Leasehold Mortgage (a) Tenant may encumber by mortgage, mortgages or other proper instruments this Lease and Tenant’s leasehold interest in the Premises as security for any indebtedness undertaken by Tenant (each, a “Leasehold Mortgage”). The execution of a Leasehold Mortgage or other similar instrument, or the foreclosure thereof, or any sale thereunder, either by judicial proceedings or by virtue of any power reserved in a Leasehold Mortgage, or conveyance by Tenant to the holder of such indebtedness (each, a “Holder of Leasehold Mortgage”), or the exercising of any right, power or privilege reserved in a Leasehold Mortgage, shall not be held as a violation of any of the terms and conditions hereof, or as an assumption by the Holder of Leasehold Mortgage or its designee personally of the obligations hereof, except to the extent that the Holder of Leasehold Mortgage or its designee voluntarily assumes said obligations in order to avoid termination of this Lease, provided that such Leasehold Mortgage or the actions taken pursuant thereto shall not violate the following provisions of this Paragraph.
(b) If Tenant shall encumber this Lease or its leasehold interest in the Premises and if Tenant or a Holder of Leasehold Mortgage shall give written notice to Landlord of the existence thereof and the address of such Holder of Leasehold Mortgage, then Landlord will mail or deliver to each such Holder of Leasehold Mortgage, at such address, a duplicate copy of all notices in writing which Landlord may, from time to time, give to or serve on Tenant under and pursuant to the terms and provisions hereof, such copies shall be mailed or delivered to each such Holder of Leasehold Mortgage, at, or as near as possible to, the same time such notices are given to or served on Tenant. Each such Holder of Leasehold Mortgage may, at its option, at any time before the rights of Tenant shall be terminated as provided herein, pay any of the rents due hereunder, or pay any taxes and assessments, or do any act or thing required of Tenant by the terms hereof, or do any act or thing that may be necessary and proper to be done in the observance of the covenants and conditions hereof, or to prevent the termination hereof, all payments so made, and all things so done and performed by such Holder of Leasehold Mortgage shall be as effective to prevent a termination of the rights of Tenant hereunder as the same would have been if done and performed by Tenant.
(c) Landlord agrees that it will not terminate this Lease because of the bankruptcy or insolvency of the Tenant, or because the Tenant shall abandon the Premises, or because the Tenant shall suffer this Lease or any estate or interest thereunder to be taken under any writ of execution, or because the Tenant shall make an assignment for the benefit of creditors, or because of any other failure on the part of Tenant to observe or perform any of the covenants contained in this Lease, if a Holder of Leasehold Mortgage cures any default by Tenant which is curable by the payment of money within thirty (30) days after the date of written notice from Landlord to each Holder of Leasehold Mortgage specifying the nature of the default, or if such default is not curable by the mere payment of money, then if a Holder of Leasehold Mortgage shall agree in writing to perform (and does perform) within ninety (90) days after the date of the written notice of default from Landlord to each Holder of Leasehold Mortgage specifying the nature of the default all of the obligations of Tenant under this Lease capable of performance by a Holder of Leasehold Mortgage until such time as this Lease shall be sold upon foreclosure pursuant to the provisions of the Leasehold Mortgage. Provided that a Holder of Leasehold Mortgage pays all amounts then due and payable on the part of the Tenant, including interest and all late penalties, and Landlord’s legal fees incurred as a result of Tenant’s default, Landlord agrees to accept performance by such Holder of Leasehold Mortgage of any term, covenant or condition to be performed by Tenant under this Lease with the same force and effect as though timely performed by Tenant as long as such Holder of Leasehold Mortgage performs within the time periods previously set forth in this Subparagraph. If a Holder of Leasehold Mortgage fails to cure any Tenant default in accord with the foregoing, Landlord may terminate this Lease and proceed with all available remedies to take possession of the Premises and all other rights pertaining thereto, as set forth in the provisions governing default under this Lease. When more than one Holder of Leasehold Mortgage exists, the rights and interests of each Holder of Leasehold Mortgage under this Lease shall be determined by the priority of each such Holder of Leasehold Mortgage and as such rights and interests may be restricted or otherwise allocated pursuant to any agreement(s) between such Holders of Leasehold Mortgage or between Tenant and such Holder(s) of Leasehold Mortgage. Notwithstanding any such agreement(s), Landlord is required to give any notice required hereunder to all Holders of Leasehold Mortgage of which Landlord has been given written notice. Landlord acknowledges that some Tenant defaults may not be capable of cure by a Holder of Leasehold Mortgage, such as the bankruptcy of the Tenant. Landlord agrees that Tenant defaults which are by their nature impossible to cure by a Holder of Leasehold Mortgage shall not be deemed a basis for termination of this Lease so long as all other defaults which are capable of cure are cured in accordance with this Section.
(d) Landlord agrees that this Lease shall not be hereafter modified or amended without the prior written consent of each Holder of Leasehold Mortgage to:
(i) Increase the Annual Rent or additional rent (except with regard to increases now provided in the Lease);
(ii) Change the legal description of the Premises from that now set forth in this Lease;
(iii) Shorten the term or any renewal term of this Lease, except as now permitted by this Lease;
(iv) Change the permitted use of the Premises; or
(v) Impose any additional obligations upon Tenant. Landlord further covenants and agrees not to accept a surrender of the Premises or a cancellation or release of this Lease from Tenant (except pursuant to the exercise of Landlord’s remedies provided herein if an event of default occurs) prior to the expiration or earlier termination thereof without the prior written consent of each Holder of Leasehold Mortgage.
(e) If Landlord exercises Landlord’s right to terminate this Lease as provided in Article 20 hereof, then each Holder of Leasehold Mortgage shall have the right to notify Landlord in writing, within thirty (30) days after the effective date of written notice from Landlord to each Holder of Leasehold Mortgage, that such one or more Holders of Leasehold Mortgage or any designee or nominee thereof elects to lease the Premises from the date of such termination of this Lease for the remainder of the scheduled term of this Lease, including the option terms, at the rent and upon the other same terms, covenants and conditions that are herein set forth, with the same relative priority as this Lease and having the benefit of investing in such one or more Holder(s) of Leasehold Mortgage or any designee or nominee thereof of all of the rights, title, interests, powers and privileges of Tenant hereunder. If such one or more Holder(s) of Leasehold Mortgage elects to obtain such new lease, then such Holder(s) of Leasehold Mortgage shall be obligated, within thirty (30) days after delivery to Landlord of such notice of election, to (i) cure the default upon which such termination was based, or in respect to any default not capable of being cured within such thirty (30) day time period or which cannot be cured without entry and possession to proceed and effectuate such cure with due diligence following delivery of possession (excluding, however, Tenant defaults which by their nature are impossible to cure); (ii) pay to Landlord all Annual Rent including interest, all late penalties, and all items of additional rent due and payable under this Lease up to and including the date of commencement of the term of such new lease; and (iii) pay to Landlord all expenses and reasonable attorney’s fees incurred by Landlord in connection with any such default and termination and with the preparation, execution and delivery of such new lease. Upon such performance by such one or more Holder(s) of Leasehold Mortgage or any designee or nominee thereof, such parties shall have the same relative priority as this Lease and having the benefit of all the rights, titles, interests, powers and privileges of Tenant hereunder, including, specifically, automatic vesting of title to all improvements as well as all equipment, fixtures and machinery therein, until the expiration of the term of this Lease unless this Lease shall thereafter be sooner terminated. Such Holder(s) of Leasehold Mortgage or any designee or nominee thereof shall be obligated under such new lease and agree in writing that promptly following the delivery of the new lease, such Holder(s) of Leasehold Mortgage or its designee will perform or cause to be performed all of the other covenants and agreements herein contained on Tenant’s part to be performed.
(f) Unless excused by Landlord, if any assignee or transferee of a Holder of Leasehold Mortgage or new lessee deriving rights from the Holder of Leasehold Mortgage fails to cure any of the Tenant’s defaults within one hundred twenty (120) days from the effective date of such assignment, transfer or new lease, this Lease and the lease rights hereunder and under any such new lease shall terminate forthwith at Landlord’s option and in Landlord’s sole and absolute discretion, such option to be exercised by sending written notice to the assignee or transferee that the new lease has been terminated pursuant to this provision.
(g) Landlord agrees to execute and deliver any and all consents and other documents (including reasonable modifications to this Lease) reasonably requested by Tenant and/or one or more Holder(s) of Leasehold Mortgage so long as such documents are reasonably consistent with the provisions of this Section 7.02.
(h) Notwithstanding any provision in this Article 7 or elsewhere in this Lease to the contrary, Tenant may, in its sole discretion, enter into lease financing, conventional financing and other arrangements in connection with the acquisition, lease and disposal of the equipment and/or personal property including, without limitation, leasing of equipment and/or personal property from another with an option to purchase at the end of the lease term and assignment of Tenant’s interests in the equipment and/or personal property, if required, as security for these transactions.
(i) Nothing herein shall be deemed to relieve, impair, release, or discharge Tenant of its obligations to fully perform the terms of this Lease on Tenant’s part to be performed.
(j) Notwithstanding any provision in this Article 7 or elsewhere in this Lease to the contrary, Tenant may, in its sole discretion and without the consent of Landlord enter into any financing and other arrangements which do not create a lien on the leasehold estate created hereby, including without limitation, pledges of proceeds from all uses of the Premises as provided in this Lease.
(k) As used herein: