lessor is entitled to terminate this Lease pursuant to Section 25.3, Lessor shall not be entitled to terminate this Lease, and any notice of same shall be rendered void, if the Leasehold Mortgagee shall cure the Event of Default described in Section 25.3 within the time period granted to Lessee hereunder. Notwithstanding anything to the contrary set forth herein, following the date on which the Leasehold Mortgagee (or its Affiliate) obtains title to and possession of the Premises (full or the ownership interests in Lessee, as applicable) any non-monetary default that by its nature is impossible for the Leasehold Mortgagee to cure, despite gaining possession of the Premises (an “Uncurable Default”) shall be deemed cured for purposes of terminating the Lease, as between Lessor and the Leasehold Mortgagee (or Lessee, as applicable) such that Lessor shall not terminate this Synthetic Lease by reason of such Uncurable Default. For the avoidance of doubt, nothing herein shall require any Leasehold Mortgagee to attempt to cure an Uncurable Default in order to comply with and be entitled to the benefits of the rights set forth in Section 21 with respect to all other monetary defaults and non-monetary defaults. Leasehold Mortgagee shall not be responsible for curing any defaults by Lessee under the Cross-Marketing Agreement first arising or accruing prior to date on which the Leasehold Mortgagee (or its Affiliate) obtains title to and possession of the Premises (or the ownership interests in Lessee, as applicable), but shall be responsible for complying with the terms of the Cross-Marketing Agreement from and after such date.
21.2.5. The right of Lessor to terminate this Lease for cessation of operations pursuant to Section 25.3 shall be subject to, and conditioned upon, Lessor having first given to each Leasehold Mortgagee of which Lessor has been advised in writing, including an address for notices to such Leasehold Mortgagee, written notice of such Event of Default as required under Section 21.2.2 and such Leasehold Mortgagees having failed to remedy such Event of Default or acquire Lessee’s leasehold estate hereunder or commence foreclosure or other appropriate proceedings in the nature thereof as set forth in Section 21.2.4.
21.2.6. If any Leasehold Mortgagee is prohibited from commencing or prosecuting Leasehold Foreclosure or other appropriate proceedings in the nature thereof by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding involving Lessee or its direct and/or indirect owners, the times specified in Section 21.2.4 for commencing or prosecuting Leasehold Foreclosure or other proceedings shall be extended for the period of the prohibition, provided that the Leasehold Mortgagee shall have fully cured any Event of Default in the payment of any monetary obligations of Lessee under this Lease and shall continue to pay currently those monetary obligations as and when the same fall due.
21.2.7. Lessor agrees that the names of each Leasehold Mortgagee may be added by Lessee to the “Mortgagee Endorsement” of any and all insurance policies required to be carried by Lessee under this Lease on condition that the insurance proceeds are to be applied in the manner specified in this Lease.
21.2.8. Leasehold Foreclosure of any Leasehold Mortgage, or any sale thereunder, whether by judicial proceedings or by virtue of any power contained in the Leasehold Mortgage, or any conveyance of the leasehold estate hereunder from Lessee to any Leasehold Mortgagee or its designee through, or in lieu of, Leasehold Foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent of Lessor or constitute a breach of any provision of or an Event of Default under this Lease, and upon such Leasehold Foreclosure, sale or conveyance, Lessor shall recognize the purchaser or other transferee in connection therewith as the Lessee hereunder.
21.2.9. In the event any Leasehold Mortgagee or its designee becomes the Lessee under this Lease (or the owner of direct and/or indirect ownership interests in Lessee, as applicable), such Leasehold Mortgagee or its designee (or the Lessee, as applicable) shall, subject to the foreclosing lender’s obligation to cure all but the Uncurable Defaults, be personally liable for the obligations of Lessee under this Lease or a new lease only for the period that the Leasehold Mortgagee or its designee remains the actual beneficial holder of the leasehold estate hereunder, and only to the extent provided in this Lease or such new lease.
21.2.10. Subject to Applicable Laws, the senior Leasehold Mortgagee may reserve the right to apply to its Leasehold Mortgage debt all, or any part, of Lessee’s share of the proceeds from any insurance policies arising from a Casualty pursuant to the debts secured by such Leasehold Mortgage, up to the amount of indebtedness secured by the Leasehold Mortgage.
21.2.11. Whichever party has the primary obligation to notify any Leasehold Mortgagee hereunder shall give each such Leasehold Mortgagee of which the parties have been notified (including an address for notices), notice of any litigation, or condemnation proceedings, or of any pending adjustment of insurance claims as each may relate to the Premises, and any Leasehold Mortgagee shall have the right, at Leasehold Mortgagee’s expense, to intervene therein and to be made a party to such proceedings. The parties hereto do hereby Loan Lenders consent to such interventionrejection. In the event that the Synthetic Lease Loan Lenders reject any sale of any Leased Property pursuant to Section 14.6 of the Lease, the Lessor agrees to take such action as the Synthetic Lease Lenders request to effect a sale or other disposition of such Leased Property, PROVIDED that (i) the Lessor shall not be required to expend its own funds in connection therewith or take any action that would, in the Lessor's reasonable judgment, expose the Lessor to expense, liability, loss or damage unless the Synthetic Lease Lenders provide to the Lessor an indemnity, in a form and substance reasonably acceptable to the Lessor, for such liability, or expense, or unless and until the Synthetic Lease Lenders advance to the Lessor an amount that is sufficient, in the Lessor's reasonable judgment, to cover such liability, expense, loss or damage (excluding the Lessor's PRO RATA share thereof, if any), (ii) Lessor shall not be required to undertake any action that would be a violation of Applicable Law (as that term is defined in the Master Agreement) and (iii) the Lessor shall not be required to under take any such Leasehold Mortgagee shall not elect action that would cause the Lessor to intervene violate, or become a party to the proceedingsbe in default under, such Leasehold Mortgagee shall receive notice and a copy of any award or decision made in connection therewith, but any such intervention shall not diminish Lessor’s rights under this Lease. For avoidance of doubt, the parties acknowledge and agree that Lessee shall have the primary obligation to notify any of its Leasehold Mortgagees under this other agreements or contracts; provided that such other agreements or contracts do not preclude any Synthetic Lease Lender from exercising any of its remedies expressly set forth in the Operative Documents. In the event that the Construction Administrative Agent returns any Leased Property to the Lessor pursuant to Section 21.2.11; provided5.3(a) of the Construction Agency Agreement, howeverunless all of the related Synthetic Lease Loans are paid in full, the Lessor agrees to take such action as the Synthetic Lease Lenders request to complete the Construction, or to effect a sale or other disposition, of such Leased Property, PROVIDED that (i) the Lessor shall give notices not be required to expend its own funds in connection therewith or take any such Leasehold Mortgagees as required under this Lease.
21.2.12. If required by Leasehold Mortgageeaction that would, in the Lessor's reasonable judgment, expose the Lessor shall execute a written agreement (a “Consent Agreement”) among Lessorto expense, Lessee and Leasehold Mortgageeliability, loss or damage unless the Synthetic Lease Lenders provide to the Lessor an indemnity, in a commercially reasonable written agreement as form and substance reasonably approved by acceptable to the Lessor, for non-recourse financingsuch liability, as may or expense, or unless and until the Synthetic Lease Lenders advance to the Lessor an amount that is sufficient, in the Lessor's reasonable judgment, to cover such liability, expense, loss or damage (excluding the Lessor's PRO RATA share thereof, if any), (ii) Lessor shall not be required by Lessee or Leasehold Mortgagee, pursuant to which undertake any action that would be a violation of Applicable Law (as that term is defined in the Master Agreement) and (iii) the Lessor shall acknowledge not be required to under take any such action that would cause the existence Lessor to violate, or be in default under, any of the Leasehold Mortgage, and, subject to the limitations its other agreements or contracts; provided that such other agreements or contracts do not preclude any Synthetic Lease Lender from exercising any of its remedies expressly set forth in Section 21.3 belowthe Operative Documents. During the Construction Term for each Leased Property, make certain commercially reasonable undertakings for the benefit Lessor agrees to assume liability for, and to indemnify, protect, defend, save and hold harmless the Administrative Agent and each Synthetic Lease Loan Lender, on an After-Tax Basis (as that term is defined in the Master Agreement) from and against, any and all Claims (as that term is defined in the Master Agreement) that may be imposed on, incurred by or asserted or threatened to be asserted against the Administrative Agent or any Synthetic Lease Loan Lender, in any way relating to or arising out of the Leasehold Mortgagee thereundercircumstances set forth in clauses (i) through (iv) of the first sentence of Section 3.3 of the Construction Agency Agreement, including, without limitation, providing copies of PROVIDED that the Lessor shall only be obligated pursuant to this sentence to the extent that the Lessor receives payment from the Construction Administrative Agent (as defined in the Master Agreement) or any notices that Lessor may from time other Person with respect to time deliver to Lessee under this Leasesuch Claim.
Appears in 1 contract
Sources: Fourth Amended and Restated Credit Agreement (Cornell Companies Inc)
Covenants of Lessor. If Lessee or any of its direct and/or indirect owners shall execute a Leasehold Mortgage in favor of a Qualified Lender in accordance with this Section 21, Lessor agrees that so long as such Leasehold Mortgage shall remain unsatisfied of record or until written notice of satisfaction is given by (a) From the holders of any such Leasehold Mortgage to Lessor, the following provisions shall apply:
21.2.1. There shall be no cancellation, termination (except in accordance with Section 25.3 and Section 25.5 ), surrender, waiver, acceptance of surrender, amendment, change or modification date of this Lease through the initial term thereof and during any renewal thereof, as long as Lessee is not in default hereunder and subject to any necessary governmental approval:
(1) Lessor shall take all action, insofar as within its control, necessary to maintain and preserve to the extent of its rights and powers its corporate existence, subject to the provisions of Section 16(c) hereof.
(2) Lessor shall not issue, without the prior written consent of each Leasehold Mortgagee. Any action requiring the consent of Leasehold Mortgagee hereunder that is taken without such written consentLessee, shall be null and void and of no force or effect, and which shall not be binding on unreasonably withheld, any Leasehold Mortgagee stock (oror options to purchase such stock) except in substitution for capital stock lost, following a Leasehold Mortgage Foreclosurestolen, Lessee)damaged or mutilated, or in connection with transfers or changes in registration of its capital stock, or as otherwise may be required by law.
21.2.2. (3) Lessor shall, upon Lessor (shall permit at any and all reasonable times such person or any Person acting on behalf of Lessor) serving persons as Lessee with any notice which would lead may designate to an Event of Default or any termination pursuant to Section 25.3 (to inspect the extent that notice to Lessee is required under such section), simultaneously serve (or cause such Person acting on behalf books and records of Lessor for any purpose whatsoever, and Lessee shall permit at any and all reasonable times such person or persons as Lessor may designate to serve) a copy inspect the books and records of such notice upon each Leasehold Mortgagee who has delivered to Lessor a written request Lessee for such notices, including an address for notices to such Leasehold Mortgageeany purpose whatsoever.
21.2.3. Each Leasehold Mortgagee shall have the right, but not the obligation, at any time prior to termination of this Lease, to pay all of the Lessor’s Participation Payment or any other charges due hereunder, with all due interest and late charges, to purchase any insurance, to pay any Impositions, to make any repairs, replacements or improvements, to do any other act or thing required of Lessee hereunder, and to do any act or thing which may be necessary and proper to be done in the performance and observance of the agreements, covenants and conditions hereof, including without limitation those necessary to prevent termination of this Lease. As against Lessor, any Leasehold Mortgagee and its agents and contractors shall have full access to the Premises for purposes of accomplishing any of the foregoing during the Lease Term, provided that the Leasehold Mortgagee shall be required to comply with Section 11.3 of this Lease (4) Except with respect to rent received by Lessor under the provisions of Section 4(a) hereof or as otherwise permitted by Section 2 hereof in respect of nondemised property or by Section 16(c) hereof in respect of a transfer by Lessor of its demised property subject to the Lease, Lessor shall not, without the prior written consent of Lessee, which shall not be unreasonably withheld, make any work to be performed on the Premises by the Leasehold Mortgagee payments, gifts, donations or its agents or contractors. Any other dispositions of any part of the foregoing done by demised property, enter into any Leasehold Mortgagee employment contracts providing for terms of over one year, or pay or incur any liability for salaries, bonuses, pensions or other compensation other than in the ordinary course of business or pursuant to its established plans or practices.
(5) Lessor shall be as effective not borrow any money, assume any guaranty, make advances (including without limitation except pursuant to prevent a termination commitments made prior to the date of this Lease) as the same would have been if done by Lessee.
21.2.4. Anything contained in this Lease notwithstandingor enter into an agreement to make advances, if Lessor is entitled including advances to terminate this Lease pursuant to Section 25.3, Lessor shall not be entitled to terminate this Lease, and any notice of same shall be rendered void, if the Leasehold Mortgagee shall cure the Event of Default described in Section 25.3 within the time period granted to Lessee hereunder. Notwithstanding anything to the contrary set forth herein, following the date on which the Leasehold Mortgagee (a debtor or its Affiliate) obtains title to and possession of the Premises (or the ownership interests in Lessee, as applicable) any non-monetary default that by its nature is impossible for the Leasehold Mortgagee to cure, despite gaining possession of the Premises (an “Uncurable Default”) shall be deemed cured for purposes of terminating the Lease, as between Lessor and the Leasehold Mortgagee (or Lessee, as applicable) such that Lessor shall not terminate this Lease by reason of such Uncurable Default. For the avoidance of doubt, nothing herein shall require any Leasehold Mortgagee to attempt to cure an Uncurable Default debtors in order to comply provide the latter with and funds with which to pay the principal of, premium, if any, or interest on indebtedness, or issue any bonds, debentures, notes or other indebtedness, except for bonds, debentures or notes issued in substitution for bonds, debentures or notes lost, stolen or mutilated, or in connection with transfers, changes in registration, partial payments, or as otherwise may be entitled to the benefits of the rights set forth in Section 21 with respect to all other monetary defaults and non-monetary defaults. Leasehold Mortgagee shall not be responsible for curing any defaults required by Lessee under the Cross-Marketing Agreement first arising law or accruing prior to date on which the Leasehold Mortgagee (or its Affiliate) obtains title to and possession of the Premises (or the ownership interests in Lessee, as applicable), but shall be responsible for complying with by the terms of the Cross-Marketing Agreement from and after such date.
21.2.5. The right of Lessor to terminate this Lease for cessation of operations indenture pursuant to Section 25.3 shall be subject towhich such bonds, and conditioned upon, Lessor having first given to each Leasehold Mortgagee of which Lessor has been advised in writing, including an address for notices to such Leasehold Mortgagee, written notice of such Event of Default as required under Section 21.2.2 and such Leasehold Mortgagees having failed to remedy such Event of Default debentures or acquire Lessee’s leasehold estate hereunder or commence foreclosure or other appropriate proceedings in the nature thereof as set forth in Section 21.2.4.
21.2.6. If any Leasehold Mortgagee is prohibited from commencing or prosecuting Leasehold Foreclosure or other appropriate proceedings in the nature thereof by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding involving Lessee or its direct and/or indirect owners, the times specified in Section 21.2.4 for commencing or prosecuting Leasehold Foreclosure or other proceedings shall be extended for the period of the prohibition, provided that the Leasehold Mortgagee shall have fully cured any Event of Default in the payment of any monetary obligations of Lessee under this Lease and shall continue to pay currently those monetary obligations as and when the same fall due.
21.2.7. Lessor agrees that the names of each Leasehold Mortgagee may be added by Lessee to the “Mortgagee Endorsement” of any and all insurance policies required to be carried by Lessee under this Lease on condition that the insurance proceeds are to be applied in the manner specified in this Lease.
21.2.8. Leasehold Foreclosure of any Leasehold Mortgage, or any sale thereunder, whether by judicial proceedings or by virtue of any power contained in the Leasehold Mortgage, or any conveyance of the leasehold estate hereunder from Lessee to any Leasehold Mortgagee or its designee through, or in lieu of, Leasehold Foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent of Lessor or constitute a breach of any provision of or an Event of Default under this Lease, and upon such Leasehold Foreclosure, sale or conveyance, Lessor shall recognize the purchaser or other transferee in connection therewith as the Lessee hereunder.
21.2.9. In the event any Leasehold Mortgagee or its designee becomes the Lessee under this Lease (or the owner of direct and/or indirect ownership interests in Lessee, as applicable), such Leasehold Mortgagee or its designee (or the Lessee, as applicable) shall, subject to the foreclosing lender’s obligation to cure all but the Uncurable Defaults, be personally liable for the obligations of Lessee under this Lease or a new lease only for the period that the Leasehold Mortgagee or its designee remains the actual beneficial holder of the leasehold estate hereunder, and only to the extent provided in this Lease or such new lease.
21.2.10. Subject to Applicable Laws, the senior Leasehold Mortgagee may reserve the right to apply to its Leasehold Mortgage debt all, or any part, of Lessee’s share of the proceeds from any insurance policies arising from a Casualty pursuant to the debts secured by such Leasehold Mortgage, up to the amount of indebtedness secured by the Leasehold Mortgage.
21.2.11. Whichever party has the primary obligation to notify any Leasehold Mortgagee hereunder shall give each such Leasehold Mortgagee of which the parties have been notified (including an address for notices), notice of any litigation, or condemnation proceedings, or of any pending adjustment of insurance claims as each may relate to the Premises, and any Leasehold Mortgagee shall have the right, at Leasehold Mortgagee’s expense, to intervene therein and to be made a party to such proceedings. The parties hereto do hereby consent to such intervention. In the event that any such Leasehold Mortgagee shall not elect to intervene or become a party to the proceedings, such Leasehold Mortgagee shall receive notice and a copy of any award or decision made in connection therewith, but any such intervention shall not diminish Lessor’s rights under this Lease. For avoidance of doubt, the parties acknowledge and agree that Lessee shall have the primary obligation to notify any of its Leasehold Mortgagees under this Section 21.2.11notes were issued; provided, however, that, notwithstanding the foregoing, between the date of this Lease and the commencement of the initial term of this Lease, Lessor may, without the consent of Lessee, at any time and from time to time (i) use its available cash or the equivalent for the purpose of paying or discharging to the extent possible its then existing liabilities, or (ii) borrow money for working capital purposes and issue its promissory notes in evidence thereof, provided that no such borrowing shall have a maturity longer than two years from the date of each borrowing and provided that there shall not be principal amounts of such borrowing outstanding at any one time in excess of $1.5 million. In calculating such limitation, no amount shall be included for any amount due the Pittsburgh National Bank under a note dated July 21, 1961, the original principal of which was $448,500, or any renewal thereof.
(b) After the commencement of the term of this Lease and during any renewal thereof:
(1) Lessor shall give notices not declare any dividend on its common stock in an amount exceeding
(i) Nondemised property (and nondemised property substituted therefor), the proceeds thereof and income therefrom, and
(ii) The rent paid or to any such Leasehold Mortgagees as required under this Lease.
21.2.12. If required by Leasehold Mortgagee, Lessor shall execute a written agreement (a “Consent Agreement”) among Lessor, Lessee and Leasehold Mortgagee, in a commercially reasonable written agreement as reasonably approved by Lessor, for non-recourse financing, as may be required by Lessee or Leasehold Mortgagee, paid pursuant to which Section 4(a) hereof, less any income taxes payable in respect thereof and less any taxes or obligations incurred by Lessor shall acknowledge the existence of the Leasehold Mortgage, and, subject to the limitations set forth in Section 21.3 below, make certain commercially reasonable undertakings solely for the benefit of its stockholders or reasonably allocable thereto or in connection with nondemised property or reasonably allocable thereto.
(2) Lessor, so Tong as and to the Leasehold Mortgagee thereunderextent that it possesses the power of eminent domain, includingshall exercise or permit Lessee to exercise in its name the power of eminent domain in respect of any property desired by Lessee to be taken. All expenses of Lessor in connection therewith, without limitationincluding sums payable for property or rights taken, providing shall be paid by Lessee or reimbursed to Lessor by Lessee,
(3) Lessor shall, at the request of Lessee, take such actions and institute such proceedings as may be necessary to alter, continue, ▇▇▇▇▇ or extend any part of the demised property or to enable Lessee to operate any part of the demised property in an efficient and economical manner, provided that such actions or proceedings are not contrary to any other term or provision of this Lease or any agreement to which Lessor is a party.
(4) Lessor shall when requested by Lessee, to the extent permitted by law, modify, extend, terminate, abandon or surrender any existing leases, agency, trackage or other contracts or agreements made by Lessor or any of its predecessors in title, or enter into any such new agreements, whenever in the judgment of Lessee such modification, extension, termination, abandonment, surrender or making of a new agreement would be beneficial to Lessee, but not in disregard of any mortgages or other agreements covering such demised property.
(c) Between the date of this Lease and the commencement of the term of this Lease:
(1) Lessor shall keep and maintain the demised property in accordance with usual and accepted practices so that on the commencement of the term of this Lease the demised property will be in as good condition as it is now, ordinary wear and tear excepted.
(2) Lessor shall not pay any dividends on its capital stock.
(d) Lessor represents and warrants that its General Balance Sheet as of March 31, 1962, copies of which have been furnished Lessee, fairly presents the assets and liabilities of Lessor as of that date in accordance with accounting principles and practices approved by the Interstate Commerce Commission; and that, to its knowledge, Lessor does not have any notices that Lessor may from time material liabilities, direct or contingent,' including without limitation tax liabilities, not shown on such General Balance Sheet or the related notes thereto, or otherwise disclosed in writing; and that, since the date of such General Balance Sheet to time deliver to Lessee under the date of execution of this Lease, there has not been any material adverse change in Lessor's financial condition from that set forth in such General Balance Sheet other than changes arising in the usual and ordinary course of business.
Appears in 1 contract
Sources: Lease Agreement (Power REIT)
Covenants of Lessor. If Lessee So long as any Synthetic Lease Loan Lender's Synthetic Lease Loan Commitment remains in effect, any Synthetic Lease Loan remains outstanding and unpaid or any of other amount is owing to any Synthetic Lease Loan Lender with respect to its direct and/or indirect owners shall execute a Leasehold Mortgage Funding Party Balances (as that term is defined in favor of a Qualified Lender the Master Agreement), subject to Section 10.02 hereof, the Lessor will promptly pay all amounts payable by it under this Agreement and the Notes issued by it in accordance with the terms hereof and thereof and shall duly perform each of its obligations under this Section 21, Agreement and the Notes. The Lessor agrees that so long as such Leasehold Mortgage shall remain unsatisfied of record or until written notice of satisfaction is given by to provide to the holders of any such Leasehold Mortgage to Lessor, the following provisions shall apply:
21.2.1. There shall be no cancellation, termination (except in accordance with Section 25.3 and Section 25.5 ), surrender, waiver, acceptance of surrender, amendment, change or modification of this Lease without the prior written consent Agent a copy of each Leasehold Mortgagee. Any action requiring estoppel certificate that the consent of Leasehold Mortgagee hereunder that is taken without such written consent, shall be null and void and of no force or effect, and shall not be binding on any Leasehold Mortgagee (or, following a Leasehold Mortgage Foreclosure, Lessee).
21.2.2. Lessor shall, upon Lessor (or any Person acting on behalf of Lessor) serving Lessee with any notice which would lead proposes to an Event of Default or any termination deliver pursuant to Section 25.3 (to 17.13 of the extent that notice to Lessee is required under such section), simultaneously serve (or cause such Person acting on behalf of Lessor to serve) a copy of such notice upon each Leasehold Mortgagee who has delivered to Lessor a written request for such notices, including an address for notices Lease at least five days prior to such Leasehold Mortgagee.
21.2.3. Each Leasehold Mortgagee shall have delivery and to make any corrections thereto reasonably requested by the right, but not the obligation, at any time Agent prior to termination such delivery. The Lessor shall keep each Leased Property owned by it free and clear of this Lease, all Lessor Liens (as that term is defined in the Master Agreement). The Lessor shall not reject any sale of any Leased Property pursuant to pay Section 14.6 of the Lease unless all of the Lessor’s Participation Payment or any other charges due hereunder, with all due interest and late charges, to purchase any insurance, to pay any Impositions, to make any repairs, replacements or improvements, to do any other act or thing required of Lessee hereunder, and to do any act or thing which may be necessary and proper to be done in the performance and observance of the agreements, covenants and conditions hereof, including without limitation those necessary to prevent termination of this Lease. As against Lessor, any Leasehold Mortgagee and its agents and contractors shall have full access to the Premises for purposes of accomplishing any of the foregoing during the related Synthetic Lease Term, provided that the Leasehold Mortgagee shall be required to comply with Section 11.3 of this Lease with respect to any work to be performed on the Premises by the Leasehold Mortgagee or its agents or contractors. Any of the foregoing done by any Leasehold Mortgagee shall be as effective (including without limitation to prevent a termination of this Lease) as the same would Loans have been if done by Lessee.
21.2.4. Anything contained paid in this Lease notwithstanding, if Lessor is entitled to terminate this Lease pursuant to Section 25.3, Lessor shall not be entitled to terminate this Lease, and any notice of same shall be rendered void, if the Leasehold Mortgagee shall cure the Event of Default described in Section 25.3 within the time period granted to Lessee hereunder. Notwithstanding anything to the contrary set forth herein, following the date on which the Leasehold Mortgagee (or its Affiliate) obtains title to and possession of the Premises (full or the ownership interests in Lessee, as applicable) any non-monetary default that by its nature is impossible for the Leasehold Mortgagee to cure, despite gaining possession of the Premises (an “Uncurable Default”) shall be deemed cured for purposes of terminating the Lease, as between Lessor and the Leasehold Mortgagee (or Lessee, as applicable) such that Lessor shall not terminate this Synthetic Lease by reason of such Uncurable Default. For the avoidance of doubt, nothing herein shall require any Leasehold Mortgagee to attempt to cure an Uncurable Default in order to comply with and be entitled to the benefits of the rights set forth in Section 21 with respect to all other monetary defaults and non-monetary defaults. Leasehold Mortgagee shall not be responsible for curing any defaults by Lessee under the Cross-Marketing Agreement first arising or accruing prior to date on which the Leasehold Mortgagee (or its Affiliate) obtains title to and possession of the Premises (or the ownership interests in Lessee, as applicable), but shall be responsible for complying with the terms of the Cross-Marketing Agreement from and after such date.
21.2.5. The right of Lessor to terminate this Lease for cessation of operations pursuant to Section 25.3 shall be subject to, and conditioned upon, Lessor having first given to each Leasehold Mortgagee of which Lessor has been advised in writing, including an address for notices to such Leasehold Mortgagee, written notice of such Event of Default as required under Section 21.2.2 and such Leasehold Mortgagees having failed to remedy such Event of Default or acquire Lessee’s leasehold estate hereunder or commence foreclosure or other appropriate proceedings in the nature thereof as set forth in Section 21.2.4.
21.2.6. If any Leasehold Mortgagee is prohibited from commencing or prosecuting Leasehold Foreclosure or other appropriate proceedings in the nature thereof by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding involving Lessee or its direct and/or indirect owners, the times specified in Section 21.2.4 for commencing or prosecuting Leasehold Foreclosure or other proceedings shall be extended for the period of the prohibition, provided that the Leasehold Mortgagee shall have fully cured any Event of Default in the payment of any monetary obligations of Lessee under this Lease and shall continue to pay currently those monetary obligations as and when the same fall due.
21.2.7. Lessor agrees that the names of each Leasehold Mortgagee may be added by Lessee to the “Mortgagee Endorsement” of any and all insurance policies required to be carried by Lessee under this Lease on condition that the insurance proceeds are to be applied in the manner specified in this Lease.
21.2.8. Leasehold Foreclosure of any Leasehold Mortgage, or any sale thereunder, whether by judicial proceedings or by virtue of any power contained in the Leasehold Mortgage, or any conveyance of the leasehold estate hereunder from Lessee to any Leasehold Mortgagee or its designee through, or in lieu of, Leasehold Foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent of Lessor or constitute a breach of any provision of or an Event of Default under this Lease, and upon such Leasehold Foreclosure, sale or conveyance, Lessor shall recognize the purchaser or other transferee in connection therewith as the Lessee hereunder.
21.2.9. In the event any Leasehold Mortgagee or its designee becomes the Lessee under this Lease (or the owner of direct and/or indirect ownership interests in Lessee, as applicable), such Leasehold Mortgagee or its designee (or the Lessee, as applicable) shall, subject to the foreclosing lender’s obligation to cure all but the Uncurable Defaults, be personally liable for the obligations of Lessee under this Lease or a new lease only for the period that the Leasehold Mortgagee or its designee remains the actual beneficial holder of the leasehold estate hereunder, and only to the extent provided in this Lease or such new lease.
21.2.10. Subject to Applicable Laws, the senior Leasehold Mortgagee may reserve the right to apply to its Leasehold Mortgage debt all, or any part, of Lessee’s share of the proceeds from any insurance policies arising from a Casualty pursuant to the debts secured by such Leasehold Mortgage, up to the amount of indebtedness secured by the Leasehold Mortgage.
21.2.11. Whichever party has the primary obligation to notify any Leasehold Mortgagee hereunder shall give each such Leasehold Mortgagee of which the parties have been notified (including an address for notices), notice of any litigation, or condemnation proceedings, or of any pending adjustment of insurance claims as each may relate to the Premises, and any Leasehold Mortgagee shall have the right, at Leasehold Mortgagee’s expense, to intervene therein and to be made a party to such proceedings. The parties hereto do hereby Loan Lenders consent to such interventionrejection. In the event that the Synthetic Lease Loan Lenders reject any sale of any Leased Property pursuant to Section 14.6 of the Lease, the Lessor agrees to take such Leasehold Mortgagee action as the Synthetic Lease Lenders reasonably request to effect a sale or other disposition of such Leased Property, PROVIDED that the Lessor shall not elect be required to intervene expend its own funds in connection with such sale or become a party disposition. In the event that the Construction Agent returns any Leased Property to the proceedingsLessor pursuant to Section 5.3(a) of the Construction Agency Agreement, unless all of the related Synthetic Lease Loans are paid in full, the Lessor agrees to take such Leasehold Mortgagee action as the Synthetic Lease Lenders reasonably request to complete the Construction, or to effect a sale or other disposition, of such Leased Property, PROVIDED that the Lessor shall receive notice and a copy of any award or decision made not be required to expend its own funds in connection therewith, but any such intervention shall not diminish Lessor’s rights under this Lease. For avoidance of doubtDuring the Construction Term for each Leased Property, the parties acknowledge Lessor agrees to assume liability for, and agree to indemnify, protect, defend, save and hold harmless the Agent and each Synthetic Lease Loan Lender, on an After-Tax Basis (as that Lessee shall have term is defined in the primary obligation Master Agreement) from and against, any and all Claims (as that term is defined in the Master Agreement) that may be imposed on, incurred by or asserted or threatened to notify be asserted against the Agent or any of its Leasehold Mortgagees under this Section 21.2.11; provided, however, Lessor shall give notices to any such Leasehold Mortgagees as required under this Lease.
21.2.12. If required by Leasehold Mortgagee, Lessor shall execute a written agreement (a “Consent Agreement”) among Lessor, Lessee and Leasehold MortgageeSynthetic Lease Loan Lender, in a commercially reasonable written agreement as reasonably approved by Lessor, for non-recourse financing, as may be required by Lessee any way relating to or Leasehold Mortgagee, pursuant to which Lessor shall acknowledge the existence arising out of the Leasehold Mortgage, and, subject to the limitations circumstances set forth in Section 21.3 below, make certain commercially reasonable undertakings for the benefit clauses (i) through (iv) of the Leasehold Mortgagee thereunderfirst sentence of Section 3.3 of the Construction Agency Agreement, including, without limitation, providing copies of PROVIDED that the Lessor shall only be obligated pursuant to this sentence to the extent that the Lessor receives payment from the Construction Agent or any notices that Lessor may from time other Person with respect to time deliver to Lessee under this Leasesuch Claim.
Appears in 1 contract
Sources: Third Amended and Restated Credit Agreement (Cornell Corrections Inc)
Covenants of Lessor. If Lessee or any of its direct and/or indirect owners shall execute a Leasehold Mortgage in favor of a Qualified Lender in accordance with this Section 21, Lessor agrees that so long as such Leasehold Mortgage shall remain unsatisfied of record or until written notice of satisfaction is given by the holders of any such Leasehold Mortgage to Lessor, the following provisions shall apply:
21.2.1. There shall be no cancellation, termination (except in accordance with Section 25.3 and Section 25.5 25.5), surrender, waiver, acceptance of surrender, amendment, change or modification of this Lease without the prior written consent of each Leasehold Mortgagee. Any action requiring the consent of Leasehold Mortgagee hereunder that is taken without such written consent, shall be null and void and of no force or effect, and shall not be binding on any Leasehold Mortgagee (or, following a Leasehold Mortgage Foreclosure, Lessee).
21.2.2. Lessor shall, upon Lessor (or any Person acting on behalf of Lessor) serving Lessee with any notice which would lead to an Event of Default or any termination pursuant to Section 25.3 (to the extent that notice to Lessee is required under such section), simultaneously serve (or cause such Person acting on behalf of Lessor to serve) a copy of such notice upon each Leasehold Mortgagee who has delivered to Lessor a written request for such notices, including an address for notices to such Leasehold Mortgagee.
21.2.3. Each Leasehold Mortgagee shall have the right, but not the obligation, at any time prior to termination of this Lease, to pay all of the Lessor’s Participation Payment or any other charges due hereunder, with all due interest and late charges, to purchase any insurance, to pay any Impositions, to make any repairs, replacements or improvements, to do any other act or thing required of Lessee hereunder, and to do any act or thing which may be necessary and proper to be done in the performance and observance of the agreements, covenants and conditions hereof, including without limitation those necessary to prevent termination of this Lease. As against Lessor, any Leasehold Mortgagee and its agents and contractors shall have full access to the Premises for purposes of accomplishing any of the foregoing during the Lease Term, provided that the Leasehold Mortgagee shall be required to comply with Section 11.3 of this Lease with respect to any work to be performed on the Premises by the Leasehold Mortgagee or its agents or contractors. Any of the foregoing done by any Leasehold Mortgagee shall be as effective (including without limitation to prevent a termination of this Lease) as the same would have been if done by Lessee.
21.2.4. Anything contained in this Lease notwithstanding, if Lessor is entitled to terminate this Lease pursuant to Section 25.3, Lessor shall not be entitled to terminate this Lease, and any notice of same shall be rendered void, if the Leasehold Mortgagee shall cure the Event of Default described in Section 25.3 within the time period granted to Lessee hereunder. Notwithstanding anything to the contrary set forth herein, following the date on which the Leasehold Mortgagee (or its Affiliate) obtains title to and possession of the Premises (or the ownership interests in Lessee, as applicable) any non-monetary default that by its nature is impossible for the Leasehold Mortgagee to cure, despite gaining possession of the Premises (an “Uncurable Default”) shall be deemed cured for purposes of terminating the Lease, as between Lessor and the Leasehold Mortgagee (or Lessee, as applicable) such that Lessor shall not terminate this Lease by reason of such Uncurable Default. For the avoidance of doubt, nothing herein shall require any Leasehold Mortgagee to attempt to cure an Uncurable Default in order to comply with and be entitled to the benefits of the rights set forth in Section 21 with respect to all other monetary defaults and non-monetary defaults. Leasehold Mortgagee shall not be responsible for curing any defaults by Lessee under the Cross-Marketing Agreement first arising or accruing prior to date on which the Leasehold Mortgagee (or its Affiliate) obtains title to and possession of the Premises (or the ownership interests in Lessee, as applicable), but shall be responsible for complying with the terms of the Cross-Marketing Agreement from and after such date.
21.2.5. The right of Lessor to terminate this Lease for cessation of operations pursuant to Section 25.3 shall be subject to, and conditioned upon, Lessor having first given to each Leasehold Mortgagee of which Lessor has been advised in writing, including an address for notices to such Leasehold Mortgagee, written notice of such Event of Default as required under Section 21.2.2 and such Leasehold Mortgagees having failed to remedy such Event of Default or acquire Lessee’s leasehold estate hereunder or commence foreclosure or other appropriate proceedings in the nature thereof as set forth in Section 21.2.4.
21.2.6. If any Leasehold Mortgagee is prohibited from commencing or prosecuting Leasehold Foreclosure or other appropriate proceedings in the nature thereof by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding involving Lessee or its direct and/or indirect owners, the times specified in Section 21.2.4 for commencing or prosecuting Leasehold Foreclosure or other proceedings shall be extended for the period of the prohibition, provided that the Leasehold Mortgagee shall have fully cured any Event of Default in the payment of any monetary obligations of Lessee under this Lease and shall continue to pay currently those monetary obligations as and when the same fall due.
21.2.7. Lessor agrees that the names of each Leasehold Mortgagee may be added by Lessee to the “Mortgagee Endorsement” of any and all insurance policies required to be carried by Lessee under this Lease on condition that the insurance proceeds are to be applied in the manner specified in this Lease.
21.2.8. Leasehold Foreclosure of any Leasehold Mortgage, or any sale thereunder, whether by judicial proceedings or by virtue of any power contained in the Leasehold Mortgage, or any conveyance of the leasehold estate hereunder from Lessee to any Leasehold Mortgagee or its designee through, or in lieu of, Leasehold Foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent of Lessor or constitute a breach of any provision of or an Event of Default under this Lease, and upon such Leasehold Foreclosure, sale or conveyance, Lessor shall recognize the purchaser or other transferee in connection therewith as the Lessee hereunder.
21.2.9. In the event any Leasehold Mortgagee or its designee becomes the Lessee under this Lease (or the owner of direct and/or indirect ownership interests in Lessee, as applicable), such Leasehold Mortgagee or its designee (or the Lessee, as applicable) shall, subject to the foreclosing lender’s obligation to cure all but the Uncurable Defaults, be personally liable for the obligations of Lessee under this Lease or a new lease only for the period that the Leasehold Mortgagee or its designee remains the actual beneficial holder of the leasehold estate hereunder, and only to the extent provided in this Lease or such new lease.
21.2.10. Subject to Applicable Laws, the senior Leasehold Mortgagee may reserve the right to apply to its Leasehold Mortgage debt all, or any part, of Lessee’s share of the proceeds from any insurance policies arising from a Casualty pursuant to the debts secured by such Leasehold Mortgage, up to the amount of indebtedness secured by the Leasehold Mortgage.
21.2.11. Whichever party has the primary obligation to notify any Leasehold Mortgagee hereunder shall give each such Leasehold Mortgagee of which the parties have been notified (including an address for notices), notice of any litigation, or condemnation proceedings, or of any pending adjustment of insurance claims as each may relate to the Premises, and any Leasehold Mortgagee shall have the right, at Leasehold Mortgagee’s expense, to intervene therein and to be made a party to such proceedings. The parties hereto do hereby consent to such intervention. In the event that any such Leasehold Mortgagee shall not elect to intervene or become a party to the proceedings, such Leasehold Mortgagee shall receive notice and a copy of any award or decision made in connection therewith, but any such intervention shall not diminish Lessor’s rights under this Lease. For avoidance of doubt, the parties acknowledge and agree that Lessee shall have the primary obligation to notify any of its Leasehold Mortgagees under this Section 21.2.11; provided, however, Lessor shall give notices to any such Leasehold Mortgagees as required under this Lease.
21.2.12. If required by Leasehold Mortgagee, Lessor shall execute a written agreement (a “Consent Agreement”) among Lessor, Lessee and Leasehold Mortgagee, in a commercially reasonable written agreement as reasonably approved by Lessor, for non-recourse financing, as may be required by Lessee or Leasehold Mortgagee, pursuant to which Lessor shall acknowledge the existence of the Leasehold Mortgage, and, subject to the limitations set forth in Section 21.3 below, make certain commercially reasonable undertakings for the benefit of the Leasehold Mortgagee thereunder, including, without limitation, providing copies of any notices that Lessor may from time to time deliver to Lessee under this Lease.
Appears in 1 contract
Covenants of Lessor. If Lessee or Lessor hereby covenants and agrees with AFI as follows:
(a) AFI may for reasonable business causes audit during normal business hours Lessor's books and records relating to all Leases and any other documents assigned to AFI and may endorse Lessor's name on any remittances received from any Lessee.
(b) With respect to all Leases in which AFI has an interest, Lessor hereby assigns to AFI all its rights and privileges under guarantees and agreements and endorsements by third parties relating to the Lease.
(c) Lessor hereby defends, indemnifies, and holds AFI harmless from every claim, loss, demand, liability, and expense of any kind (including reasonable attorneys' fees) that AFI may become subject to arising out of: (i) a breach of any of its direct and/or indirect owners the warranties and representations herein contained, or (ii) any misrepresentation or nonfulfillment of any covenant on the part of Lessor provided in this Agreement or in any statement or certificate furnished by Lessor to AFI; (iii) conduct of the Lessor in endeavoring to repossess any Equipment or to collect sums due under any Lease; or (iv) any claim or defense the Lessee could now or hereafter assert against the Lessor, whether or not the Lessee ultimately prevails. If the Lessee at anytime attempts to revoke, mollify, or terminate the lease due to any breach or non-performance by Lessor, or sets off any amount owing under the Lease or pays it into escrow, the Lessor upon written notice by AFI shall execute a Leasehold Mortgage pay to AFI any monthly amount owing under the Lease until such time as either the breach or non-performance is corrected or in favor of a Qualified Lender in accordance with this the event 120 days shall pass without Lessee resuming obligations then Lessor shall immediately pay AFI all remaining amounts due or to become due and any residual value due or to become due immediately per Section 21, 6 whether or not the Lessee's claim or defense has been finally adjudicated. The Lessor agrees that so long as such Leasehold Mortgage shall remain unsatisfied of record or until written notice of satisfaction is given by the holders of any such Leasehold Mortgage to Lessor, the following provisions shall apply:
21.2.1. There shall be no cancellation, termination (except in accordance with Section 25.3 and Section 25.5 ), surrender, waiver, acceptance of surrender, amendment, change or modification of this Lease without the prior written consent of each Leasehold Mortgagee. Any action requiring the consent of Leasehold Mortgagee hereunder that is taken without such written consent, shall be null and void and of no force or effect, and shall not be binding on any Leasehold Mortgagee (or, following a Leasehold Mortgage Foreclosure, Lessee).
21.2.2. Lessor shall, upon Lessor (or any Person acting on behalf of Lessor) serving Lessee with any notice which would lead to an Event of Default or any termination pursuant to Section 25.3 (to the extent that notice to Lessee is required under such section), simultaneously serve (or cause such Person acting on behalf of Lessor to serve) a copy of such notice upon each Leasehold Mortgagee who has delivered to Lessor a written request for such notices, including an address for notices to such Leasehold Mortgagee.
21.2.3. Each Leasehold Mortgagee shall have the right, but not the obligation, at any time prior to termination of this Lease, to pay all of AFI's legal and other expenses of:
(1) seeking to overcome or defending such claims and defenses in the Lessor’s Participation Payment or any other charges due hereunder, with all due interest and late charges, to purchase any insurance, to pay any Impositions, to make any repairs, replacements or improvements, event AFI chooses to do any other act or thing required of Lessee hereunderso, and (2) enforcement of its rights under Lessor's indemnity contained herein. The foregoing indemnity is a continuing indemnity and shall survive termination of this Agreement.
(d) Lessor agrees to do execute and deliver any act and all papers or thing documents which AFI may be necessary and proper reasonably request from time to be done time in order to carry out the purpose hereof, or to facilitate the collection of monies due or to become due from any Lessee under any Lease assigned to AFI. In the event Lessor received or receives any monies due under any Lease that have been assigned to AFI, Lessor agrees to immediately forward such monies to AFI.
(e) Lessor shall notify AFI immediately upon obtaining knowledge of any default in the performance and observance of the agreements, covenants and conditions hereofa Lessee's obligations under a Lease, including without limitation those necessary to prevent termination the payment of this sums due under the Lease. As against Lessor.
(f) Lessor will not, without AFI's prior written consent, solicit or accept collection of any Leasehold Mortgagee and its agents and contractors shall have full access rents due under a Lease, repossess or consent to the Premises for purposes return of accomplishing any Equipment, or modify or terminate the Lease or waive any of AFI's rights thereunder.
(g) Lessor shall pay all personal property taxes, including tangible and intangible personal privilege, documentary, sales, transaction and other like tax or taxes in lieu thereof, applicable to any of the foregoing during transactions contemplated by this Agreement, and which may be imposed or assessed against the Lease TermEquipment, provided that this Agreement, the Leasehold Mortgagee shall be required to comply with Section 11.3 of this Lease with respect to any work to be performed Leases or AFI, except for taxes measured or imposed on the Premises by the Leasehold Mortgagee or its agents or contractorsnet income of AFI. Any of the foregoing done by any Leasehold Mortgagee Provided, however, AFI shall be as effective (including without limitation to prevent a termination of this Lease) as the same would have been if done by Lessee.
21.2.4. Anything contained in this Lease notwithstandingcollect and remit use and property taxes, if Lessor AFI has received title to Equipment (i.e., in transactions where AFI is entitled to terminate this Lease pursuant to Section 25.3receiving an assignment of all of Lessor's right, Lessor shall not be entitled to terminate this Leasetitle, and any notice of same shall be rendered void, if the Leasehold Mortgagee shall cure the Event of Default described interest in Section 25.3 within the time period granted and to Lessee hereunder. Notwithstanding anything to the contrary set forth herein, following the date on which the Leasehold Mortgagee (or its Affiliate) obtains title to Leases and possession of the Premises (or the ownership interests in Lessee, as applicable) any non-monetary default that by its nature is impossible for the Leasehold Mortgagee to cure, despite gaining possession of the Premises (an “Uncurable Default”) shall be deemed cured for purposes of terminating the Lease, as between Lessor and the Leasehold Mortgagee (or Lessee, as applicable) such that Lessor shall not terminate this Lease by reason of such Uncurable Default. For the avoidance of doubt, nothing herein shall require any Leasehold Mortgagee to attempt to cure an Uncurable Default in order to comply with and be entitled to the benefits of the rights set forth in Section 21 with respect to all other monetary defaults and non-monetary defaults. Leasehold Mortgagee shall not be responsible for curing any defaults by Lessee under the Cross-Marketing Agreement first arising or accruing prior to date on which the Leasehold Mortgagee (or its Affiliate) obtains title to and possession of the Premises (or the ownership interests in Lessee, as applicable), but shall be responsible for complying with the terms of the Cross-Marketing Agreement from and after such date.
21.2.5. The right of Lessor to terminate this Lease for cessation of operations pursuant to Section 25.3 shall be subject to, and conditioned upon, Lessor having first given to each Leasehold Mortgagee of which Lessor has been advised in writing, including an address for notices to such Leasehold Mortgagee, written notice of such Event of Default as required under Section 21.2.2 and such Leasehold Mortgagees having failed to remedy such Event of Default or acquire Lessee’s leasehold estate hereunder or commence foreclosure or other appropriate proceedings in the nature thereof as set forth in Section 21.2.4.
21.2.6. If any Leasehold Mortgagee is prohibited from commencing or prosecuting Leasehold Foreclosure or other appropriate proceedings in the nature thereof by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding involving Lessee or its direct and/or indirect owners, the times specified in Section 21.2.4 for commencing or prosecuting Leasehold Foreclosure or other proceedings shall be extended for the period of the prohibition, provided that the Leasehold Mortgagee shall have fully cured any Event of Default in the payment of any monetary obligations of Lessee under this Lease and shall continue to pay currently those monetary obligations as and when the same fall due.
21.2.7. Lessor agrees that the names of each Leasehold Mortgagee may be added by Lessee to the “Mortgagee Endorsement” of any and all insurance policies required to be carried by Lessee under this Lease on condition that the insurance proceeds are to be applied in the manner specified in this Lease.
21.2.8. Leasehold Foreclosure of any Leasehold Mortgage, or any sale thereunder, whether by judicial proceedings or by virtue of any power contained in the Leasehold Mortgage, or any conveyance of the leasehold estate hereunder from Lessee to any Leasehold Mortgagee or its designee through, or in lieu of, Leasehold Foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent of Lessor or constitute a breach of any provision of or an Event of Default under this Lease, and upon such Leasehold Foreclosure, sale or conveyance, Lessor shall recognize the purchaser or other transferee in connection therewith as the Lessee hereunder.
21.2.9. In the event any Leasehold Mortgagee or its designee becomes the Lessee under this Lease (or the owner of direct and/or indirect ownership interests in Lessee, as applicable), such Leasehold Mortgagee or its designee (or the Lessee, as applicable) shall, subject to the foreclosing lender’s obligation to cure all but the Uncurable Defaults, be personally liable for the obligations of Lessee under this Lease or a new lease only for the period that the Leasehold Mortgagee or its designee remains the actual beneficial holder of the leasehold estate hereunder, and only to the extent provided in this Lease or such new lease.
21.2.10. Subject to Applicable Laws, the senior Leasehold Mortgagee may reserve the right to apply to its Leasehold Mortgage debt all, or any part, of Lessee’s share of the proceeds from any insurance policies arising from a Casualty Equipment pursuant to the debts secured by such Leasehold Mortgage▇▇▇▇ of Sales and Assignment attached hereto as Exhibit A). In addition, up in instances where AFI has merely received a security interest in Equipment pursuant to the amount of indebtedness secured by Assignment Agreement attached hereto as Exhibit B, AFI may forward collected use taxes to Lessor along with a request that Lessor remit the Leasehold Mortgage.
21.2.11. Whichever party has the primary obligation to notify any Leasehold Mortgagee hereunder shall give each such Leasehold Mortgagee of which the parties have been notified (including an address for notices), notice of any litigation, or condemnation proceedings, or of any pending adjustment of insurance claims as each may relate collected tax to the Premisesproper taxing jurisdiction, and any Leasehold Mortgagee in which case Lessor shall have the right, at Leasehold Mortgagee’s expense, to intervene therein and to be made a party remit such tax to such proceedings. The parties hereto do hereby consent to such intervention. In the event that any such Leasehold Mortgagee shall not elect to intervene or become a party to the proceedings, such Leasehold Mortgagee shall receive notice and a copy of any award or decision made in connection therewith, but any such intervention shall not diminish Lessor’s rights under this Lease. For avoidance of doubt, the parties acknowledge and agree that Lessee shall have the primary obligation to notify any of its Leasehold Mortgagees under this Section 21.2.11; provided, however, Lessor shall give notices to any such Leasehold Mortgagees as required under this Leasejurisdiction.
21.2.12. If required by Leasehold Mortgagee, Lessor shall execute a written agreement (a “Consent Agreement”) among Lessor, Lessee and Leasehold Mortgagee, in a commercially reasonable written agreement as reasonably approved by Lessor, for non-recourse financing, as may be required by Lessee or Leasehold Mortgagee, pursuant to which Lessor shall acknowledge the existence of the Leasehold Mortgage, and, subject to the limitations set forth in Section 21.3 below, make certain commercially reasonable undertakings for the benefit of the Leasehold Mortgagee thereunder, including, without limitation, providing copies of any notices that Lessor may from time to time deliver to Lessee under this Lease.
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Covenants of Lessor. The Lessor covenants to the Lessee that the Lessee, paying the Rent when due as aforesaid, shall peaceably and quietly use, occupy and possess the said Demised Premises for the full term of the Lease without hindrance, conviction, molestation or interruption whatsoever, except as provided below. The said Lessee covenants with Lessor:
(a) to pay said Rent on or before the first of each month;
(b) to deposit with Lessor a Security Deposit in the amount of one month’s rent agreed to above which shall be retained by Lessor or released to Lessee as hereinafter provided.
(c) to pay in cooperation with all other Lessees in the Premise all electric, cable, internet, telephone and other such charges which may be assessed upon the Demised Premises during the term hereof. Basic cable and internet and water / sewer are included in the rent. Any upgrade to said included basic services shall be at the expense of the Lessee;
(d) not to suffer or commit any waste of the Demised Premises nor make any unlawful, improper or offensive use of the same;
(e) not to assign this Lease or underlet the said Demised Premises or any part thereof without the prior, written consent of the Lessor;
(f) at the termination of said tenancy, to quietly yield up the Demised Premises (reasonable wear and tear excepted) as the same now are;
(g) not to deposit, store, dispose, remove, bury, discharge, spill, lose, or filtrate any oil, petroleum or chemical liquids or solids, liquid or gaseous products or any hazardous waste or hazardous substances (collectively, “Hazardous Substances”), as those terms are used in any law, code or ordinance, including but not limited to, the Comprehensive Environmental Response Compensation and Liability Act of 1980 at, on or under the Demised Premises. If it is discovered that the Demised Premises is contaminated in any manner as a result of the breach of this provision of the Lease or any act or omission of Lessee or any of its direct and/or indirect owners shall execute a Leasehold Mortgage in favor of a Qualified Lender in accordance with this Section 21Lessee's agents, Lessor agrees that so long as such Leasehold Mortgage shall remain unsatisfied of record employees or until written notice of satisfaction is given by the holders of any such Leasehold Mortgage to Lessor, the following provisions shall apply:
21.2.1. There shall be no cancellation, termination (except in accordance with Section 25.3 and Section 25.5 ), surrender, waiver, acceptance of surrender, amendment, change or modification of this Lease without the prior written consent of each Leasehold Mortgagee. Any action requiring the consent of Leasehold Mortgagee hereunder that is taken without such written consent, shall be null and void and of no force or effect, and shall not be binding on any Leasehold Mortgagee (or, following a Leasehold Mortgage Foreclosure, Lessee).
21.2.2. Lessor shall, upon Lessor (contractors or any Person acting on behalf of Lessor) serving third parties, Lessee with any notice which would lead to an Event of Default or any termination pursuant to Section 25.3 will indemnify, hold harmless (to the extent that notice to Lessee is required under such section), simultaneously serve (or cause such Person acting on behalf of Lessor to serve) a copy of such notice upon each Leasehold Mortgagee who has delivered to Lessor a written request for such notices, including an address for notices to such Leasehold Mortgagee.
21.2.3. Each Leasehold Mortgagee shall have the right, but not the obligationand, at any time prior to termination of this LeaseLessee's option, to pay all of the Lessor’s Participation Payment or any other charges due hereunder, with all due interest and late charges, to purchase any insurance, to pay any Impositions, to make any repairs, replacements or improvements, to do any other act or thing required of Lessee hereunder, and to do any act or thing which may be necessary and proper to be done in the performance and observance of the agreements, covenants and conditions hereof, including without limitation those necessary to prevent termination of this Lease. As against Lessor, any Leasehold Mortgagee and its agents and contractors shall have full access to the Premises for purposes of accomplishing any of the foregoing during the Lease Term, provided that the Leasehold Mortgagee shall be required to comply with Section 11.3 of this Lease with respect to any work to be performed on the Premises by the Leasehold Mortgagee or its agents or contractors. Any of the foregoing done by any Leasehold Mortgagee shall be as effective (including without limitation to prevent a termination of this Leasedefend) as the same would have been if done by Lessee.
21.2.4. Anything contained in this Lease notwithstanding, if Lessor is entitled to terminate this Lease pursuant to Section 25.3, Lessor shall not be entitled to terminate this Lease, and any notice of same shall be rendered void, if the Leasehold Mortgagee shall cure the Event of Default described in Section 25.3 within the time period granted to Lessee hereunder. Notwithstanding anything to the contrary set forth herein, following the date on which the Leasehold Mortgagee (or its Affiliate) obtains title to and possession of the Premises (or the ownership interests in Lessee, as applicable) any non-monetary default that by its nature is impossible for the Leasehold Mortgagee to cure, despite gaining possession of the Premises (an “Uncurable Default”) shall be deemed cured for purposes of terminating the Lease, as between Lessor and the Leasehold Mortgagee (or Lessee, as applicable) such that Lessor shall not terminate this Lease by reason of such Uncurable Default. For the avoidance of doubt, nothing herein shall require any Leasehold Mortgagee to attempt to cure an Uncurable Default in order to comply with and be entitled to the benefits of the rights set forth in Section 21 with respect to all other monetary defaults and non-monetary defaults. Leasehold Mortgagee shall not be responsible for curing any defaults by Lessee under the Cross-Marketing Agreement first arising or accruing prior to date on which the Leasehold Mortgagee (or its Affiliate) obtains title to and possession of the Premises (or the ownership interests in Lessee, as applicable), but shall be responsible for complying with the terms of the Cross-Marketing Agreement from and after such date.
21.2.5. The right of Lessor to terminate this Lease for cessation of operations pursuant to Section 25.3 shall be subject to, and conditioned upon, Lessor having first given to each Leasehold Mortgagee of which Lessor has been advised in writing, including an address for notices to such Leasehold Mortgagee, written notice of such Event of Default as required under Section 21.2.2 and such Leasehold Mortgagees having failed to remedy such Event of Default or acquire Lessee’s leasehold estate hereunder or commence foreclosure or other appropriate proceedings in the nature thereof as set forth in Section 21.2.4.
21.2.6. If any Leasehold Mortgagee is prohibited from commencing or prosecuting Leasehold Foreclosure or other appropriate proceedings in the nature thereof by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding involving Lessee or its direct and/or indirect owners, the times specified in Section 21.2.4 for commencing or prosecuting Leasehold Foreclosure or other proceedings shall be extended for the period of the prohibition, provided that the Leasehold Mortgagee shall have fully cured any Event of Default in the payment of any monetary obligations of Lessee under this Lease and shall continue to pay currently those monetary obligations as and when the same fall due.
21.2.7. Lessor agrees that the names of each Leasehold Mortgagee may be added by Lessee to the “Mortgagee Endorsement” of any and all insurance policies required to be carried by Lessee under this Lease on condition that the insurance proceeds are to be applied in the manner specified in this Lease.
21.2.8claims, losses and expenses, including reasonable attorney's fees, arising as a result of such contamination. Leasehold Foreclosure of any Leasehold Mortgage, or any sale thereunder, whether by judicial proceedings or by virtue of any power contained in the Leasehold Mortgage, or any conveyance of the leasehold estate hereunder from Lessee to any Leasehold Mortgagee or its designee through, or in lieu of, Leasehold Foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent of Lessor or constitute a breach of any provision of or an Event of Default under this Lease, and upon such Leasehold Foreclosure, sale or conveyance, Lessor shall recognize the purchaser or other transferee in connection therewith as the Lessee hereunder.
21.2.9. In the event any Leasehold Mortgagee or its designee becomes the Lessee under this Lease (or the owner of direct and/or indirect ownership interests in Lessee, as applicable), such Leasehold Mortgagee or its designee (or the Lessee, as applicable) shall, subject to the foreclosing lender’s obligation to cure all but the Uncurable Defaults, be personally liable for the obligations of Lessee under this Lease or a new lease only for the period that the Leasehold Mortgagee or its designee remains the actual beneficial holder of the leasehold estate hereunder, and only to the extent provided in this Lease or such new lease.
21.2.10. Subject to Applicable Laws, the senior Leasehold Mortgagee may reserve the right to apply to its Leasehold Mortgage debt all, or any part, of Lessee’s share of the proceeds from any insurance policies arising from a Casualty pursuant to the debts secured by such Leasehold Mortgage, up to the amount of indebtedness secured by the Leasehold Mortgage.
21.2.11. Whichever party has the primary obligation to notify any Leasehold Mortgagee hereunder shall give each such Leasehold Mortgagee of which the parties have been notified (including an address for notices), notice of any litigation, or condemnation proceedings, or of any pending adjustment of insurance claims as each may relate to the Premises, and any Leasehold Mortgagee shall have the right, at Leasehold Mortgagee’s expense, to intervene therein and to be made a party to such proceedings. The parties hereto do hereby consent to such intervention. In the event that any such Leasehold Mortgagee shall not elect to intervene or become a party to the proceedings, such Leasehold Mortgagee shall receive notice and a copy of any award or decision made in connection therewith, but any such intervention shall not diminish Lessor’s rights under this Lease. For avoidance of doubt, the parties acknowledge and agree that Lessee shall have the primary obligation to notify any of its Leasehold Mortgagees under this Section 21.2.11; provided, however, Lessor shall give notices to any such Leasehold Mortgagees as required under this Lease.
21.2.12. If required by Leasehold Mortgagee, Lessor shall execute a written agreement (a “Consent Agreement”) among Lessor, Lessee and Leasehold Mortgagee, in a commercially reasonable written agreement as reasonably approved by Lessor, for non-recourse financing, as may be required by Lessee or Leasehold Mortgagee, pursuant to which Lessor shall acknowledge the existence of the Leasehold Mortgage, and, subject to the limitations set forth in Section 21.3 below, make certain commercially reasonable undertakings for the benefit of the Leasehold Mortgagee thereunder, includingSuch indemnity includes, without limitation, providing copies any and all costs incurred due to any investigation of the site or any cleanup, removal, or restoration mandated by federal, state or local agency or political subdivision; and
(h) to keep the Demised Premises free and clear of all mechanic's and materialmen's liens arising out of any notices that activities by Lessee. Lessee agrees to indemnify, defend and hold Lessor harmless against any and all claims, losses, liabilities, damages or expenses (including without limitation, attorney's fees) which may arise from time or be related to time deliver to Lessee under a breach of this provision of the Lease.
(i) not to smoke or allow any family and friends to smoke inside the Demised Premises.
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Sources: Lease Agreement