Subordination and Attornment. This Lease is subject and subordinate to the liens of all mortgages, deeds of trust and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunder.
Appears in 1 contract
Subordination and Attornment. 22.1 This Lease is subject and at Landlord's option will be subordinate to the liens of all mortgagesany mortgage, deeds deed of trust and other security instruments related documents now or hereafter placed upon the Building or the Building Project or any portion thereof and Complex (including all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”advances made thereunder), and to any and all amendments, renewals, extensions, modificationsreplacements, or refinancings restatements thereof (collectively, "Mortgage"). Tenant agrees that no documentation other than this Lease is required to evidence such subordination.
22.2 If any Mortgagee elects to have this Lease superior to the lien of its Mortgage and gives notice to Tenant, this Lease will be deemed prior to such Mortgage whether this Lease is dated prior or subsequent to the date of such Mortgage or the date of recording thereof.
22.3 In confirmation of subordination or superior position, without as the case may be, Tenant will execute such documents as may be required by Mortgagee (provided that such documents only confirm such subordination and do not in any further act way modify the terms of this Lease) and if it fails to do so within 10 days after demand, such failure shall be deemed an Event of Default hereunder.
22.4 Tenant hereby attorns to all successor owners of the Tenant except as expressly provided hereinBuilding, whether such ownership is acquired by sale, foreclosure of a Mortgage, or otherwise; provided, however, a condition precedent that after succeeding to Landlord's interest under this Lease, any such successor owner assumes in accordance with the subordination terms of this Lease and during its period of ownership all obligations of Landlord arising after the date such successor owner acquires title to any particular future Mortgage first encumbering the Building or the Project Buildings.
22.5 Within 30 days following the effective date of this Lease (full execution of the Lease) and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit execution of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) by Tenant in the form attached hereto as Exhibit F, Landlord will obtain a non-disturbance agreement from Landlord's present Mortgagee in the lessor or lender form attached hereto as Exhibit F; Tenant's agreement to subordinate under Section 22.1 above as to any future Mortgagee is conditioned upon Tenant obtaining a non-disturbance agreement from any such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any future Mortgagee of the MortgagesReal Property and/or the Building on such Mortgagee's standard form for such purposes substantially in the form attached hereto as Exhibit F, Tenant, if requested to with changes as such future Mortgagee may reasonably require so long as such changes do so by not in any way modify the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder terms of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunder.
Appears in 1 contract
Sources: Lease Agreement (Lifeminders Inc)
Subordination and Attornment. This (a) Except as set forth herein, this Lease is subject and subordinate to all Mortgages and Superior Leases, and, at the liens request of all mortgages, deeds of trust and other security instruments now any Mortgagee or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, howeverLessor, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchasersuch Mortgagee or Lessor, recognize the its successors in interest or any purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such a foreclosure or termination or other proceeding is prosecuted or completedsale. Landlord shall use commercially reasonable efforts to provide deliver to Tenant with a subordination, nondisturbance and attornment agreement from Landlord’s current and all future Mortgagees and Lessors on each such Mortgagee’s or Lessor’s standard form, which form shall be in a commercially reasonable form and which form shall be modified to address any Lease-specific provisions as such Mortgagee or Lessor might reasonably require (an “SNDA”). With respect to any future Mortgagee(s) and Lessor(s), such subordination shall not be effective until an SNDA has been executed by the Mortgagee or the Lessor (as applicable) and delivered to Tenant. Landlord and Tenant acknowledge that Landlord is required to obtain Landlord’s current Mortgagee’s approval of this Lease (“Lender Approval”) and promptly after the Effective Date, Landlord will use commercially reasonable efforts to obtain Lender Approval. If Lender Approval has not been obtained for any reason and/or Landlord has not delivered an SNDA from Landlord’s current Mortgagee (the current holder of any Mortgages upon request by Tenant“Current SNDA”) to Tenant within thirty (30) days after the Effective Date (the “SNDA Period”), provided that (i) Landlord and Tenant shall pay all costs incurred each have the right to terminate this Lease by delivering fifteen (15) days prior written notice to the other party within the fifteen (15) day period immediately following the SNDA Period; provided, however, if Tenant terminates this Lease as aforesaid and if Landlord obtains Lender Approval and/or the Current SNDA, as applicable, prior to the expiration of such fifteen (15) day termination period, Tenant’s termination notice shall be deemed null and void. If this Lease is not terminated by Landlord in obtaining such or Tenant as aforesaid, Landlord’s obligation to obtain the Current SNDA as set forth herein shall continue and Landlord will use commercially reasonable efforts to obtain the Current SNDA, including but not limited neither party will have the right to any fees or charges from terminate this Lease due to Landlord’s lender failure to obtain the Lender Approval and/or the Current SNDA.
(b) If a Lessor or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder Mortgagee or any other person or entity shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein succeed to the contraryrights of Landlord under this Lease, any Mortgagee may whether through possession or foreclosure action or the delivery of a new lease or deed, then at any time subordinate the lien request of its Mortgages the successor landlord and upon such successor landlord’s written agreement to the operation and effect of this Lease without obtaining the accept Tenant’s consent theretoattornment and to recognize Tenant’s interest under this Lease, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to have attorned to and recognized such successor landlord as Landlord under this Lease. The provisions of this Section are self-operative and require no further instruments to give effect hereto; provided, however, that Tenant shall, within ten (10) Business Days after demand, execute and deliver any commercially reasonable instrument that such successor landlord may reasonably request (i) evidencing such attornment, (ii) setting forth the terms and conditions of Tenant’s tenancy, and (iii) containing such other terms and conditions as may be senior to required by such Mortgages without regard Mortgagee or Lessor, provided such terms and conditions do not increase the Rent, materially increase Tenant’s non-monetary obligations, increase the Rent or otherwise materially and adversely affect Tenant’s rights under this Lease. Upon such attornment this Lease shall continue in full force and effect as a direct lease between such successor landlord and Tenant upon all of the terms, conditions and covenants set forth in this Lease except that unless otherwise provided in the SNDA such successor landlord shall not be:
(i) liable for any act or omission of Landlord (except to the respective dates of execution and/or recordation extent such act or omission continues beyond the date when such successor landlord succeeds to Landlord’s interest and Tenant gives notice of such Mortgages and act or omission);
(ii) subject to any defense, claim, counterclaim, set-off or offset (except as set forth in Section 6.4 of this Lease and thereafter Section 4.8 of Exhibit C-Work Agreement) which Tenant may have against any prior Landlord provided, however, that upon such Mortgagee attornment, such purchaser shall have perform in accordance with the same rights as to terms of this Lease and shall be liable for all obligations of Landlord arising or continuing unfulfilled after the date such attornment;
(iii) bound by any prepayment of more than one month’s Rent to any prior landlord with the exception of prepayments of Operating Expenses or Taxes made in accordance with the terms of this Lease;
(iv) bound by any obligation to make any payment to Tenant which was required to be made prior to the time such successor landlord succeeded to Landlord’s interest;
(v) bound by any obligation to perform any work or to make improvements to the Premises except for (x) repairs and maintenance required to be made by Landlord under this Lease, and (y) repairs to the Premises as it would have had were a result of damage by fire or other casualty or a partial condemnation pursuant to the provisions of this Lease, but only to the extent that such repairs can reasonably be made from the net proceeds of any insurance or condemnation awards, respectively, actually made available to such successor landlord;
(vi) bound by any modification, amendment, or renewal of this Lease executed made without successor landlord’s consent, excepting any such modification, amendment or renewal giving effect to any right or option set forth in the Lease and delivered before the execution of such Mortgages. If, in connection with obtaining financing timely exercised by Tenant;
(vii) liable for the Buildingrepayment of any security deposit or surrender of any letter of credit, a Mortgagee shall request reasonable modifications in this Lease as a condition unless and until such security deposit actually is paid or such letter of credit is actually delivered to such financingsuccessor landlord; or
(viii) liable for the payment of any unfunded tenant improvement allowance, refurbishment allowance or similar obligation.
(c) Tenant will not unreasonably withhold, delay shall from time to time within ten (10) Business Days of written request from Landlord execute and deliver any documents or defer its consent thereto, provided instruments that such modifications do not materially adversely increase the obligations of Tenant hereunder, may be reasonably required by any Mortgagee or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderLessor to confirm any subordination.
Appears in 1 contract
Sources: Deed of Lease (FBR & Co.)
Subordination and Attornment. Landlord may sell the Land and become the tenant under a ground or underlying lease of the Land and this Lease and all rights of Tenant hereunder will then be subject and subordinate to such underlying lease and any extensions or modifications thereof. This Lease and all of Tenant’s rights hereunder shall also be subject and subordinate to any mortgage or mortgages (and the liens thereof) now or at any time hereafter in force against the Building, the Land and/or the underlying leasehold estate, and to all advances made or hereafter to be made upon the security thereof. For purposes of this Lease, “Mortgagee” shall mean the mortgagee, from time to time, under any mortgage granted by Landlord and now or hereafter encumbering the Property or any portion thereof or interest therein. Tenant shall execute such further instruments subordinating this Lease to any such mortgage or mortgages as Landlord from time to time may request. Tenant covenants and agrees that, if by reason of any default on the part of Landlord herein as tenant under said underlying lease, or as mortgagor under any mortgage to which this Lease is subject and subordinate subordinate, said underlying lease is terminated or such mortgage is foreclosed by summary proceedings, voluntary agreement or otherwise, Tenant, at the election of the landlord under said underlying lease or the Mortgagee of such mortgage, as the case may be, will attorn to and recognize such landlord or Mortgagee as the “Landlord” under this Lease. Tenant further agrees to execute and deliver at any time upon request of Landlord, any Mortgagee or any party which shall succeed to the liens interest of all mortgagesLandlord as tenant under said underlying lease, deeds any instrument to evidence such attornment. However, in the event of trust and other security instruments now or hereafter placed upon the Building or the Building Project attornment, no Mortgagee or any portion thereof and all ground and party which shall succeed to the interest of Landlord as tenant under said underlying lease shall be: (i) liable for any act or omission of Landlord, or subject to any offsets or defenses which Tenant might have against Landlord (prior to such Mortgagee or other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”party becoming Landlord under such attornment), and to (ii) liable for any and all renewals, extensions, modificationssecurity deposit or bound by any prepaid Rent not actually received by such Mortgagee or other party, or refinancings thereof, without (iii) bound by any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination future modification of this Lease not consented to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under by such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate Mortgagee or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA)party. Tenant waives the provisions provision of any law or regulation, now or hereafter in effect, effect which may give, or purport give to give, Tenant any right of election to terminate this Lease or to alter surrender possession of the obligations of Tenant hereunder Premises in the event that any proceeding is brought by landlord under said underlying lease or the Mortgagee under any such foreclosure mortgage to terminate said underlying lease or termination foreclose such mortgage. At the election of any Mortgagee (expressed in a document signed by such Mortgagee), such Mortgagee may make all or other proceeding is prosecuted or completedsome of Tenant’s rights and interests in this Lease superior to any mortgage held by such Mortgagee and the lien thereof. Landlord shall will use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by obtain for Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDAat Tenant’s sole cost and expense, including but not limited to any fees or charges a nondisturbance agreement from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderProperty.
Appears in 1 contract
Sources: Lease Agreement (Ulta Salon, Cosmetics & Fragrance, Inc.)
Subordination and Attornment. This Lease is subject and subordinate to the liens of all mortgagesMortgages, deeds of trust and other security instruments now or hereafter placed upon the Office Building or the land on which the Office Building Project sits or any portion thereof of them and all ground and other underlying leases from which Landlord’s interest interest, is derived (said mortgagesMortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgage” or “Mortgages” and the mortgagees, beneficiaries, beneficiaries secured parties, and ground lessors thereunder lessors, from time to time being hereinafter called call the “Mortgagee” or “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordinationrefinancing. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, . Tenant if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgagesale, shall attorn to the purchaser, purchaser recognize the purchaser as the landlord Landlord under this Lease, and make all payments required hereunder under this Lease to such new landlord Landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA)whatsoever. Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. If requested by Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of or any Mortgages upon request by TenantMortgagee, provided that (i) Tenant shall pay all costs incurred promptly execute any certificate or document in such form and substance as may be determined by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; Mortgagee confirming the subordination and (ii) neither attornment provisions contained in this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of Section 25 and such SNDAother matters required by such Mortgagee. Notwithstanding anything contained herein in this Section 25 to the contrary, any Mortgagee mortgagee may at any time subordinate the lien of its Mortgages Mortgage to the operation and effect of this Lease without obtaining the Tenant’s consent theretoconsent, by giving the Tenant written notice thereofnotice, in which event this Lease shall be deemed to be senior to such Mortgages Mortgage without regard to the respective dates of execution and/or or recordation of such Mortgages Mortgage and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderMortgage.
Appears in 1 contract
Subordination and Attornment. This Lease is A. Subject to the further provisions of this Article 43 and to the terms of any agreement entered into pursuant to this Article 43, this Lease, and all rights of Tenant hereunder, are and shall be subject and subordinate to the liens of all mortgages, deeds of trust ground and other security instruments underlying leases now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived existing (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter collectively referred to as “Superior Leases” and the holder of the lessor’s interest therein shall be referred to as a “Superior Lessor”) and to all mortgages and building loan agreements including, without limitation, leasehold mortgages and building loan agreements, which may now or hereafter affect the Land or the Building or a Superior Lease (hereinafter collectively referred to as “Superior Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time holder of the mortgagee’s interest therein shall be referred to time being hereinafter called as a “MortgageesSuperior Mortgagee”), to each and every advance made or hereafter to be made under Superior Mortgages and to any and all renewals, extensions, modifications, or refinancings thereof, without any replacements and extensions of Superior Leases and Superior Mortgages. This Article shall be self-operative and no further act instrument of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination shall be required in confirmation of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable such subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute and deliver in recordable form any certificate instrument that Owner, the lessor of any Superior Lease or other document confirming the holder of any Superior Mortgage may reasonably request to evidence such subordination. Tenant covenants and agrees that(subject to any applicable Non-Disturbance Agreement (as hereinafter defined)) that if by reason of a default under any Superior Mortgage or Superior Lease, if any proceedings are brought for such Superior Mortgage is foreclosed or such Superior Lease and the foreclosure of any leasehold estate of the MortgagesOwner in the Demised Premises is terminated, Tenant, if requested to do so by then at the election of the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by or the then holder of the Mortgage, shall reversionary interest in the Demised Premises:
(i) Tenant will attorn to the purchaser, and will recognize the such purchaser or holder as the Tenant’s landlord under this Lease, and make the holder of such Superior Mortgage or the lessor under such Superior Lease shall recognize such attornment and accept Tenant as a direct tenant upon all payments required hereunder of the terms and provisions of this Lease. Tenant agrees to such new landlord without execute and deliver, at any deduction or set-off time and from time to time, upon the request of Owner, the holder of any kind whatsoever Superior Mortgage or the lessor under any such Superior Lease, any instrument which may be necessary or appropriate to evidence such attornment, except that such successor landlord shall not be (a) bound by any prepayment of rent more than one month in advance except pursuant to the provisions of this Lease, (b) bound to pay any portion of Owner’s Contribution, (c) bound by any modification of this Lease made without the consent of such Superior Mortgagee or Superior Lessor, of whose identity Tenant has received written notice or (d) subject to any offsets or defenses against or liable for any previous act or omission of any prior landlord (including Owner) under this Lease, except if such act or omission continues after the date of such succession and then only for so much as provided in has accrued subsequent to the date of such SNDA)succession, or
(ii) this Lease will be terminated. Tenant further waives the provisions of any statute or rule of law or regulation, now or hereafter in effect, effect which may give, give or purport to give, give Tenant any right of election to terminate this Lease or to alter surrender possession of the obligations of Tenant hereunder Demised Premises in the event any proceeding is brought by (i) the holder of any Superior Mortgage to foreclose such Mortgage or (ii) by a Superior Lessor under any Superior Lease to terminate the same, and agrees that this Lease shall not be affected in any way whatsoever by any such foreclosure proceeding unless such Superior Mortgagee or termination or other proceeding is prosecuted or completed. Landlord Superior Lessor elects to terminate this Lease.
B. Notwithstanding anything in Section 43A above to the contrary, Owner shall use commercially reasonable efforts to provide Tenant with obtain for Tenant’s benefit, from each current and future Superior Lessor and/or Superior Mortgagee, an SNDA from the current holder agreement (hereinafter, a “Non-Disturbance Agreement”) in favor of any Mortgages upon request by Tenant, provided in reasonable and customary form, which provides generally that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event so long as this Lease shall be deemed in full force and effect (a) Tenant shall not be named or joined in any action or proceeding to foreclose the Superior Mortgage or terminate the Superior Lease in question, or to otherwise enforce its rights thereunder, unless required by law, (b) no such foreclosure or termination, or any action or proceeding brought in pursuance thereof, shall result in a cancellation or termination of this Lease, nor shall Tenant’s possession or rights hereunder be senior to such Mortgages without regard disturbed, by enforcement of any rights given to the respective dates of execution and/or recordation holder pursuant to the terms of such Mortgages mortgage or lease by law or otherwise, nor by the termination or expiration of such lease, and this Lease shall continue in full force and thereafter effect, and in any of such events, such holder will accept the attornment by Tenant to such holder, and (c) if any such Superior Mortgagee or Superior Lessor shall become the owner of Owner’s interest in the Building, this Lease shall continue in full force and effect as a direct lease between Tenant and the then owner of Owner’s interest in the Building, upon all of the terms, provisions, conditions and obligations of this Lease, except that such successor landlord shall not be (i) bound by any prepayment of rent more than one month in advance, except to the extent that (x) such prepayment was expressly required under this Lease or (y) such Superior Mortgagee or Superior Lessor has actually received such prepayment, (ii) bound by any modification of this Lease made without the consent of such Superior Mortgagee or Superior Lessor, of whose identity Tenant has received written notice or (iii) subject to any offsets or defenses against or liable for any previous act or omission of any prior landlord (including Owner) under this Lease, except if such act or omission continues after the date of such succession and then only for so much as has accrued subsequent to the date of such succession. Tenant shall promptly execute and deliver any such Non-Disturbance Agreement described above reasonably requested by Owner, a Superior Lessor or Superior Mortgagee. The failure of Owner to obtain a Non-Disturbance Agreement from any Superior Lessor or Superior Mortgagee shall not constitute a default by Owner hereunder, so long as Owner shall have made commercially reasonable efforts to obtain the same rights as to required by this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. Section 43B.
C. If, in connection with obtaining the procurement, continuation or renewal of any financing for which the BuildingLand or the Building or the interest of the lessee under a Superior Lease represents collateral in whole or in part, a Mortgagee any institutional lender shall request reasonable modifications in of this Lease as a condition to of such financing, Tenant will not unreasonably withhold, withhold or delay or defer its consent theretothereto and shall execute and deliver without charge such conforming documents therefor as such institutional lender may reasonably require, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, under this Lease (other than to a merely administrative or materially de minimis extent) or adversely affect any rights of Tenant under the leasehold interest hereby created Lease (other than to a merely administrative or Tenant’s use de minimis extent).
D. Supplementing Section 43 A and enjoyment Section 43B above, Owner represents that, as of the Premisesdate hereof, or increase (i) there is no Superior Lessor and (ii) the amount only Superior Mortgagee is LaSalle Bank National Association, as Trustee for the Registered Holders of Annual Basic Rent and Additional Rent payable hereunderBank of America Commercial Mortgage Inc. Commercial Mortgage Pass-through Certificates, Series 2005-5.
Appears in 1 contract
Sources: Office Lease (Atari Inc)
Subordination and Attornment. This Lease is subject and subordinate to the liens of all mortgages, deeds of trust and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. 18.1 Notwithstanding anything contained herein to the contrary, Lessor’s fee interest shall be superior to any Mortgagee may at leasehold mortgage or deed of trust on the Bond Financed Property, and such leasehold mortgage or deed of trust shall take subject to same with the intent of the parties being that a foreclosure of the leasehold mortgage or deed of trust shall in no event eliminate Lessor’s fee interest. In addition, any time subordinate leasehold mortgage or deed of trust shall survive the lien termination of its Mortgages the Lease provided that the leasehold mortgagee or deed of trust trustee or beneficiary or any designator successor (the “Successor”) affirmatively assumes all Lessee’s obligations hereunder within one hundred twenty (120) days after succeeding to Lessee’s interest; provided that enforcement of any obligations of the Trustee as Successor shall be limited to the operation Trustee’s interest in property subject to the deed of trust and effect of this Lease without obtaining to the Tenant’s consent thereto, by giving Trust Estate (as defined in the Tenant written notice thereof, in which event this Lease Indenture) and no claim shall be deemed to be senior to such Mortgages without regard to brought against the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, Trustee personally in connection with obtaining financing for such obligations. Until such Successor is appointed and has so assumed all such obligations, Lessor may appoint a temporary operator to maintain and shutdown or operate the BuildingBond Financed Property (in Lessor’s sole discretion), and the expenses thereof incurred by Lessor or its temporary operator shall be reimbursed to Lessor by the Successor within ten (10) days after written request from Lessor. If the Successor fails to expressly assume in writing one hundred twenty (120) days after succeeding to Lessee’s interest this Facilities Lease shall automatically terminate. As a Mortgagee shall request reasonable modifications in this Lease as a material condition to Lessee’s execution of this Facilities Lease, upon its execution of this Facilities Lease, Lessee shall provide Lessor with an executed Memorandum of Lease in form and substance acceptable to Lessor (the “Memorandum”) to be executed by Lessee and Lessor, which will be recorded in the real estate records in the county in which the Bond Financed Property are located at Lessee’s expense. The Memorandum will contain the following provisions: “Lessee agrees that upon expiration or any proper termination of the Facilities Lease, it will release this Memorandum (and the Facilities Lease) of record, and further agrees that if such financingwritten termination or release is not filed of record with thirty (30) days after such expiration or termination, Tenant then Lessor is hereby authorized to execute on behalf, and in the name, of Lessee any such release and record the same in the public records at Lessee’s expense. This power in favor of Lessor is coupled with an interest and is not revocable by Lessee.” The Memorandum will not unreasonably withholdbe recorded by Lessee at its expense within five (5) days following the initial execution hereof and any final completion of Exhibit A and approval thereof by Lessor and promptly released by Lessee, delay at is expense, after expiration or defer termination of this Facilities Lease.
18.2 Should Lessor sell, convey or transfer its consent theretointerest in the Bond Financed Property, then such party shall be substituted herein as Lessor and Lessee shall attorn to such succeeding party as its Lessor under this Facilities Lease promptly upon any such succession, provided that such modifications do succeeding party assumes all of Lessor’s duties and obligations under this Facilities Lease and agrees not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the to disturb Lessee’s leasehold interest hereby created hereunder in accordance with this Section 18.2 as long as an Event of Default has not occurred and is not continuing beyond any grace or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable cure period hereunder.
Appears in 1 contract
Sources: Lease and Development Agreement (Fortress Transportation & Infrastructure Investors LLC)
Subordination and Attornment. This Lease is subject and subordinate to the liens of (a) In all mortgagesevents, deeds of trust and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding notwithstanding anything contained herein to the contrary, Landlord’s fee simple title shall be superior to any leasehold mortgage on the Premises, and such leasehold mortgagee shall take subject to same with the intent of the parties being that a foreclosure of the leasehold mortgage shall in no event impair or eliminate Landlord’s fee title interest.
(b) Tenant hereby agrees, upon Landlord’s written request, to subordinate this Lease to any mortgage encumbering the Premises, provided that the holder (“Mortgagee”), Tenant and Landlord execute a commercially reasonable form of Subordination, Non-disturbance and Attornment Agreement (“SNDA”) substantially in the form attached hereto as Exhibit “G” and incorporated herein by this reference, with such modifications as Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, reasonably require. The term “mortgage” whenever used in which event this Lease shall be deemed to include deeds to secure debt, deeds of trust, security assignments, ground leases and any other encumbrances against Landlord’s interest in the Premises, and any reference to the “Mortgagee” of a mortgage shall be senior deemed to include the beneficiary under a deed of trust and the lessor under a ground lease. Landlord represents to Tenant that as of the Effective Date of this Lease by Landlord and as of the Commencement Date, there is no mortgage encumbering the Premises.
(c) Should Landlord sell, convey or transfer its interest in the Premises or should any Mortgagee succeed to Landlord’s interest through foreclosure or deed in lieu thereof, then Tenant shall attorn to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and succeeding party as its landlord under this Lease and thereafter promptly upon any such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent theretosuccession, provided that such modifications do succeeding party assumes all of Landlord’s duties and obligations under this Lease and agrees not materially adversely increase to disturb Tenant’s leasehold interest hereunder in accordance with the obligations SNDA.
(d) Tenant agrees to give the Mortgagee of any Mortgage simultaneously with Landlord, by registered or certified mail, a copy of any notice of default served upon the Landlord by Tenant, provided that prior to such notice Tenant hereunderhas received notice (by way of service on Tenant of a copy of an assignment of rents and leases, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment otherwise) of the Premisesaddress of such Mortgagee and containing a request therefor, or increase and further provided, Tenant shall have no liability to such Mortgagee in the amount of Annual Basic Rent and Additional Rent payable hereunderevent Tenant fails to so notify. Tenant further agrees that Mortgagee shall have a right, simultaneously with Landlord, to cure such default.
Appears in 1 contract
Sources: Lease Agreement (Zulily, Inc.)
Subordination and Attornment. This Lease is subject and Landlord shall have the right to subordinate to the liens of all mortgages, deeds of trust and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular existing future Mortgage first ground Lease, deed of trust or mortgage encumbering the Building Demised Premises (a "mortgage"), and advances made on the security thereof and any renewals, modifications, consolidations, replacements or extensions thereof, whenever made or recorded. Landlord's right to obtain such a subordination is subject to Landlord's providing Tenant with a written Subordination, Non-disturbance and Attornment Agreement from the Project following ground lessor, beneficiary or mortgagee wherein Tenant's right to peaceable possession of the date Demised Premises during the Lease Term shall not be disturbed if Tenant pays the Rent and performs all of Tenant's obligations under this Lease and to any renewalsis not otherwise in default, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of in which case Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, transferee of or successor to Landlord's interest in the Demised Premises and recognize the purchaser transferee or successor as the landlord Landlord under this Lease, and make further providing that such lessor, beneficiary or mortgagee shall at all payments required hereunder times recognize Tenant's rights under this Lease, including making insurance and condemnation proceeds available to such new landlord without any deduction Landlord and/or Tenant for reconstruction or set-off repair of any kind whatsoever (except the Demised Premises after a casualty or condemnation so long as this Lease is not terminated by Landlord or Tenant as provided in such SNDA)Articles 8 or 9 hereof. Tenant waives the provisions of If any law ground lessor, beneficiary or regulation, now or hereafter in effect, which may give, or purport mortgagee elects to give, Tenant any right to terminate have this Lease or superior to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation ground lease, deed of trust or mortgage and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the gives Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard superior to the respective dates ground lease, deed of execution and/or recordation of such Mortgages and trust or mortgage whether this Lease is dated prior or subsequent to the date of the ground lease, deed of trust or mortgage or the date of recording thereof, and thereafter further providing that such Mortgagee lessor, beneficiary or mortgagee shall have at all times recognize Tenant's rights under this Lease, including making insurance and condemnation proceeds available to Landlord and/or Tenant for reconstruction or repair of the same rights Demised Premises after a casualty or condemnation so long as to this Lease is not terminated by Landlord or Tenant as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, provided in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay Articles 8 or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunder9 hereof.
Appears in 1 contract
Subordination and Attornment. Landlord represents that the Project is currently not encumbered by any Encumbrances as of the Lease Date. This Lease is subject and all of Tenant’s rights hereunder shall be automatically subordinate to the liens of all mortgages, deeds of trust and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground Encumbrances, to all renewals, modifications, consolidations, replacements and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”)extensions thereof, and to any and all renewalsadvances made or hereafter made on the security thereof or Landlord’s interest therein, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided hereinunless an Encumbrancer requires in writing that this Lease be superior to its Encumbrance; provided, howeverthat, a condition precedent so long as Tenant is not in default under the Lease beyond any applicable cure period, its right to possession and the other terms of the Lease shall remain in full force and effect notwithstanding any foreclosure, deed-in-lieu of foreclosure or other exercise of remedies by the holder of any Encumbrance and the subordination of this Lease to any particular future Mortgage first encumbering Encumbrance shall be subject to Tenant’s receipt of a commercially reasonable nondisturbance agreement from the Building Encumbrancer. If any proceeding is brought for the foreclosure of any such Encumbrance (or if by deed in lieu of foreclosure the Project following Property is obtained by Encumbrancer or any purchaser, or if any ground lease is terminated), then (i) Tenant shall attorn, without any deductions or set-offs whatsoever, to the date Encumbrancer or purchaser or any successors thereto upon any foreclosure sale or deed in lieu thereof (or to the ground lessor) and (ii) Tenant shall recognize such purchaser or Encumbrancer as the “Landlord” under this Lease, provided that such Encumbrancer agrees not to disturb Tenant’s possession of the Premises so long as Tenant is not in default under this Lease beyond any applicable cure period. Landlord’s interest herein may be assigned as security at any time to any Encumbrancer. The provisions of this Section 21.1 shall be self-operative without execution of any further instruments; provided, however, within ten (10) Business Days after request by Landlord or any Encumbrancer, Tenant shall execute such further commercially reasonable instruments or assurances which are consistent with the provisions of this Article 21 to evidence or confirm the subordination or superiority of this Lease and to any renewalssuch Encumbrance; provided, extensionsthat, modificationssuch instrument or assurance shall provide that so long as Tenant is not in default under the Lease beyond any applicable cure period, consolidations its right to possession and replacements thereofthe other terms of the Lease shall remain in full force and effect notwithstanding any foreclosure, is deed-in-lieu of foreclosure or other exercise of remedies by the holder of any Encumbrance. Tenant waives the provisions of any Requirement which may give or purport to give Tenant any right or election to terminate or otherwise adversely affect this Lease and the obligations of the Tenant hereunder in the event of any foreclosure proceeding, deed in lieu thereof or sale. Tenant agrees with Encumbrancer that if Encumbrancer or any foreclosure sale purchaser shall succeed to the interest of Landlord under this Lease, Encumbrancer shall obtain not be (i) liable for any action or omission of any prior Landlord under this Lease (except for any acts or omissions of which Encumbrancer had received notice in writing, and are continuing), (ii) subject to any offsets or defenses which Tenant might have against any prior Landlord (except for any offsets or defenses of which Encumbrancer had received notice in writing, and are continuing), (iii) bound by any Rent which Tenant might have paid for more than the benefit current month to any prior Landlord, or (iv) liable for any Deposit or Letter of Credit (each as defined below) not actually received by such Encumbrancer. Tenant agrees that the foregoing list may be expanded in connection with the execution of a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by and among Landlord, howeverTenant and Encumbrancer, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use include additional commercially reasonable efforts to provide Tenant with an SNDA from limitations on the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderEncumbrancer's liability.
Appears in 1 contract
Subordination and Attornment. This Lease Tenant is and shall be subject and subordinate at all times to (a) all ground leases or underlying leases that may hereafter be executed affecting the liens of all mortgages, deeds Premises and (b) any mortgage or deed of trust and other security instruments that may now exist or hereafter be placed upon upon, and encumber, any or all of (x) the Building Premises; (y) any ground leases or underlying leases for the Building Project benefit of the Premises; and (z) all or any portion thereof of Landlord's interest or estate in any of said items. Tenant acknowledges that as of the date of execution of this Lease, title to the Premises is vested in the IDB (as defined in Section 28 below) and that certain financing documentation, held by and benefiting Landlord, or Landlord's affiliate, encumbers the Premises, all in connection with a prior PILOT program previously in place at the Premises. Landlord agrees that ei▇▇▇▇ (▇) material matters of record evidencing or otherwise executed and recorded in connection with such prior PILOT program shall be proper ly released in connection with the implementation of the contemplated PILOT Arrangement or (b) otherwise modified and amended in connection with the contemplated PILOT Arrangement which modification or amendment shall be subject to Tenant's reasonable approval as a condition to its obligations hereunder. Landlord represents that the Premises is not subject to any ground lease, mortgage or similar encumbrance as of the Commencement Date, except in connection with any provisions of the PILOT program to which the Premises was subject. Tenant shall execute and other underlying leases from which deliver, within ten (10) days of Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments's request, and ground leases being hereinafter referred to as “Mortgages” and in the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”form reasonably requested by Landlord (or its lender), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to documents evidencing the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is provided that Landlord shall obtain for the benefit of Tenant a such lender provides commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor assurances to Tenant in connection with any request that this Lease be subordinated to any future mortgage or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordinationdeed of trust. Tenant hereby covenants and agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder any successor to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderLan dlord.
Appears in 1 contract
Subordination and Attornment. This 23.1 Conditioned upon Tenant’s receipt of an executed SNDA from each Mortgagee, this Lease is subject and at Landlord’s option will be subordinate to the liens of all mortgagesany mortgage, deeds deed of trust and other security instruments related documents now or hereafter placed upon the Building or the Building Project or any portion thereof and Complex (including all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”advances made thereunder), and to any and all amendments, renewals, extensions, modificationsreplacements, or refinancings restatements thereof (collectively, “Mortgage”).
23.2 If any Mortgagee elects to have this Lease superior to the lien of its Mortgage and gives notice to Tenant, this Lease will be deemed prior to such Mortgage whether this Lease is dated prior or subsequent to the date of such Mortgage or the date of recording thereof.
23.3 In confirmation of subordination or superior position, without as the case may be, Tenant will execute such documents (including any further act of the SNDA) as may be required by Mortgagee within ten (10) days after written demand, with any modifications which may be mutually acceptable to Mortgagee and Tenant. Tenant except as expressly provided hereinagrees that no documentation other than this Lease is required to evidence such subordination; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is however that Landlord shall obtain for provide to Tenant, on or before the benefit of Tenant Commencement Date, a commercially reasonable subordinationSubordination, nonNon-disturbance Disturbance and attornment agreement Attornment Agreement (“SNDA”) from any Mortgagee then encumbering the lessor or lender under such Mortgage. If requested by LandlordBuilding, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of Mortgagee’s standard SNDA form with any law or regulation, now or hereafter in effect, which may give, or purport modifications mutually acceptable to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completedMortgagee and Tenant. Landlord shall use commercially reasonable efforts provide to provide Tenant with an SNDA from any Mortgagee hereinafter encumbering the current holder of any Mortgages upon request by TenantBuilding, provided in such future Mortgagee’s standard form, which shall include provisions to the effect that (i) Tenant shall pay all costs incurred may exercise any termination rights expressly granted to Tenant in this Lease without further consent by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; Mortgagee, and (ii) neither this Lease nor in the obligations event of either party hereunder shall be conditional upon foreclosure under the obtaining of such SNDA. Notwithstanding anything contained herein to the contraryMortgage, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages continue and Tenant’s rights under this Lease and thereafter such Mortgagee shall have the same rights as will not be disturbed even though foreclosure action has taken place.
23.4 Conditioned upon Tenant’s receipt of an executed SNDA from each Mortgagee, Tenant agrees to this Lease as it would have had were this Lease executed and delivered before the execution attorn to all successor owners of such Mortgages. If, in connection with obtaining financing for the Building, whether such ownership is acquired by sale, foreclosure of a Mortgagee shall request reasonable modifications in this Lease as a condition to such financingMortgage, Tenant will not unreasonably withhold, delay or defer its consent theretootherwise, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or successor owner recognizes Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderrights hereunder pursuant to such SNDA.
Appears in 1 contract
Sources: Lease (Constant Contact, Inc.)
Subordination and Attornment. This Lease is and Tenant's rights under this Lease are subject and subordinate to the liens any mortgage, deed of trust, ground lease, or underlying lease (and to all mortgagesrenewals, deeds of trust and other security instruments modifications, consolidations, replacements, or extensions thereof), now or hereafter placed upon affecting the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided hereinPremises; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building that such mortgagor, beneficiary or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant ground lessor has executed a commercially reasonable Subordination and Non-Disturbance Agreement providing that the Lease and Tenant occupancy shall not be disturbed so long as Tenant is not in an Event of Default under the Lease. The provisions of this Paragraph shall be self‑operative, and no further instrument of subordination shall be required. In confirmation of such subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute and deliver any certificate commercially reasonable 33 American Assets Trust – Lease Form 1/31/2023 instruments that Landlord, any Lender, or other document confirming the lessor under any ground or underlying lease, may request to evidence such subordination, provided such instrument contains customary non-disturbance language in favor of Tenant and is consistent with the provisions of the next sentence including, without limitation, a Subordination, Attornment, and Non-Disturbance Agreement in the form to be commercially reasonable and acceptable to Lender. Tenant agrees thatIf any Lender, if any proceedings are brought for or the foreclosure lessor of any of ground or underlying lease affecting the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the MortgagePremises, shall attorn hereafter succeed to the purchaser, recognize the purchaser as the landlord rights of Landlord under this Lease, whether by foreclosure, deed in lieu of foreclosure, or otherwise, then (i) such successor landlord shall not be subject to any offsets or defenses which Tenant might have against Landlord, (ii) such successor landlord shall not be bound by any prepayment by Tenant of more than one month's installment of Basic Monthly Rent or any other Rent, (iii) such successor landlord shall not be subject to any liability or obligation of Landlord except those arising after such succession, (iv) Tenant shall attorn to and make recognize such successor landlord as ▇▇▇▇▇▇'s landlord under this Lease and such successor shall not disturb Tenant’s possession under this Lease, (v) Tenant shall promptly execute and deliver any commercially reasonable instruments that may be necessary to evidence such attornment and non-disturbance, (vi) upon such attornment, this Lease shall continue in effect as a direct lease (whether separately documented or not) between such successor landlord and Tenant upon and subject to all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulationthis Lease, now or hereafter and (vii) Tenant shall be entitled to quiet enjoyment of the Premises for so long as Tenant is not in effect, which may give, or purport to give, Tenant any right to terminate default under the terms of this Lease or any substitute lease referenced above. Notwithstanding the preceding provisions of this Paragraph, if any ground lessor or Lender elects to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither have this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein prior to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages ground lease, deed of trust, or mortgage, and gives written notice thereof to Tenant that this Lease shall be deemed prior to such ground lease, deed of trust, or mortgage, whether this Lease is dated prior or subsequent to the operation and effect date of this Lease without obtaining the Tenant’s consent theretosuch ground lease, by giving the Tenant written notice thereofdeed of trust, in which event or mortgage, then this Lease shall be deemed to be senior to such Mortgages without regard prior to the respective dates of execution and/or recordation lien of such Mortgages ground lease or mortgage and this Lease and thereafter such Mortgagee ground lease, deed of trust, or mortgage shall have the same rights as be deemed to be subordinate to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderLease.
Appears in 1 contract
Subordination and Attornment. This (a) Upon notice by Landlord, Tenant shall subordinate its rights under this Lease to any lease(s) wherein Landlord is subject the lessee and subordinate to the liens lien of all mortgages, deeds any mortgage(s) or deed(s) of trust and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgagescollectively, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “MortgageesInstrument”), regardless of whether such Instrument now exists or is hereafter created, to all advances thereunder, to any interest thereon, and to any and all modifications, consolidations, renewals, extensions, modifications, or refinancings replacements and extensions thereof, without provided the lessors, mortgagees or beneficiaries agree to provide Tenant with an agreement of non-disturbance in a commercially reasonable form reasonably acceptable to Tenant and Landlord, agreeing to recognize this Lease and Tenant’s rights hereunder in the event of termination or foreclosure under the Instrument so long as Tenant is not in default under this Lease beyond the expiration of any further act applicable notice and cure periods. Tenant agrees to execute any agreement evidencing such subordination and non-disturbance in the form attached hereto as Exhibit G and incorporated herein by this reference or such other commercially reasonable form as is reasonably acceptable to Tenant, at Landlord’s request. Any such lessor, mortgagee or beneficiary may elect to have this Lease prior to its instrument, and in the event of such election and upon notification by such lessee, mortgagee or beneficiary to Tenant, this Lease shall be deemed prior to said Instrument, whether this Lease is dated prior or subsequent to said Instrument. Notwithstanding anything to the Tenant except as expressly provided herein; providedcontrary contained in this Lease, however, it shall be a condition precedent to the subordination performance of each of Tenant’s obligations under this Lease to any particular future Mortgage first (including, without limitation, Tenant’s obligation for the payment of Minimum Rent, Percentage Rent and Tenant’s Share of Common Area Expenses, Taxes and Insurance), that Tenant obtain from each lessor, mortgagee or beneficiary under an Instrument presently encumbering the Building or the Project following the date Shopping Center, an agreement of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance in the form attached hereto as Exhibit G or in other commercially reasonable form reasonably acceptable to Tenant and attornment agreement Landlord.
(“SNDA”b) from If Landlord’s interest in the lessor Premises is transferred (except in a sale-leaseback financing transaction), or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of, or in the event of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder exercise of the Mortgagepower of sale under, any Instrument, or if any lease in a sale-leaseback transaction wherein Landlord is the lessee is terminated, Tenant shall attorn to the and recognize such purchaser, recognize the purchaser assignee, mortgagee or beneficiary as the landlord Landlord under this Lease, provided such purchaser, assignee, mortgagee or beneficiary has executed or agrees to execute an agreement of subordination, non-disturbance and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder attornment in the event that any such foreclosure form attached hereto as Exhibit G or termination or in other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts form reasonably acceptable to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenantand Landlord, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and recognizing this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable rights hereunder.
Appears in 1 contract
Sources: Retail Lease (Sport Chalet Inc)
Subordination and Attornment. This Lease is subject Landlord hereby represents and subordinate warrants to the liens of all mortgages, Tenant that there are no mortgages or deeds of trust and other security instruments currently encumbering the Building. Upon request of Landlord, Tenant will, in writing, subordinate its rights hereunder to the lien of any mortgage, deed of trust, ground lease or underlying lease now or hereafter placed upon in force against the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”)Premises, and to any and all renewals, extensions, modifications, advance made or refinancings thereof, without any further act of hereafter to be made upon the Tenant except as expressly security thereof provided herein; provided, however, the holder thereof agrees in writing in a condition precedent form reasonably satisfactory to the parties not to disturb Tenant's possession in the event of a foreclosure or deed-in-lieu of foreclosure. Tenant shall execute and return to Landlord any such subordination documents within ten (10) business days of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such MortgageLandlord's written request. If requested by Tenant does not provide Landlord with such subordination documents within ten (10) business days of Landlord's written request, however, then Tenant shall promptly hereby authorizes Landlord to execute any certificate or other document confirming such subordinationsubordination documents acting as duly authorized agent for Tenant provided the same is not inconsistent with the terms hereof. Tenant agrees that, if In the event any proceedings are brought for foreclosure, or in the foreclosure of any event of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder exercise of the Mortgagepower of sale under any mortgage or dead of trust made by Landlord covering the Premises, Tenant shall attorn to the purchaserpurchaser at any such foreclosure, or to the grantee of a deed in lieu of foreclosure, and recognize the such purchaser or grantee as the landlord Landlord under this LeaseLease provided such party agrees in writing in a form reasonably satisfactory to the parties not to disturb Tenant's possession so long as Tenant is not in default hereunder past any applicable notice and cure period. The provisions of this Article to the contrary notwithstanding, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except so long as provided Tenant is not in such SNDA). Tenant waives the provisions of any law or regulationdefault hereunder, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages remain in full force and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing effect for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable full term hereunder.
Appears in 1 contract
Sources: Lease (Tel Save Com Inc)
Subordination and Attornment. This Lease is subject and subordinate to the liens of (a) In all mortgagesevents, deeds of trust and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding notwithstanding anything contained herein to the contrary, Landlord’s fee simple title shall be superior to any Mortgagee may at any time leasehold mortgage on the Premises, and such leasehold mortgagee shall take subject to same with the intent of the parties being that a foreclosure of the leasehold mortgage shall in no event impair or eliminate Landlord’s fee title interest.
(b) Tenant hereby agrees, upon Landlord’s written request, to subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining to any mortgage encumbering the Tenant’s consent theretoPremises, provided that the holder (“Mortgagee”), Tenant and Landlord execute a commercially reasonable form of Subordination, Non-disturbance and Attornment Agreement (“SNDA”) in the form attached hereto as Exhibit “G” attached hereto and incorporated herein by giving the Tenant written notice thereof, this reference. The term “mortgage” whenever used in which event this Lease shall be deemed to include deeds to secure debt, deeds of trust, security assignments, ground leases and any other encumbrances against Landlord’s interest in the Premises, and any reference to the “Mortgagee” of a mortgage shall be senior deemed to include the beneficiary under a deed of trust and the lessor under a ground lease. Landlord represents to Tenant that as of the Effective Date of this Lease by Landlord and as of the Commencement Date, there is no mortgage encumbering the Premises.
(c) Should Landlord sell, convey or transfer its interest in the Premises or should any Mortgagee succeed to Landlord’s interest through foreclosure or deed in lieu thereof, then Tenant shall attorn to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and succeeding party as its landlord under this Lease and thereafter promptly upon any such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent theretosuccession, provided that such modifications do succeeding party assumes all of Landlord’s duties and obligations under this Lease and agrees not materially adversely increase to disturb Tenant’s leasehold interest hereunder in accordance with the obligations SNDA.
(d) Tenant agrees to give the Mortgagee of any Mortgage simultaneously with Landlord, by registered or certified mail, a copy of any notice of default served upon the Landlord by Tenant, provided that prior to such notice Tenant hereunderhas received notice (by way of service on Tenant of a copy of an assignment of rents and leases, or materially otherwise) of the address of such Mortgagee and containing a request therefor, and further provided, Tenant shall have no liability to such Mortgagee in the event Tenant fails to so notify. Tenant further agrees that Mortgagee shall have a right, simultaneously with Landlord, to cure such default. This Lease may not be modified or amended so as to reduce the Rent or shorten the Term, or so as to adversely affect in any other respect to any material extent the leasehold interest hereby created or Tenant’s use and enjoyment rights of the PremisesLandlord, nor shall this Lease be cancelled or increase surrendered (except as expressly permitted under this Lease), without the amount prior written consent, in each instance, of Annual Basic Rent and Additional Rent payable hereunderthe Mortgagee.
Appears in 1 contract
Sources: Triple Net Lease Agreement (American Realty Capital Properties, Inc.)
Subordination and Attornment. This a. Within ninety (90) days following the date of this Lease, or as soon as reasonably possible thereafter, Landlord shall provide Tenant with a non-disturbance and attornment agreement substantially in the form attached as Exhibit F hereto from Fleet National Bank, which is the only holder of a Superior Interest (as defined below) as of the date of this Lease. As used herein and elsewhere in this Lease, an "Encumbrance" is any mortgage, deed of trust, ground lease, underlying lease or like encumbrance affecting any part of the Real Property or any interest of Landlord therein, and the holder of an Encumbrance that is superior to Tenant's leasehold interest is referred to in this Lease as the holder of a "Superior Interest."
b. If an Encumbrance is created following the date of this Lease, then this Lease shall be automatically subject and subordinate to such Encumbrance upon delivery to Tenant of a non-disturbance agreement executed by the liens holder of all mortgagesthe Encumbrance providing that if Tenant is not in default under this Lease beyond any applicable grace period, deeds of trust that such party will recognize this Lease and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof Tenant's rights hereunder and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instrumentswill not disturb Tenant's possession hereunder, and ground leases being hereinafter referred to if this Lease is by operation of law terminated in a foreclosure, that a new lease will be entered into on the same terms as “Mortgages” and this Lease for the mortgagees, beneficiaries, secured partiesremaining term hereof, and ground lessors thereunder from time including such further matters and conditions to time being hereinafter called “Mortgagees”), the foregoing as may be customarily and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act commercially reasonably required by the holder of the Encumbrance. Tenant except as expressly provided herein; providedshall, howeverwithin fifteen (15) days after Landlord's request, execute and deliver to Landlord a condition precedent to document evidencing the subordination of this Lease to any a particular future Mortgage first encumbering the Building or the Project following Encumbrance created after the date of this Lease and to any renewalsLease, extensions, modifications, consolidations and replacements thereof, is provided that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment provisions provided for in this Paragraph 21. b. are included in such document. Notwithstanding anything to the contrary herein, if, in order to obtain a non-disturbance agreement (“SNDA”) from the lessor pursuant to Paragraphs 21.a. or lender under such Mortgage. If requested by Landlordb. hereof, howeverLandlord is required to expend any sum, Tenant shall promptly execute reimburse Landlord for such sums within fifteen (15) days following receipt of Landlord's written request therefor.
c. If the interest of Landlord in the Real Property or the Building is transferred to any certificate person ("Purchaser") pursuant to or other document confirming such subordination. Tenant agrees that, if any in lieu of proceedings are brought for the foreclosure enforcement of any of the MortgagesEncumbrance, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall immediately attorn to the purchaser, recognize the purchaser as the landlord under this LeasePurchaser, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to continue in full force and effect as a direct lease between the Purchaser and Tenant on the terms and conditions set forth herein upon notice from Landlord of such Mortgages without regard transfer, subject to the respective dates terms of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderany applicable non-disturbance agreement.
Appears in 1 contract
Sources: Office Lease (Ask Jeeves Inc)
Subordination and Attornment. This Lease is and Lessee's interest ---------------------------- hereunder shall at all times be subject and subordinate to the liens lien and security title of the Senior Loan Documents and any advances made thereunder and all mortgagesrenewals, deeds modifications, consolidations, replacements, substitutions and extensions thereof. Lessee and Owner acknowledge and agree that Lessee's payments of trust the Senior Loan Debt Service component of the Base Rental and Lessee's payment to Senior Lender of any other security instruments now amounts due under the Senior Loan Documents shall not be deemed to: (i) cause Senior Lender to succeed to or hereafter placed upon to assume any obligations or responsibilities as landlord or Owner under the Building Lease, all of which shall continue to be performed and discharged solely by Owner unless and until Senior Lender has agreed to any attornment by Lessee under this Lease (which Senior Lender has no obligation to do); (ii) relieve Owner of any obligations under the Lease; or (iii) cure any default by Owner under any of the Building Project Senior Loan Documents. Lessee shall be entitled to full credit under the Lease for any Base Rental or Additional Rental paid to Senior Lender pursuant to the terms hereof to the same extent as if such Base Rental were paid directly to Owner.
(i) Lessee shall have first given written notice of Owner's act or failure to act to Senior Lender, specifying the act or failure to act on the part of Owner which would give rise to Lessee's rights; and
(ii) Senior Lender, after receipt of such notice, shall have failed or refused to correct or cure the conditions complained of within a reasonable time thereafter (in no event more than ninety (90) days), provided that such cure period shall include a reasonable time for Senior Lender to obtain possession of the Leased Property if possession is reasonably necessary for Senior Lender to correct or cure the condition or to foreclose the Deed of Trust, if Senior Lender notifies the Lessee of its intention to take possession of the Leased Property or to complete the foreclosure of such Deed or Trust and unconditionally commits to correct or cure such conditions. If Senior Lender is prohibited by any process or injunction issued by any court or by reason of any action by any court having jurisdiction or any portion thereof bankruptcy, debt or rehabilitation or insolvency proceedings involving Owner or Lessee from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof, the Lease, at the option of the Senior Lender, shall continue to be in full force and effect and the times for commencing or prosecuting such foreclosure or other proceedings shall be extended for the period of such prohibition. Lessee shall deliver to Senior Lender a duplicate copy of any and all ground and other underlying leases from notices regarding any default which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder Lessee may from time to time being hereinafter called “Mortgagees”)give or serve upon Owner pursuant to the provisions of this Lease. Copies of such notices given by Lessee to Owner shall be delivered to Senior Lender simultaneously with delivery to Owner. No such notice by Lessee to Owner hereunder shall be deemed to have been given unless a copy thereof has been given to Senior Lender pursuant to the terms hereof. If Senior Lender or any other party ("Successor Landlord") becomes owner of ------------------ the Leased Property as the result of a foreclosure or any other exercise by Senior Lender of its right and remedies under the Senior Loan Documents or by a deed in lieu thereof, then, at Successor Landlord's election, Lessee shall recognize and attorn to Successor Landlord as Lessee's direct landlord and Successor Landlord shall not be (i) liable for any act or omission of Owner, (ii) subject to any and all renewals, extensions, modifications, offset right or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease termination right that Lessee may have relating to any particular future Mortgage first encumbering the Building event or the Project following occurrence before the date of this Lease and to attornment, including any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain claim for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off damages of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions result of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event breach by Owner that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that occurred before (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to after) the date of attornment; (iii) bound by any fees representation or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations warranty of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contraryOwner, by any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect previous modification of this Lease without obtaining not consented to in writing by Senior Lender or by any payment of Lessee of more than one month's rent or any security deposit not actually received by Successor Landlord. If KCCI and/or SELCO have foreclosed on the Tenant’s consent theretoSupplemental Collateral and the proceeds of such foreclosure has been applied to the reduction or payment in full of the B Investor Loan and/or SELCO Contribution, by giving then the Tenant written notice thereof, in which event this Lease Base Rental shall be deemed adjusted to be senior to reflect such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, reduction or payment in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderfull.
Appears in 1 contract
Subordination and Attornment. 34.1 This Lease is shall be subject and subordinate to the liens lien of all mortgagesany mortgage, deeds deed of trust and other security instruments trust, or lease in which Landlord is tenant now or hereafter placed upon in force against the Building or the Building Project Premises or any portion thereof and to all ground advances made or hereafter to be made upon the security thereof without the necessity of the execution and other underlying leases delivery of any further instruments on the part of Tenant to effectuate such subordination. Prior to the Term Commencement Date, Landlord shall obtain from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and any lenders or ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Premises a written agreement in form reasonably satisfactory to Tenant except as expressly provided herein; providedproviding for recognition of Tenant’s interests under this Lease in the event of a foreclosure of the lender’s security interest or termination of the ground lease. Further, however, a condition precedent to the subordination of this Lease to a ground lease or instrument of security shall be conditioned upon Tenant’s receipt from any particular future Mortgage first encumbering such ground lessors or lenders such a recognition agreement.
34.2 Notwithstanding the Building foregoing, Tenant shall execute and deliver upon demand such further commercially reasonable instrument or the Project following the date instruments evidencing such subordination of this Lease and to the lien of any such mortgage or mortgages or deeds of trust or lease in which Landlord is tenant as may be required by Landlord. However, if any such mortgagee, beneficiary or Landlord under lease wherein Landlord is tenant so elects, this Lease shall be deemed prior in lien to any renewalssuch lease, extensionsmortgage, modifications, consolidations or deed of trust upon or including the Premises regardless of date and replacements thereof, is that Landlord Tenant shall obtain for the benefit of Tenant execute a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under statement in writing to such Mortgageeffect at Landlord’s request. If requested by Landlord, howeverTenant fails to execute any document required from Tenant under this Section within ten (10) days after written request therefor, Tenant shall promptly hereby constitutes and appoints Landlord or its special attorney-in-fact to execute and deliver any such document or documents in the name of Tenant. Such power is coupled with an interest and is irrevocable.
34.3 Upon written request of Landlord and opportunity for Tenant to review, Tenant agrees to execute any certificate or other document confirming such subordination. Tenant agrees thatLease amendments not materially altering the terms of this Lease, if required by a mortgagee or beneficiary of a deed of trust encumbering real property of which the Premises constitute a part incident to the financing of the real property of which the Premises constitute a part. Any change affecting the amount or timing of the consideration to be paid by Tenant or modifying the Term of this Lease shall be deemed as materially altering the terms hereof.
34.4 In the event any proceedings are brought for foreclosure, or in the foreclosure of any event of the Mortgagesexercise of the power of sale under any mortgage or deed of trust made by the Landlord covering the Premises, Tenant, if requested to do so by the Tenant shall at the election of the purchaser at the such foreclosure or sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that upon any such foreclosure or termination or other proceeding is prosecuted or completed. sale and recognize such purchaser as the Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither under this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderLease.
Appears in 1 contract
Sources: Lease (Zosano Pharma Corp)
Subordination and Attornment. 22.1 This Lease is subject and will be subordinate to the liens of all mortgagesany mortgage, deeds deed of trust and other security instruments related documents now or hereafter placed upon the Building or the Building Project or any portion thereof and Complex (including all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”advances made thereunder), and to any and all amendments, renewals, extensions, modificationsreplacements, or refinancings thereofrestatements thereof (collectively, without "Mortgage"), unless Landlord or Mortgagee advises Tenant that it will not be subordinate. Tenant agrees that no documentation other than this Lease is required to evidence such subordination.
22.2 If any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent Mortgagee elects to have this Lease superior to the subordination lien of its Mortgage and gives notice to Tenant, this Lease will be deemed prior to any particular future such Mortgage first encumbering the Building whether this Lease is dated prior or the Project following subsequent to the date of such Mortgage or the date of recording thereof.
22.3 In confirmation of subordination or superior position, as the case may be, Tenant will execute such documents as may be required by Mortgagee and, if it fails to do so within 10 days after demand, Tenant hereby irrevocably appoints Landlord as Tenant's attorney-in-fact in Tenant's name, place, and stead to do so.
22.4 Tenant hereby attorns to all successor owners of the Building, whether such ownership is acquired by sale, foreclosure of a Mortgage, or otherwise.
22.5 If it becomes necessary to foreclose the Mortgage, Mortgagee shall neither terminate the Lease nor join Tenant in summary or foreclosure proceedings so long as Tenant is not in default under any of the terms, covenants, or conditions of the Lease. If Mortgagee succeeds to the interest of Landlord under the Lease, Mortgagee shall not be: (a) liable for any act or omission of any prior landlord (including Landlord); (b) liable for return of any security deposit unless such deposit has been delivered to the Mortgagee by Landlord or is in an escrow fund available to Mortgagee; (c) subject to any offsets or defenses that Tenant might have against any prior landlord (including Landlord); (d) bound by any Rent or additional Rent that Tenant might have paid for more than the current month to any prior landlord (including Landlord); (e) personally liable under the Lease, Mortgagee's liability thereunder being limited to its interest in the Real Property; or (f) bound by any notice of termination given by Landlord to Tenant without Mortgagee's prior written consent thereto.
22.6 Tenant acknowledges that a current Mortgagee requires that Rent payable to Landlord under this Lease and be paid directly by Tenant to any renewals, extensions, modifications, consolidations and replacements thereof, is that Mortgagee upon a default by Landlord shall obtain for under the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by LandlordAfter receipt of notice from Mortgagee to Tenant, howeverat the address set forth above (or at such other address of which Mortgagee has been notified in writing), Tenant shall promptly execute any certificate pay to Mortgagee all monies due or other document confirming such subordinationto become due to Landlord under the Lease. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested shall have no responsibility to do so ascertain whether such demand by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of Mortgagee is permitted under the Mortgage, shall attorn or to inquire into the purchaserexistence of a default. Landlord hereby waives any right, recognize the purchaser as the landlord under this Leaseclaim, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, demand it may now or hereafter in effecthave against Tenant by reason of such payment to Mortgagee, which may give, or purport to give, Tenant and any right to terminate this Lease or to alter such payment shall discharge the obligations of Tenant hereunder in the event that any to make such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts payment to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunder.
Appears in 1 contract
Subordination and Attornment. This (a) Tenant agrees that this Lease is and shall be subject and subordinate to the liens lien of all mortgages, deeds of trust and other security instruments any mortgages that may now or hereafter be placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”)Real Property, and to any all present or future advances under the obligations secured thereby, and all renewals, extensionsamendments, modifications, or refinancings consolidations, replacements and extensions thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the full extent of all amounts secured by such mortgages from time to time. Said subordination of this Lease to shall have the same force and effect as if such mortgages and any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any such renewals, extensions, modifications, consolidations consolidations, replacements and replacements thereofextensions thereof had been executed, acknowledged, delivered and recorded prior to the execution of this Lease. Notwithstanding the foregoing, Tenant's agreement to subordinate its leasehold interest in the Premises to the interest of any mortgagee or deed of trust holder (collectively, "mortgagee") is that contingent upon such mortgagee, for itself and its successors and assigns, entering into a nondisturbance agreement with Tenant which will provide that, so long as no event of default by Tenant under this Lease has occurred and is continuing: (i) Tenant shall not be joined as a party defendant in any foreclosure or other action which may be instituted by such mortgagee by reason of any default under the terms of its lending arrangements; (ii) Tenant shall not be dispossessed of the Premises by such mortgagee; (iii) Tenant's leasehold estate under the Lease shall not be terminated or disturbed by such mortgagee; and (iv) Tenant's rights under the Lease shall not be diminished, or Tenant's obligations increased, by reason of any default under the mortgagee's lending arrangements or any foreclosure of any mortgage or transfer of the Real Property to such mortgagee in lieu of foreclosure. Landlord shall agrees to obtain for the benefit of Tenant a commercially reasonable subordination, non-non- disturbance and attornment agreement (“SNDA”consistent with the requirements set forth above) from all existing mortgagees of the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Real Property.
(b) Tenant agrees that, if any proceedings are brought for that in the event of a foreclosure of any mortgage by the lender holding same, or the acceptance of a deed in lieu of foreclosure by the lender, or any other succession of said lender to fee ownership, Tenant will attorn to and recognize that lender as its landlord under this Lease for the remainder of the Mortgages, Tenant, if requested to do so by term of this Lease (including all extension periods which have been or are hereafter exercised) upon the purchaser at the foreclosure sale same terms and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser conditions as the landlord under are set forth in this Lease, and make Tenant hereby agrees to pay and perform all payments required hereunder of the obligations of Tenant pursuant to the Lease following any such new landlord without any deduction foreclosure or set-off of any kind whatsoever (except as provided proceeding in such SNDA)lieu thereof. To the extent not prohibited by law, Tenant hereby waives the provisions of any law statute or regulationrule of law, now or hereafter in effect, which may give, give or purport to give, give Tenant any right or election to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and otherwise adversely affect this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations obligation of Tenant hereunder, in the event any foreclosure proceeding is brought, prosecuted or materially adversely affect completed.
(c) The provisions of this Section 23.1 shall be self-operative and no further instrument shall be required; provided, however, in confirmation thereof Tenant shall execute such further assurances as may be required from time to time. Refusal by the leasehold interest hereby created or Tenant’s use and enjoyment Tenant to execute such instruments within ten (10) days of written request shall entitle the PremisesLandlord to the option of terminating this Lease, or increase the amount of Annual Basic Rent and Additional Rent payable declaring a default hereunder, and/or seeking monetary damages and/or injunctive relief.
Appears in 1 contract
Sources: Lease Agreement (Tellium Inc)
Subordination and Attornment. 30.1 This Lease is shall be subject and subordinate to the liens lien of all mortgagesany mortgage, deeds deed of trust and other security instruments trust, or lease in which Landlord is tenant now or hereafter placed upon in force against the Building or the Building Project and to all advances made or hereafter to be made upon the security thereof without the necessity of the execution and delivery of any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgagesfurther instruments on the part of Tenant to effectuate such subordination; provided with respect to any future mortgage, deeds deed of trust, or lease in which Landlord is tenant, such subordination shall be subject to Tenant’s receipt of a commercially reasonable nondisturbance agreement. Landlord warrants to Tenant that there is not currently any financing encumbering the Project or Building. Not more than thirty (30) days after the Execution Date, Landlord will obtain from the Ground Lessor under the Ground Lease a Ground Lessor Recognition and Non-Disturbance Agreement in the form attached to this Lease as Exhibit H, or such other security instrumentsform as is reasonably acceptable to Tenant and the Ground Lessor. Landlord shall be responsible for the cost of recording such Ground Lessor Recognition and Non-Disturbance Agreement, including any transfer or other taxes incurred in connection with such recordation. If Landlord has not obtained a Ground Lessor Recognition and Non-Disturbance Agreement from the Ground Lessor within sixty (60) days after the Execution Date, and ground leases being hereinafter referred Landlord does not obtain a Ground Lessor Recognition and Non-Disturbance Agreement within ten (10) business days after receiving a written notice from Tenant (the “NDA Notice”) that Tenant intends to as “Mortgages” terminate this Lease because Landlord fails to obtain a Ground Lessor Recognition and Non-Disturbance Agreement from the mortgageesGround Lessor, beneficiaries, secured partiesthen Tenant may elect to terminate this Lease by giving written notice to Landlord at any time after the end of such ten (10) business day period, and ground lessors thereunder prior to Landlord obtaining a Ground Lessor Recognition and Non-Disturbance Agreement from time to time being hereinafter called “Mortgagees”)the Ground Lessor. The NDA Notice must include the following statement in capital letters and bold face print: IF LANDLORD FAILS TO OBTAIN A GROUND LESSOR RECOGNITION AND NON-DISTURBANCE AGREEMENT FROM THE GROUND LESSOR WITHIN TEN (10) BUSINESS DAYS FOLLOWING LANDLORD’S RECEIPT OF THIS NOTICE, TENANT MAY ELECT TO TERMINATE THE LEASE.
30.2 Notwithstanding the foregoing, Tenant shall execute and to any and all renewals, extensions, modifications, deliver upon demand such further commercially reasonable instrument or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the instruments evidencing such subordination of this Lease to the lien of any particular future Mortgage first encumbering such mortgage or mortgages or deeds of trust or lease in which Landlord is tenant as may be required by Landlord, provided that such instrument includes a commercially reasonable nondisturbance agreement. If any such mortgagee, beneficiary or landlord under a lease wherein Landlord is tenant (each, a “Mortgagee”) so elects, however, this Lease shall be deemed prior in lien to any such lease, mortgage, or deed of trust upon or including the Building or Premises regardless of date and Tenant shall execute a statement in writing to such effect at Landlord’s request. If Tenant fails to execute any document required from Tenant under this Section within ten (10) business days after written request therefor, Tenant shall be in Default hereunder. For the Project following avoidance of doubt, “Mortgagees” shall also include historic tax credit investors and new market tax credit investors.
30.3 Upon written request of Landlord and opportunity for Tenant to review, Tenant agrees to execute any Lease amendments not materially altering the date terms of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for or materially adversely affecting Tenant’s quiet enjoyment of the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees thatPremises, if required by a Mortgagee incident to the financing of the real property of which the Premises constitute a part.
30.4 In the event any proceedings are brought for foreclosure, or in the foreclosure of any event of the Mortgagesexercise of the power of sale under any mortgage or deed of trust made by Landlord covering the Premises, Tenant, if requested to do so by Tenant shall at the election of the purchaser at the such foreclosure or sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that upon any such foreclosure or termination or other proceeding is prosecuted or completed. sale and recognize such purchaser as Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither under this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderLease.
Appears in 1 contract
Subordination and Attornment. (a) This Lease is and all rights of Tenant hereunder are and shall be subject and subordinate to the liens of all mortgages, deeds of trust and other security instruments any ground or underlying lease that may now or hereafter placed upon be in effect regarding the Building or the Land, to any mortgage now or hereafter encumbering the Premises, the Building Project and/or the Land, to all advances made or any portion thereof and hereafter to be made upon the security of such mortgage, to all ground and other underlying leases from which Landlord’s interest is derived (said mortgagesamendments, deeds of trustmodifications, other security instrumentsrenewals, consolidations, extensions, and restatements of such ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”)or underlying lease or mortgage, and to any replacements and all renewals, extensions, modifications, substitutions for such ground or refinancings thereof, without any further act underlying lease or mortgage provided that the holder of said mortgage agrees not to disturb Tenant’s possession of the Premises so long as Tenant except is not in default hereunder, as expressly provided herein; providedevidenced by a subordination, however, a condition precedent to the subordination nondisturbance agreement signed by said holder. Simultaneously with its execution of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewalsLease, extensions, modifications, consolidations and replacements thereof, is that Landlord Tenant shall obtain for the benefit of Tenant execute a commercially reasonable subordination, non-disturbance disturbance, and attornment agreement (“SNDA”) from agreement, in substantially the lessor or lender under form attached hereto as Exhibit F. Tenant acknowledges that the Building is currently encumbered by a mortgage, and Landlord and Tenant agree that an SNDA is a requirement of both parties and the Lease shall not be effective unless and until such Mortgage. If requested SNDA is executed and delivered by Landlord, howeverTenant and the mortgagee named therein.
(b) If any mortgagee or any lessor under a ground or underlying lease elects to have this Lease superior to its mortgage or lease and signifies its election in the instrument creating its lien or lease or by separate recorded instrument, Tenant then this Lease shall promptly execute be superior to such mortgage or lease, as the case may be. The term “mortgage”, as used in this Lease, includes any certificate deed to secure debt, deed of trust or security deed and any other document confirming such subordinationinstrument creating a lien or security title in connection with any other method of financing or refinancing. Tenant agrees thatThe term “mortgagee”, if any as used in this Lease, refers to the holder(s) of the indebtedness secured by a mortgage.
(c) If proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may giveof, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder power of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrarysale under, any Mortgagee may at any time subordinate mortgage covering the lien Premises, the Building and/or the Land, or if the interests of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event Landlord under this Lease shall be deemed to transferred by reason of deed in lieu of foreclosure or other legal proceedings, or in a termination of any lease under which Landlord may hold title, Tenant shall, at the option of the transferee or purchaser at foreclosure or under power of sale, or the lessor of the Landlord upon such lease termination, and provided Tenant has received non-disturbance, as the case may be senior (sometimes hereinafter called “such person”), attorn to such Mortgages person and shall recognize and be bound and obligated hereunder to such person as the Landlord under this Lease; provided, however, that no such person shall be (i)bound by payment of Rent for more than one (1) month in advance, except prepayments in the nature of security for performance by Tenant of obligations under this Lease (and then only if such prepayments have been deposited with and are under the control of such person); (ii) bound by any material amendment or modification of this Lease made without regard the express written consent of the mortgagee or lessor of the Landlord, as the case may be; (iii) obligated to cure any defaults under this Lease of any prior landlord (including Landlord); (iv) liable for any act or omission of any prior landlord (including Landlord); (v) subject to any offsets or defenses that Tenant might have against any prior landlord (including Landlord); or (vi) bound by any warranty or representation of any prior landlord (including Landlord) relating to work performed by any prior landlord (including Landlord) under this Lease. Tenant agrees to execute any attornment agreement not in conflict herewith requested by Landlord, the mortgagee or such person. Tenant’s obligation to attorn to such person shall survive the exercise of any such power of sale, foreclosure or other proceeding. Tenant agrees that the institution of any suit, action or other proceeding by any mortgagee to realize on Landlord’s interest in the Premises or the Building pursuant to the respective dates powers granted to a mortgagee under its mortgage, shall not, by operation of execution and/or recordation law or otherwise, result in the cancellation or termination of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of the Tenant hereunder. Notwithstanding that this Lease is expressly subject and subordinate to any mortgages, any mortgagee, its successors and assigns, or materially adversely affect other holder of a mortgage, may sell the leasehold interest hereby created Premises or Tenant’s use Building, in the manner provided in the mortgage and enjoyment may, at the option of such mortgagee, or other holder of the Premisesmortgage or note secured thereby, make such sale of the Premises or increase the amount of Annual Basic Rent and Additional Rent payable hereunderBuilding subject to this Lease.
Appears in 1 contract
Subordination and Attornment. This Lease is Sublease and Subtenant’s rights under this Sublease are subject and subordinate to the liens of all mortgagesany mortgage, deeds of trust and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds deed of trust, other security instrumentsground lease, and ground leases being hereinafter referred to as “Mortgages” and or underlying lease, including the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), Master Lease (and to any and all renewals, extensions, modifications, consolidations, replacements, or refinancings extensions thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effectaffecting the Premises, which may giveprovided any lender, beneficiary or purport to give, Tenant ground lessor under any right to terminate this Lease or to alter the obligations of Tenant hereunder such instrument shall agree that in the event that any such of a foreclosure or termination of ground lease or other proceeding Master Lease, Subtenant’s possession of the Premises shall not be disturbed so long as Subtenant is prosecuted or completednot in default under this Sublease. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder The provisions of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder Paragraph shall be conditional upon the obtaining self-operative, and no further instrument of subordination shall be required. In confirmation of such SNDAsubordination, however, Subtenant shall promptly execute and deliver any instruments that Sublessor, any Lender, or the lessor under any ground or underlying lease, may reasonably request to evidence such subordination, so long as such instruments are reasonably acceptable to Subtenant. Subtenant hereby irrevocably constitutes and appoints Sublessor as Subtenant’s special attorney-in-fact to execute and deliver such instruments. Notwithstanding anything contained herein the preceding provisions of this Paragraph, if any ground lessor or Lender elects to the contrary, any Mortgagee may at any time subordinate have this Sublease prior to the lien of its Mortgages ground lease, deed of trust, or mortgage, and gives written notice thereof to Subtenant that this Sublease shall be deemed prior to such ground lease, deed of trust, or mortgage, whether this Sublease is dated prior or subsequent to the operation and effect date of such ground lease, deed of trust, or mortgage, then this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease Sublease shall be deemed to be senior to such Mortgages without regard prior to the respective dates of execution and/or recordation lien of such Mortgages ground lease or mortgage and this Lease and thereafter such Mortgagee ground lease, deed of trust, or mortgage shall have the same rights as be deemed to be subordinate to this Lease as it would have had were this Lease executed and delivered before the execution of such MortgagesSublease. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunderIf any Lender, or materially adversely affect the leasehold interest hereby created lessor of any ground or Tenant’s use and enjoyment of underlying lease affecting the Premises, shall hereafter succeed to the rights of Sublessor under this Sublease, whether by foreclosure, deed in lieu of foreclosure or increase otherwise, then (i) such successor landlord shall not be subject to any offsets or defenses which Subtenant might have against Sublessor, (ii) such successor landlord shall not be bound by any prepayment by Subtenant of more than one month’s installment of Basic Monthly Rent or any other Rental, (iii) such successor landlord shall not be subject to any liability or obligation of Sublessor except those arising after such succession, (iv) Subtenant shall attorn to and recognize such successor landlord as Subtenant’s landlord under this Sublease, (v) Subtenant shall promptly execute and deliver any instruments that may be necessary to evidence such attornment, (vi) Subtenant hereby irrevocably appoints Sublessor (and such successor landlord) as Subtenant’s special attorney-in-fact to execute and deliver such instruments on behalf of Subtenant, and (vii) upon such attornment, this Sublease shall continue in effect as a direct lease between such successor landlord and Subtenant upon and subject to all of the amount provisions of Annual Basic Rent and Additional Rent payable hereunderthis Sublease.
Appears in 1 contract
Sources: Sublease Agreement (iVOW, Inc.)
Subordination and Attornment. This Lease is subject
(A) Tenant shall not, without the prior written consent of Landlord and subordinate to the liens of all mortgages, deeds of trust and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s lender, grant a leasehold mortgage against Tenant’s leasehold interest is derived in the Premises.
(said mortgagesB) Tenant hereby agrees, deeds of trustupon Landlord’s written request, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of subordinate this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease mortgage covering Landlord’s interest in and to any renewalsthe Premises, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of such mortgage (“Mortgagee”), Tenant and Landlord execute a SNDA in the Mortgageform attached hereto as Exhibit D attached hereto and incorporated herein by this reference that sets forth the terms and conditions of such subordination, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder subject to such new landlord without any deduction or set-off of any kind whatsoever (except revisions as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport are acceptable to giveLandlord, Tenant any right to terminate this Lease or to alter and the obligations of Tenant hereunder Mortgagee. The term “mortgage” whenever used in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to include deeds to secure debt, deeds of trust, security assignments and any other encumbrances against Landlord’s interest in the Premises, and any reference to the “Mortgagee” of a mortgage shall be senior deemed to include the beneficiary under a deed of trust.
(C) Should Landlord sell, convey or transfer its interest in the Premises in accordance with the terms of this Lease or should any Mortgagee succeed to Landlord’s interest through foreclosure or deed in lieu thereof, then Tenant shall attorn to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and succeeding party as its landlord under this Lease and thereafter promptly upon any such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent theretosuccession, provided that such modifications do succeeding party assumes all of Landlord’s duties and obligations under this Lease, recognizes the Lease as if the succeeding party were an original party thereto, and agrees not materially adversely increase to disturb Tenant’s leasehold interest and occupancy and use of the obligations Premises hereunder in accordance with the SNDA and Section 13.1 hereof.
(D) Tenant shall deliver to the Mortgagee of any Mortgage simultaneously with notice being given to Landlord, by registered or certified mail, a copy of any notice of default served upon the Landlord by Tenant, provided that prior to such notice Tenant hereunderhas received written notice (by way of service on Tenant of a copy of an assignment of rents and leases, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment otherwise) of the Premisesaddress of such Mortgagee and containing a request therefor. Tenant further agrees that Mortgagee shall have a right to cure such default during the applicable cure period specified herein if Landlord fails to do so. This Lease may not be modified or amended, nor shall this Lease be cancelled or increase surrendered (except as expressly permitted under this Lease), without the amount prior written consent, in each instance, of Annual Basic Rent and Additional Rent payable hereunderthe Mortgagee.
Appears in 1 contract
Subordination and Attornment. This Lease is subject and subordinate to the liens of all mortgages, deeds of trust ---------------------------- Superior Leases and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived Mortgages (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”defined in Section 24.4), and Tenant will attorn to each person or entity that succeeds to Landlord's interest under this Lease. This Section is self-operative, but if requested to confirm a subordination and/or attornment, Tenant will execute the standard form subordination and attornment agreements furnished by the then-current lessor or mortgagee under any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, Superior Leases and Mortgages (a condition precedent to the "Landlord's Mortgagee") within ten (10) days after request. The subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain attornment provisions will apply for the benefit of subsequent Landlord's Mortgagees, provided that they agree not to disturb Tenant's rights under this Lease if Tenant a commercially reasonable is not in default, and at the request of those Landlord's Mortgagees, Tenant will execute their standard form subordination, non-disturbance and attornment agreement agreements to provide for the foregoing within ten (“SNDA”10) from the lessor or lender under such Mortgagedays after request. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees thatHowever, if any proceedings are brought for Landlord or Landlord's Mortgagee elects in writing, this Lease will be superior to the foreclosure of any Superior Leases and Mortgages specified, regardless of the Mortgagesdate of recording, Tenantand Tenant will execute an agreement confirming this election on request. Landlord diligently and in good faith will request that The Bank of Nova Scotia, if requested the current Landlord's Mortgagee, agree to do so execute with Tenant the current non-disturbance, subordination and attornment agreement now in use by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder The Bank of the MortgageNova Scotia, shall attorn but notwithstanding anything to the purchasercontrary, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the any of Tenant's obligations or other Liabilities hereunder will be terminated, waived, excused or otherwise reduced in any way if for any reason The Bank of either party hereunder shall be conditional upon the obtaining of Nova Scotia refuses to execute such SNDA. Notwithstanding anything contained herein to the contrary, an agreement or any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay similar or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderother agreement.
Appears in 1 contract
Sources: Lease (Cmgi Inc)
Subordination and Attornment. This a. Following the execution of this Lease by the parties, Landlord shall obtain for Tenant from the current holder of a Superior Interest (as defined below)("Current Lender") a non-disturbance agreement providing that if Tenant is not in default under this Lease beyond any applicable grace period, Current Lender will recognize this Lease and Tenant's rights hereunder and will not disturb Tenant's possession hereunder, and if this Lease is by operation of law terminated in a foreclosure, that a new lease will be entered into on the same terms as this Lease for the remaining term hereof, and including such further matters and conditions to the foregoing as may be customarily and commercially reasonably required by Current Lender. Any and all charges imposed by Current Lender for issuing the aforementioned non-disturbance agreement shall be borne by Tenant, which charges are Five Hundred Dollars ($500.00) if Tenant signs Current Lender's standard form without modification and One Thousand Dollars ($1,000.00), plus Current Lender's attorneys' fees, if Tenant requests revisions to the standard form. As used herein and elsewhere in this Lease, an "Encumbrance" is any mortgage, deed of trust, ground lease, underlying lease or like encumbrance affecting any part of the Real Property or any interest of Landlord therein, and the holder of an Encumbrance that is superior to Tenant's leasehold interest is referred to in this Lease as the holder of a "Superior Interest."
b. If an Encumbrance is created following the date of this Lease, then this Lease shall be automatically subject and subordinate to such Encumbrance only upon delivery to Tenant of a non-disturbance agreement executed by the liens holder of all mortgagesthe Encumbrance providing that if Tenant is not in default under this Lease beyond any applicable grace period, deeds of trust that such party will recognize this Lease and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof Tenant's rights hereunder and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instrumentswill not disturb Tenant's possession hereunder, and ground leases being hereinafter referred to if this Lease is by operation of law terminated in a foreclosure, that a new lease will be entered into on the same terms as “Mortgages” and this Lease for the mortgagees, beneficiaries, secured partiesremaining term hereof, and ground lessors thereunder from time including such further matters and conditions to time being hereinafter called “Mortgagees”), the foregoing as may be customarily and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act commercially reasonably required by the holder of the Encumbrance. Tenant except as expressly provided herein; providedshall, howeverwithin ten (10) days after Landlord's request, execute and deliver to Landlord a condition precedent to document evidencing the subordination of this Lease to any a particular future Mortgage first encumbering the Building or the Project following Encumbrance created after the date of this Lease Lease, provided that the non-disturbance provisions provided for in this Paragraph 21. b. are included in such document. If Tenant fails to execute and deliver to any renewalsLandlord the required document within the required ten (10) day period, extensions, modifications, consolidations and replacements thereof, is then Tenant agrees that Landlord shall obtain for have the benefit right to execute and deliver such instrument in lieu of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordinationbe bound thereby. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale Any and provided that Tenant has been previously provided with an SNDA executed all charges imposed by the holder of the MortgageEncumbrance to issue the non-disturbance agreement shall be borne by Tenant.
c. If the interest of Landlord in the Real Property or the Building is transferred to any person ("Purchaser") pursuant to or in lieu of proceedings for enforcement of any Encumbrance, Tenant shall immediately attorn to the purchaser, recognize the purchaser as the landlord under this LeasePurchaser, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to continue in full force and effect as a direct lease between the Purchaser and Tenant on the terms and conditions set forth herein upon notice from Landlord or Purchaser of such Mortgages without regard transfer, subject to the respective dates terms of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderany applicable non-disturbance agreement.
Appears in 1 contract
Sources: Office Lease (Kitara Media Corp.)
Subordination and Attornment. 22.1 This Lease is subject and will be subordinate to the liens of all mortgagesany mortgage, deeds deed of trust and other security instruments related documents now or hereafter placed upon the Building or the Building Project or any portion thereof and Complex (including all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”advances made thereunder), and to any and all amendments, renewals, extensions, modificationsreplacements, or refinancings thereofrestatements thereof (collectively, without "Mortgage"), unless Landlord or Mortgagee advises Tenant that it will not be subordinate. ▇▇▇▇▇▇ agrees that no documentation other than this Lease is required to evidence such subordination.
22.2 If any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent Mortgagee elects to have this Lease superior to the subordination lien of its Mortgage and gives notice to Tenant, this Lease will be deemed prior to any particular future such Mortgage first encumbering the Building whether this Lease is dated prior or the Project following subsequent to the date of such Mortgage or the date of recording thereof.
22.3 In confirmation of subordination or superior position, as the case may be, ▇▇▇▇▇▇ will execute such documents as may be required by Mortgagee and, if it fails to do so within 10 days after demand, Tenant hereby irrevocably appoints Landlord as ▇▇▇▇▇▇'s attorney-in-fact in Tenant's name, place, and stead to do so.
22.4 Tenant hereby attorns to all successor owners of the Building, whether such ownership is acquired by sale, foreclosure of a Mortgage, or otherwise.
22.5 If it becomes necessary to foreclose the Mortgage, Mortgagee shall neither terminate the Lease nor join Tenant in summary or foreclosure proceedings so long as Tenant is not in default under any of the terms, covenants, or conditions of the Lease. If Mortgagee succeeds to the interest of Landlord under the Lease, Mortgagee shall not be: (a) liable for any act or omission of any prior landlord (including Landlord); (b) liable for the return of any security deposit unless such deposit has been delivered to the Mortgagee by Landlord or is in an escrow fund available to Mortgagee; (c) subject to any offsets or defenses that Tenant might have against any prior landlord (including Landlord); (d) bound by any Rent or additional Rent that Tenant might have paid for more than the current month to any prior landlord (including Landlord); (e) personally liable under the Lease, Mortgagee's liability thereunder being limited to its interest in the Real Property; or (f) bound by any notice of termination given by Landlord to Tenant without Mortgagee's prior written consent thereto.
22.6 Tenant acknowledges that a current Mortgagee requires that Rent payable to Landlord under this Lease and be paid directly by Tenant to any renewals, extensions, modifications, consolidations and replacements thereof, is that Mortgagee upon a default by Landlord shall obtain for under the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by LandlordAfter receipt of notice from Mortgagee to Tenant, howeverat the address set forth above (or at such other address of which Mortgagee has been notified in writing), Tenant shall promptly execute any certificate pay to Mortgagee all monies due or other document confirming such subordinationto become due to Landlord under the Lease. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested shall have no responsibility to do so ascertain whether such demand by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of Mortgagee is permitted under the Mortgage, shall attorn or to inquire into the purchaserexistence of a default. Landlord hereby waives any right, recognize the purchaser as the landlord under this Leaseclaim, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, demand it may now or hereafter in effecthave against Tenant by reason of such payment to Mortgagee, which may give, or purport to give, Tenant and any right to terminate this Lease or to alter such payment shall discharge the obligations of Tenant hereunder in the event that any to make such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts payment to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunder.
Appears in 1 contract
Subordination and Attornment. This (a) Subject to and expressly conditioned on the applicable Lender’s execution and delivery to Tenant of a subordination, non-disturbance, and attornment agreement in substantially the form attached hereto as Schedule 17.1, or in such other form as may be reasonably acceptable to Tenant (“SNDA”): (i) this Lease is subject and subordinate to the liens lien of all mortgagesany mortgage, deeds deed of trust and trust, ground lease, or other security instruments instrument that may now or hereafter placed upon encumber the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived Premises (said mortgageseach, deeds of trust, other security instruments, and ground leases being hereinafter referred to as a “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “MortgageesMortgage”), and to any all funds and all renewalsindebtedness intended to be secured thereby, extensionsas such Mortgage may be renewed, modificationsextended, modified, or refinancings thereofrefinanced, without and (ii) in the event the Premises or Landlord’s interest therein is transferred by foreclosure, or by deed in lieu of foreclosure, of any further act Mortgage, Tenant shall attorn to such transferee. Notwithstanding the foregoing, any holder of the Tenant except as expressly provided herein; provided, however, a condition precedent Mortgage to the subordination of which this Lease is subordinate (a “Lender”) may elect to declare this Lease to be superior to the lien of such Mortgage. Tenant agrees to execute and return the SNDA within 5 Business Days of presentment of same by Landlord or Lender, and within 5 Business Days of Landlord’s receipt of the executed SNDA from Lender, Landlord shall deliver to Tenant the SNDA executed by Landlord and Lender. Tenant hereby irrevocably and unconditionally appoints Landlord as Tenant’s true and lawful attorney-in-fact, to execute the SNDA in Tenant’s name, place, and stead if Tenant fails to do so within the above-referenced 5 Business Day period, which failure is not cured within 5 Business Days after notice from Landlord to Tenant. This power of attorney is coupled with an interest and is irrevocable prior to the full performance of Tenant’s obligations hereunder.
(b) Tenant waives the provisions of any particular future Mortgage first encumbering the Building statute or the Project following the date rule of law now or hereafter in effect which may give or purport to give Tenant any right to terminate or otherwise adversely affect this Lease and to Tenant’s obligations hereunder in the event any renewalsforeclosure proceeding is prosecuted or completed or in the event the Premises or Landlord’s interest therein is transferred by foreclosure, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit by deed in lieu of Tenant foreclosure or otherwise. Within five (5) days of a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under written request of such Mortgage. If requested by Landlord, howevertransferee, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, such transferee and shall recognize the purchaser such transferee as the landlord under this Lease. Tenant agrees that upon any such attornment, and make all payments required hereunder such transferee shall not be (i) bound by any payment of the Base Rent or Additional Rent more than one month in advance, except prepayments in the nature of security for the performance by Tenant of its obligations under this Lease, but only to the extent such prepayments have been delivered to such new landlord transferee, (ii) bound by any amendment of this Lease made without any deduction or set-off the written consent of any kind whatsoever (except Lender existing as provided in of the date of such SNDA). Tenant waives the provisions amendment, other than any amendments memorializing Tenant’s unilateral exercise of any law of its express rights in the Lease (including, without limitation, any renewal options), (iii) liable for damages for any breach, act or regulation, now or hereafter in effect, which may giveomission of any prior landlord, or purport (iv) subject to giveany offsets or defenses which Tenant might have against any prior landlord; provided, Tenant any right however, that after succeeding to terminate Landlord’s interest under this Lease, such transferee shall agree to perform in accordance with the terms of this Lease or to alter the all obligations of Tenant hereunder Landlord arising after the date of transfer.
(c) Notwithstanding anything to the contrary contained in this Section 17.1, in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenantconflict between the terms of any SNDA entered into in accordance with Section 17.1(a) above and the terms of Section 17.1(b) above, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment terms of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderSNDA shall control.
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Subordination and Attornment. This a. Within sixty (60) days following the execution of this Lease, or as soon as reasonably possible thereafter, Landlord shall provide Tenant with a Subordination, Non-Disturbance and Attornment Agreement from Fleet National Bank (which is the only holder of a Superior Interest (as defined below) as of the date of this Lease) in the form attached as Exhibit H.
b. As used herein and elsewhere in this Lease, an “Encumbrance” is any mortgage, deed of trust, ground lease, underlying lease or like encumbrance affecting any part of the Real Property or any interest of Landlord therein, and the holder of an Encumbrance that is superior to Tenant’s leasehold interest is referred to in this Lease as the holder of a “Superior Interest.” If an Encumbrance is created following the date of this Lease, then this Lease shall be automatically subject and subordinate to such Encumbrance upon delivery to Tenant of a non-disturbance agreement executed by the liens holder of all mortgagesthe Encumbrance providing that if Tenant is not in default under this Lease beyond any applicable notice and cure period, deeds that such party will recognize this Lease and Tenant’s rights hereunder and will not disturb Tenant’s possession hereunder, and if this Lease is by operation of trust law terminated in a foreclosure, that a new lease will be entered into on the same terms as this Lease for the remaining term hereof, and other security instruments now or hereafter placed upon including such further matters and conditions to the Building or foregoing as may be customarily and commercially reasonably required by the Building Project or any portion thereof and all ground and other underlying leases from which holder of the Encumbrance. Tenant shall, within fifteen (15) days after Landlord’s interest is derived (said mortgagesrequest, deeds of trust, other security instruments, execute and ground leases being hereinafter referred deliver to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, Landlord a condition precedent to document evidencing the subordination of this Lease to any a particular future Mortgage first encumbering the Building or the Project following Encumbrance created after the date of this Lease and to any renewalsLease, extensions, modifications, consolidations and replacements thereof, is provided that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under provisions provided for in this Paragraph 21.b. are included in such Mortgagedocument. If requested by LandlordTenant fails to execute and deliver to Landlord the required instrument within the required fifteen (15) day period, howeverthen Landlord may send a second written notice to Tenant requesting that Tenant execute and deliver such instrument to Landlord pursuant to the terms hereof. Notwithstanding anything to the contrary herein, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought reimburse Landlord for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs Landlord’s reasonable attorneys’ fees, if any, incurred by Landlord in connection with obtaining such SNDA, including but not limited to a non-disturbance agreement and (ii) any fees or charges from assessed by the lender in connection with the issuance of the non-disturbance agreement, such reimbursement to be made by Tenant within fifteen (15) days following receipt of Landlord’s lender written invoice therefor. The aforementioned reimbursement obligation shall only apply to non-disturbance agreements obtained pursuant to this Paragraph 21.b.
c. If the interest of Landlord in the Real Property or such lender’s counsel; and the Building is transferred to any person (ii“Purchaser”) neither this Lease nor the obligations pursuant to or in lieu of either party hereunder proceedings for enforcement of any Encumbrance, Tenant shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein immediately attorn to the contraryPurchaser, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to continue in full force and effect as a direct lease between the Purchaser and Tenant on the terms and conditions set forth herein upon notice from Landlord of such Mortgages without regard transfer, subject to the respective dates terms of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderany applicable non-disturbance agreement.
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Subordination and Attornment. This Subject to Tenant’s receipt of a commercially reasonable SNDA (as more fully described below), ▇▇▇▇▇▇ agrees that this Lease is and shall be, at all times, subject and subordinate to (i) the liens lien of all mortgagesany mortgage, deeds deed of trust and or other security instruments encumbrances now existing or hereafter placed upon executed which Landlord may create against the Premises, the Building or the Project, including all modifications, renewals, extensions and replacements thereof, and to all advances made or hereafter to be made upon the security of such mortgages or trust deeds, unless the holders of such mortgages, trust deeds or other encumbrances, or the lessors under such ground lease or underlying leases, require in writing that this Lease be superior thereto, and (ii) all ground or underlying leases now existing or hereafter executed affecting the Building or the Project, including all modifications, renewals, extensions and replacements thereof; provided, however, that regardless of any default under any such ground or underlying lease or any termination of any such ground or underlying lease, so long as Tenant timely performs all covenants and conditions of this Lease and continues to make all timely payments hereunder, this Lease and ▇▇▇▇▇▇’s possession and rights hereunder shall not be disturbed by any ground or underlying landlord, or anyone claiming under or through any such ground or underlying landlord. Tenant shall execute and deliver any commercially reasonable documents confirming the subordination of this Lease within ten (10) Business Days after delivery of same by Landlord, provided that with respect to any ground or underlying lease, the ground or underlying landlord agrees therein that this Lease will not be terminated if Tenant is not in default beyond applicable notice and cure periods following the termination of any such ground or underlying lease. Tenant hereby agrees that a Subordination, Nondisturbance and Attornment Agreement (“SNDA”) which is substantially in the form attached hereto as Exhibit E shall be deemed to be commercially reasonable for purposes of the immediately preceding sentence. Landlord represents and warrants to Tenant that, as of the Effective Date, Landlord has not granted a monetary encumbrance affecting the Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest that is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter currently in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunder.
Appears in 1 contract
Sources: Triple Net Space Lease (Navan, Inc.)
Subordination and Attornment. This Lease is subject and subordinate to the liens of all mortgages, deeds of trust and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA18.1. Notwithstanding anything contained herein to the contrary, Lessor’s ownership interest in the Tax-Exempt Facilities shall be superior to any Mortgagee may at leasehold mortgage or deed of trust on the Tax-Exempt Facilities (including the Deed of Trust), and such leasehold mortgage or deed of trust shall take subject to same with the intent of the parties being that a foreclosure of such leasehold mortgage or deed of trust shall in no event eliminate Lessor’s ownership interest. In addition, any time subordinate such leasehold mortgage or deed of trust shall survive the lien termination of its Mortgages the Facilities Lease (including, without limitation, a rejection of this Facilities Lease in a bankruptcy or other insolvency proceeding) provided that such leasehold mortgagee or deed of trust trustee or beneficiary or any designator successor (the “Successor”) affirmatively assumes all of Lessee’s obligations hereunder within one hundred twenty (120) days after succeeding to Lessee’s interest or the date of termination of the Facilities Lease, whichever is later; provided that enforcement of any obligations of the Trustee as Successor shall be limited to the operation Trustee’s interest in property subject to such leasehold mortgage or deed of trust and effect to the Trust Estate and no claim shall be brought against the Trustee personally in connection with such obligations. Until such Successor is appointed and has so assumed all such obligations, Lessor may appoint a temporary operator to maintain and shutdown or operate the Tax-Exempt Facilities (in Lessor’s sole discretion), and the expenses thereof incurred by Lessor or its temporary operator shall be reimbursed to Lessor by the Successor within ten (10) business days after written request from Lessor. If the Successor fails to expressly assume in writing all of Lessee’s obligations hereunder within the one hundred twenty (120) day period provided above, this Facilities Lease shall automatically terminate without any further rights of redemption.
18.2. As a material condition to Lessee’s execution of this Facilities Lease, Lessee shall provide Lessor with an executed Memorandum of Lease without obtaining in form and substance acceptable to Lessor (the Tenant’s consent thereto, “Memorandum”) to be executed by giving Lessee and Lessor and recorded in the Tenant written notice thereof, real estate records in the county in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before Tax-Exempt Facilities are located at Lessee’s expense within five (5) days following the execution of this Facilities Lease. The Memorandum will contain the following provisions: “Lessee agrees that upon expiration or any proper termination of the Facilities Lease, it will release this Memorandum (and the Facilities Lease) of record, and further agrees that if such Mortgageswritten termination or release is not filed of record with thirty (30) days after such expiration or termination, then Lessor is hereby authorized to execute on behalf, and in the name, of Lessee any such release and record the same in the public records at Lessee’s expense. IfThis power in favor of Lessor is coupled with an interest and is not revocable by Lessee.”
18.3. Should Lessor sell, convey or transfer its interest in connection with obtaining financing for the BuildingTax-Exempt Facilities, a Mortgagee then such party shall request reasonable modifications in this Lease be substituted herein as a condition Lessor and Lessee shall attorn to such financing, Tenant will not unreasonably withhold, delay or defer succeeding party as its consent theretoLessor under this Facilities Lease promptly upon any such succession, provided that such modifications do succeeding party assumes all of Lessor’s duties and obligations under this Facilities Lease and agrees not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the to disturb Lessee’s leasehold interest hereby created hereunder in accordance with this Section 18.3 as long as an Event of Default has not occurred and is not continuing beyond any grace or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable cure period hereunder.
Appears in 1 contract
Sources: Lease and Development Agreement (Fortress Transportation & Infrastructure Investors LLC)
Subordination and Attornment. 33.01 This Lease is subject and subordinate to each and every ground, overriding or underlying lease of the liens of all mortgagesLand, deeds of the Unit or the Building heretofore or hereafter made by Landlord, including, without limitation the Ground Lease (collectively the “Superior Leases”) and to each and every trust indenture and mortgage, including, without limitation, leasehold mortgages whether such trust indenture, mortgage or leasehold mortgage shall cover other security instruments lands or buildings or leases (collectively the “Mortgages”) which may now or hereafter placed upon affect all or any part of the Land, the Unit, the Building or any such Superior Lease and the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s leasehold interest is derived (said mortgagescreated thereto, deeds of trust, other security instrumentssubstitutions therefor, and ground leases being hereinafter advances made thereunder. This Article 33 shall be self-operative and no further instrument of subordination need be delivered for the subordination described herein to be effective. However, Tenant shall execute promptly any certificate that Landlord, the lessor under any such Superior Lease or the holder of any such Mortgage may request and Tenant hereby irrevocably constitutes and appoints Landlord as Tenant’s attorney-in-fact, coupled with an interest, to execute any such certificate(s) for and on behalf of Tenant if Tenant shall fail to do so within five (5) days after request from Landlord. The lessor of a Superior Lease or its successor-in-interest at the time referred to as is sometimes hereinafter called a “Mortgages” Superior Lessor”, and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from holder of a Mortgage or its successor-in-interest at the time referred to time being is sometimes hereinafter called a “MortgageesMortgagee”), . A Mortgagee may elect that this Lease shall have priority over its Mortgage and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act upon notification of the Tenant except as expressly provided herein; providedby such party, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to have priority over such Mortgage, regardless of the date of this Lease.
33.02 In the event of any act or omission of Landlord which would give Tenant the right, immediately or after the lapse of a period of time, to cancel or terminate this Lease, or to claim a partial or total eviction, Tenant shall not exercise such right (a) until it has given written notice of such act or omission to each Mortgagee and Superior Lessor whose name and address shall previously have been furnished to Tenant in writing, and (b) until a reasonable period for remedying such act or omission shall have elapsed following the giving of such notice and following the time when such Mortgagee and Superior Lessor shall have become entitled under its Mortgage or Superior Lease to remedy the same (which reasonable period shall in no event be senior less than the period to which Landlord would be entitled under this Lease or otherwise, after similar notice to effect such Mortgages without regard remedy).
33.03 If, at any time prior to the respective dates termination of execution and/or recordation this Lease, any Superior Lessor or Mortgagee or any person, or any Superior Lessor’s or Mortgagee’s or such person’s successors or assigns (Superior Lessor, Mortgagee and any such person, successor or assign being herein collectively referred to as “Successor Landlord”) shall succeed to the rights of such Mortgages and Landlord under this Lease through possession or foreclosure action or delivery of a new lease or a deed or otherwise, Tenant agrees, subject to the terms of any existing non-disturbance and thereafter attornment agreement, at the election and upon request of any such Mortgagee Successor Landlord, from time to time, to fully and completely attorn to and recognize any such Successor Landlord, as Tenant’s landlord under this Lease upon the then executory terms of this Lease; provided such Successor Landlord shall have agree in writing to accept Tenant’s attornment. The foregoing provisions of this Section shall inure to the same rights benefit of any such Successor Landlord, shall apply notwithstanding that, as a matter of law, this Lease may terminate upon the termination of a Superior Lease or foreclosure of a Mortgage and shall be self-operative upon any such demand; and no further instrument shall be required to give effect to said provisions. Tenant, however, upon demand of any such Successor Landlord, shall execute, from time to time, instruments to evidence and confirm the foregoing provisions of this Section (including, if Successor Landlord shall so request, a new lease on terms identical to this Lease as it would have had were this Lease executed Lease), satisfactory to any such Successor Landlord, acknowledging such attornment and delivered before setting forth the execution terms and conditions of its tenancy and Tenant hereby constitutes and appoints Successor Landlord attorney-in-fact for Tenant to execute any such Mortgages. Ifinstrument for and on behalf of Tenant, in connection such appointment being coupled with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunder.an
Appears in 1 contract
Sources: Lease Agreement
Subordination and Attornment. (a) This Lease is subject and subordinate to the liens lien of any mortgage, deed of trust, ground lease or similar encumbrance (each a “Mortgage” and each holder thereof a “Mortgagee”), and all mortgagesrenewals, deeds modifications, consolidations, replacements or extensions of trust and other security instruments any such Mortgage, now or hereafter placed upon the Building or the Building Project or any portion thereof made and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to encumbering the Premises or any and all renewals, extensions, modifications, or refinancings thereof, without any further act portion of the Tenant except as expressly provided herein; providedProperty, however, a condition precedent whether executed and delivered prior to the subordination of this Lease or subsequent to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease Lease, unless the Mortgagee shall elect otherwise; provided that Tenant’s use and occupancy of the Premises shall not be disturbed so long as Tenant is not in default beyond any applicable notice and cure periods under this Lease. The provisions of this subsection are self-operative and require no further instruments to give effect hereto; provided, that Tenant shall from time to time, within 20 days after Landlord’s request, execute and deliver any renewals, extensions, modifications, consolidations and replacements thereof, is documents or instruments that Landlord shall obtain for the benefit of Tenant a commercially reasonable may be reasonably required by any Mortgagee to effectuate any subordination, . A non-disturbance agreement in form mutually agreeable to Tenant and attornment such current Mortgagee shall be entered into prior to the Commencement Date. The lender’s expense for any commercially reasonable changes to the lender’s form non-disturbance agreement (“SNDA”) from the lessor or lender under such Mortgage. If and/or estoppel certificate requested by Tenant shall be paid by Landlord.
(b) If a Mortgagee or any other Person succeeds to the rights of Landlord under this Lease, howeverwhether through possession or foreclosure action or the delivery of a new lease or deed, then at the request of the successor landlord and upon such successor landlord’s written agreement to accept Tenant’s attornment and to recognize Tenant’s interest under this Lease, Tenant shall be deemed to have attorned to and recognized such successor landlord as Landlord under this Lease. The provisions of this subsection are self-operative and require no further instruments to give effect hereto; provided, that Tenant shall promptly execute and deliver any certificate instrument that such successor landlord may reasonably request (i) evidencing such attornment, (ii) setting forth the terms and conditions of Tenant’s tenancy and (iii) containing such other terms and conditions as may be required by such Mortgagee, provided such terms and conditions do not increase the Rent, materially and adversely increase Tenant’s obligations or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, affect Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord ’s rights under this Lease. Upon such attornment this Lease shall continue in full force and effect as a direct lease between such successor landlord and Tenant upon all of the terms, conditions and make all payments required hereunder covenants set forth in this Lease except that such successor landlord shall not be: (A) liable for any act or omission of Landlord; (B) subject to such new landlord without any deduction or defense, claim, counterclaim, set-off of any kind whatsoever or offsets which Tenant may have against Landlord (except as provided in Section 3.4); (C) bound by any prepayment of more than one month’s Rent to any prior landlord; (D) bound by any obligation to make any payment to Tenant which was required to be made prior to the time such SNDAsuccessor landlord succeeded to Landlord’s interest (other than the Tenant Allowance). Tenant waives the provisions of ; (E) bound by any law or regulation, now or hereafter in effect, which may give, or purport obligation to give, Tenant perform any right to terminate this Lease work or to alter make improvements to the obligations of Tenant hereunder in the event that any such foreclosure or termination or Premises (other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from than Landlord’s lender Work); (F) bound by any modification, amendment or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect renewal of this Lease made without obtaining successor landlord’s consent; (G) liable for the Tenant’s consent theretorepayment of any security deposit or surrender of any letter of credit, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior unless and until such security deposit actually is paid or such letter of credit is actually delivered to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereundersuccessor landlord.
Appears in 1 contract
Subordination and Attornment. This Tenant agrees that this Lease is may, at the option of Landlord, be subject and subordinate to the liens any mortgage, deed of all mortgagestrust, deeds any other Instrument of trust and other security instruments security, or ground lease which is now or hereafter placed on the Premises, provided that, with respect to any such instrument over which this Lease would otherwise have priority, such subordination is conditioned upon the Building mortgagee, beneficiary, other secured party or the Building Project ground lessor executing and delivering a Non-Disturbance Agreement In a form reasonably required by such mortgagee, beneficiary or any portion thereof and other party recognizing all ground and other underlying leases from which rights of Tenant hereunder. Subject to Landlord’s interest providing an executed Non-Disturbance Agreement, in reasonably acceptable form, the foregoing subordination described herein is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, hereby made effective without any further act of Tenant. In addition, following the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination mutual execution and delivery of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall make commercially reasonable efforts to obtain a Non-Disturbance Agreement for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor beneficiary under any mortgage, deed of trust, any other instrument of security, or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordinationground lease encumbering the Building as of the date of this Lease. Tenant agrees thatshall, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate hereafter, on demand, execute any instruments, releases, or other documents that may be required by any mortgagee, mortgagor, or trustor or beneficiary under any security instrument for the purpose of subjecting and subordinating this Lease to the lien of its Mortgages such instrument and Tenant shall agree to reasonable modifications to the operation and effect form of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights Non-Disturbance Agreement so long as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or diminish Tenant’s use and enjoyment rights under this Lease. Tenant shall attorn to any third party purchasing or otherwise acquiring the Premises at any sale or other proceeding or pursuant to the exercise of any rights, powers or remedies under any instruments of security or ground leases now or hereafter encumbering all or any part of the Premises, as if such third party had been named as Landlord under this Lease. Tenant may encumber or increase finance its moveable fixtures and equipment installed on the amount Premises and its inventory, and no such encumbrance or financing shall be deemed an assignment by Tenant hereunder. In connection with any such encumbrance or financing, Landlord agrees to execute and deliver an owner’s waiver and consent thereto In a form reasonably acceptable to Landlord and Tenant’s tender, provided Tenant is not In default of Annual Basic Rent and Additional Rent payable its obligations hereunder.
Appears in 1 contract
Sources: Sublease Agreement (Celladon Corp)
Subordination and Attornment. This 14.01 Subject to the provisions of Paragraph 14.02 below, this Lease and all rights of Tenant under this Lease shall be subject and subordinate at all times to the lien of any mortgage made a lien on the demised premises in connection with the purchase thereof by Landlord ("Purchase Money Mortgage") or hereafter a lien upon the demised premises and to all amendments, extensions, renewals, consolidations, and replacements thereof, subject to Tenant's receipt of a non-disturbance agreement as set forth in Paragraph 14.02. Although no instrument or act on the part of the Tenant shall be necessary to effectuate such subordination, the Tenant will, nevertheless, execute and deliver such further instruments subordinating this Lease to the lien of any such mortgage within ten (10) business days from Landlord's request therefor. Tenant shall attorn to such mortgagee in the event mortgagee shall succeed to the interest of Landlord by reason of a foreclosure or delivery of a deed in lieu of foreclosure or otherwise.
14.02 Tenant, in connection with Landlord's obtaining the Purchase Money Mortgage or any mortgage to become a lien on the demised premises hereafter, agrees to enter into an agreement in recordable form with any such mortgagee, which agreement Tenant agrees to execute, within seven (7) business days after receipt thereof, which shall provide, in substance:
(A) That this Lease is subject and subordinate to the liens of all mortgages, deeds of trust and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), such mortgage and to any and all renewalsamendments, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof.
(B) That so long as Tenant shall not be in default, is that Landlord subject to the giving of notice if required and the expiration of the applicable grace period, if any, of its obligations under this Lease:
(i) Such mortgagee shall obtain for recognize this Lease and the benefit rights of Tenant hereunder and shall not disaffirm this Lease even if mortgagee shall foreclose the mortgage or the demised premises shall be sold pursuant to a commercially reasonable foreclosure sale or shall take a deed in lieu of such foreclosure sale;
(ii) Tenant shall be entitled to use and occupy the demised premises in accordance with the provisions of this Lease and no provisions of such mortgage shall supersede or make void the provisions of this Lease including the provisions as to the applicability of insurance proceeds in the event of a casualty; and
(iii) Tenant's possession of the demised premises shall not be disturbed by any such mortgagee, its successors or assigns.
(C) That this Lease shall not be terminable by Tenant by reason of foreclosure under any fee mortgage by legal proceedings, or otherwise, and in the event that by reason of default on the part of Landlord therein, a mortgagee shall enter into and become possessed of the Property and/or the entire demised premises either through possession or foreclosure proceedings, then Tenant shall hereby be deemed to, without further instruments of attornment in such case, attorn to such mortgagee and shall recognize such mortgagee as its Landlord, and Tenant waives the provisions of any statute or rule of law now or hereafter in effect which may give or purport to give Tenant any right of election to terminate this Lease or to surrender possession of the demised premises in the event the Landlord's interest in the Lease is terminated. Although no instrument or act on the part of Tenant shall be necessary to effectuate such subordination, Tenant agrees to execute, upon the request of such mortgagee, an agreement of subordination non-disturbance and attornment in form reasonably satisfactory to Tenant and such mortgagee.
14.03 The above subordination with respect to any Purchase Money Mortgage or any future fee mortgages (including renewals, modifications, replacements and extensions thereof) shall not be operative unless Tenant receives an executed and delivered subordination, non-disturbance and attornment agreement (“SNDA”) as set forth in paragraph 14.02 from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereundersaid mortgagees.
Appears in 1 contract
Sources: Lease Agreement (Trans Lux Corp)
Subordination and Attornment. This (a) Provided Landlord obtains for the benefit of Tenant from Landlord's mortgagee or ground lessor such mortgagee's or ground lessor's standard nondisturbance agreement reasonably acceptable to Tenant, this Lease is and shall remain subject and subordinate to the liens lien of any and all current and future first mortgages and/or any ground leases (which term "mortgages, " shall include both construction and permanent financing and shall include deeds of trust and other similar security instruments instruments) which may now or hereafter placed upon encumber the Building Complex or the Building Project or any portion thereof and all ground and other underlying leases from land on which Landlord’s interest the Complex is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”)located, and to any all and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations consolidations, recastings or refinancings thereof. At any time after the execution of this Lease, the holder of any mortgage to which this Lease is subordinate shall have the right to declare this Lease to be superior to the lien of such mortgage, and replacements Tenant agrees to execute all documents required by such holder in confirmation thereof, is .
(b) In the event that Landlord shall obtain for the benefit Tenant should fail to execute any instrument of nondisturbance and subordination herein required to be executed by Tenant a commercially reasonable subordination, non-disturbance and attornment agreement within fifteen (“SNDA”15) from the lessor or lender under such Mortgage. If requested by days of Landlord, however's demand, Tenant shall promptly hereby irrevocably constitutes Landlord as its attorney-in-fact to execute any certificate or other document confirming such subordination. Tenant agrees thatinstrument in Tenant's name, if place and stead, it being agreed that such power is one coupled with an interest.
(c) In the event any proceedings are brought for the foreclosure of any mortgage encumbering the Complex or the termination of any ground lease affecting the MortgagesComplex, TenantTenant shall attorn to the purchaser at such foreclosure sale or any ground lessor, as the case may be, if requested to do so by the purchaser at the foreclosure sale such party, and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser such party as the landlord Landlord, under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law statute or regulationrule of law, now or hereafter in effect, which may give, give or purport to give, give Tenant any right to terminate or otherwise adversely affect this Lease or to alter and the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. .
(d) Landlord shall use commercially reasonable efforts represents and warrants to provide Tenant with an SNDA from that Landlord owns the current holder Complex in fee simple and as of any Mortgages upon request the date of the execution and delivery of this Lease, the Complex is not encumbered by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees a ground lease or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect any mortgage or deed of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereundertrust.
Appears in 1 contract
Sources: Lease Agreement (Advanced Switching Communications Inc)
Subordination and Attornment. 30.1 This Lease is subject and Lease, at Landlord’s option, shall be subordinate to the liens any present or future mortgage, ground lease or, subject to Section 3.3, declaration of all mortgages, deeds covenants regarding maintenance and use of trust and other security instruments now or hereafter placed upon the Building or the Building Project or any areas contained in any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”)Building, and to any and all advances made under any present or future mortgage and to all renewals, extensions, modifications, consolidations, replacements, and extensions of any or refinancings thereofall of same. Tenant agrees, without with respect to any further act of the Tenant except as expressly provided herein; providedforegoing documents, howeverthat no documentation other than this Lease shall be required to evidence such subordination. If any holder of a mortgage (each, a condition precedent “Mortgagee”) shall elect for this Lease to be superior to the lien of its mortgage and shall give written notice thereof to Tenant, then this Lease shall automatically be deemed prior to such mortgage whether this Lease is dated earlier or later than the date of said mortgage or the date of recording thereof. Within fifteen (15) days after delivery to Tenant of written request therefor by Landlord, Tenant agrees to execute such commercially reasonable documents as may be further required to evidence such subordination or to make this Lease prior to the lien of any mortgage or deed of trust, as the case may be, and by failing to do so within five (5) business days after a second written demand, shall be an Event of Default. Tenant hereby attorns to all successor owners of the Building, whether or not such ownership is acquired as a result of a sale through foreclosure or otherwise.
30.2 Landlord’s interest herein may be assigned as security at any time to any Mortgagee. Notwithstanding the foregoing or anything to the contrary herein, no Mortgagee succeeding to the interest of Landlord hereunder shall be (i) liable in any way to Tenant for any act or omission, neglect or default on the part of Landlord under this Lease, unless (x) such default under the Lease continues uncured after the date Mortgagee succeeds to the interest of Landlord under the Lease and such default is reasonably susceptible of cure by Mortgagee, in which case Mortgagee shall be obligated to cure such default, and/or (y) such act or omission or neglect causing damage or loss to Tenant constitutes a default under the Lease, continues uncured after the date Mortgagee succeeds to the interest of Landlord under the Lease and such default is reasonably susceptible of cure by Mortgagee, in which case Mortgagee shall be obligated to cure such default, (ii) responsible for any monies owing by or on deposit with Landlord to the credit of Tenant (except to the extent any such deposit is actually received by or credited to such Mortgagee), (iii) subject to any counterclaim or setoff which theretofore accrued to Tenant against Landlord, (iv) bound by any amendment or modification of this Lease subsequent to such mortgage (except those (x) made solely for purposes of documenting the exercise of rights expressly set forth in this Lease, or (y) that Landlord is entitled to enter into without the consent of Mortgagee pursuant to the terms of the Mortgage or any other loan documents, or (2) termination or surrender of the Lease made without the written consent of Lender, except any termination or surrender of the Lease by Tenant made or effected pursuant to the express terms of the Lease, or by any previous prepayment of Rent for more than one (1) month, which was not approved in writing by the Mortgagee, (v) liable beyond such Mortgagee’s interest in the Project, or (vi) responsible for the payment or performance of any work to be done by Landlord under this Lease to render the Premises ready for occupancy by Tenant or for the payment of any tenant improvement allowances. Nothing in clause (i), above, shall be deemed to relieve any Mortgagee succeeding to the interest of Landlord hereunder of its obligation to comply with the obligations of Landlord under this Lease from and after the date of such succession.
30.3 No Mortgagee shall, either by virtue of the mortgage or any assignment of leases executed by Landlord for the benefit of such Mortgagee, be or become a mortgagee in possession or be or become subject to any particular future Mortgage first liability or obligation under the Lease or otherwise until such Mortgagee shall have acquired the interest of Landlord in the Project, by foreclosure or otherwise, or in fact have taken possession of the Project as a mortgagee in possession and then such liability or obligation of Mortgagee under the Lease shall extend only to those liability or obligations accruing subsequent to the date that such Mortgagee has acquired the interest of Landlord in the Premises, or in fact taken possession of the Project as a mortgagee in possession.
30.4 Tenant shall, at such time or times as Landlord may request, upon not less than fifteen (15) days’ prior written request by Landlord, sign and deliver to Landlord an estoppel certificate, which shall be substantially in the form of Exhibit E, attached hereto (or such other commercially reasonable form as may be required by any prospective mortgagee or purchaser of the Project, or any portion thereof), indicating therein any exceptions thereto that may exist at that time, and shall also contain such other information and agreements as may be reasonably requested, it being intended that any such statement delivered pursuant to this Article may be relied upon by Landlord and by any prospective purchaser of all or any portion of the Project, or a holder or prospective holder of any mortgage encumbering the Project, or any portion thereof. Notwithstanding anything to the contrary in Section 22.1(b) above, Tenant’s failure to deliver such statement within five (5) business days after Landlord’s second written request therefor shall, if Landlord so elects, constitute an Event of Default (as that term is defined elsewhere in this Lease) and shall conclusively be deemed to be an admission by Tenant of the matters set forth in the request for an estoppel certificate.
30.5 Tenant shall deliver to Landlord prior to the execution of this Lease and thereafter at any time upon Landlord’s request, Tenant’s current audited financial statements, including a balance sheet and profit and loss statement for the most recent prior year (collectively, the “Statements”), which Statements shall accurately and completely reflect the financial condition of Tenant as of the date of the applicable Financial Statements. If audited financial statements are not then available, Tenant may instead provide unaudited financial statements certified by an officer, member, manager, partner or other authorized representative of Tenant as accurately and completely reflecting the financial condition of Tenant. Landlord agrees not to request copies of financial statements more often than once in every twelve-month period, unless required in connection with a proposed sale or financing. Landlord shall have the right to deliver the same to any proposed purchaser of the Building or the Project following Project, and to any encumbrancer of all or any portion of the Building or the Project, but Landlord shall require that such proposed purchaser or encumbrancer, as the case may be, that receives such Statement(s) keep the same in strict confidence except to the extent required by law or court order to disclose any information in such Statements. Tenant’s obligation to deliver such Statements to Landlord shall not apply if Tenant’s is a publicly traded company.
30.6 Tenant acknowledges that Landlord is relying on the Statements in its determination to enter into this Lease, and Tenant represents to Landlord, which representation shall be deemed made on the date of this Lease Lease, that no material change in the financial condition of Tenant, as reflected in the Statements, has occurred since the date Tenant delivered the Statements to Landlord. The Statements are represented and warranted by Tenant to be correct and to any renewals, extensions, modifications, consolidations accurately and replacements thereof, is that Landlord shall obtain for fully reflect Tenant’s true financial condition as of the benefit date of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure submission of any of the Mortgages, Tenant, if requested Statements to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunder.
Appears in 1 contract
Subordination and Attornment. This (a) Subject to (and conditioned upon) Landlord’s delivery of an NDA (hereinafter defined) to Tenant with respect to any Mortgage (hereinafter defined) currently encumbering the Project, this Lease is subject and subordinate to the liens of all mortgages, mortgages or deeds of trust and other security instruments now or hereafter placed upon the Building or interest of Landlord and/or Ground Lessor in the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as a “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “MortgageesMortgage”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, that the holder of any Mortgage (a condition precedent “Mortgagee”), so long as no Default is continuing, shall agree not to disturb Tenant in its use and possession of the subordination Project or its rights under this Lease. If any foreclosure or power of sale proceedings are initiated by any Mortgagee or a deed in lieu is granted, Tenant agrees to attorn and pay rent to such Mortgagee or any purchaser at such foreclosure sale and to execute and deliver any instruments necessary or appropriate to evidence or effectuate such attornment. In the event of attornment, no Mortgagee shall be: (a) liable for any act or omission of Landlord, or subject to any offsets or defenses that Tenant might have against Landlord (prior to such Mortgagee becoming Landlord under such attornment), (b) liable for any security deposit or bound by any rent that has been prepaid for more than thirty (30) days in advance of the date it is due and not actually received by such lender, or (c) bound by any modification of this Lease made after notice of such Mortgagee’s Mortgage was provided to Tenant unless such modification is consented to by such Mortgagee. Any Mortgagee may elect to make this Lease prior to the lien of its Mortgage, and if the Mortgagee under any prior Mortgage shall require, this Lease shall be prior to any particular future Mortgage first encumbering the Building or the Project following the date such mortgage; such elections shall be effective upon notice to Tenant. The provisions of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord Section shall obtain for the benefit of Tenant a commercially reasonable subordination, nonbe self-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, operative; however, Tenant shall promptly execute such documentation as Landlord or any certificate or other document confirming such subordination. Tenant agrees thatlender may reasonably request from time to time in order to confirm the matters set forth in this Section, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously is provided with an SNDA executed a NDA in a form reasonably approved by Tenant from any such Mortgagee. To the holder of the Mortgageextent not expressly prohibited by Law, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, Law now or hereafter in effect, which adopted that may give, give or purport to give, give Tenant any right or election to terminate or otherwise adversely affect this Lease or to alter the Tenant’s obligations of Tenant hereunder in the event that any if such foreclosure or termination or other proceeding is power of sale proceedings are initiated, prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of .
(b) Notwithstanding any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything provision contained herein to the contrary, on or before August 22, 2013, Landlord shall deliver to Tenant a non-disturbance agreement (“NDA”) in form reasonably acceptable to Tenant, from any Mortgagee may at any time subordinate providing Landlord’s construction financing, wherein such parties shall agree that in the lien event of its Mortgages to a default by Landlord or a foreclosure or other action taken by such Mortgagee or the operation and effect of this Lease without obtaining the Tenant’s consent theretoGround Lessor, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use hereunder shall not be disturbed but shall continue in full force and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereundereffect so long as no uncured Default exists.
Appears in 1 contract
Sources: Lease Agreement (Amsurg Corp)
Subordination and Attornment. This Lease is subject and subordinate (a) Tenant acknowledges that prior to the liens of all mortgagesdate hereof, deeds of trust Landlord has provided Tenant with the standard form non-disturbance and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which attornment agreement presently used by Landlord’s interest is derived (said mortgagesexisting Mortgagee. Within 60 days after Landlord’s receipt of Tenant’s comments to such standard form, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement from Landlord’s existing Mortgagee, in such standard form (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDAform is commercially reasonable). Tenant waives the provisions of any law or regulationIn addition, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts (but without being obligated to provide commence any legal or arbitration proceeding and without the expenditure of unreimbursed sums (other than reasonable expenses that a landlord normally incurs in attempting to obtain a subordination, non-disturbance and attornment agreement for its tenant, such as Landlord’s attorneys’ fees)) to obtain for Tenant with an SNDA a subordination, non-disturbance and attornment agreement from all future Mortgagees and Lessors, in the current holder standard form customarily employed by such Mortgagee and/or Lessor (provided that such form is commercially reasonable). Upon Landlord’s satisfaction of the foregoing, which shall include the Mortgagee or Lessor, as applicable, agreeing to recognize and be bound by the terms of this Lease (as herein set forth) upon a foreclosure or deed-in-lieu thereof or termination of any such ground lease, this Lease shall be subject and subordinate to all Mortgages and Superior Leases, and, at the request of any Mortgagee or Lessor, Tenant shall attorn to such Mortgagee or Lessor, its successors in interest or any purchaser in a foreclosure sale.
(b) Subject to the provisions of Section 9.l(a), if a Lessor or Mortgagee or any other person or entity shall succeed to the rights of Landlord under this Lease, whether through possession or foreclosure action or the delivery of a new lease or deed, then at the request of the successor landlord and upon such successor landlord’s written agreement to accept Tenant’s attornment and to recognize Tenant’s interest under this Lease, Tenant shall be deemed to have attorned to and recognized such successor landlord as Landlord under this Lease. The provisions of this Section 9.1 are self-operative and require no further instruments to give effect hereto; provided, however, that Tenant shall promptly execute and deliver any instrument that such successor landlord may reasonably request (i) evidencing such attornment, (ii) setting forth the terms and conditions of Tenant’s tenancy, and (iii) containing such other terms and conditions as may be required by Tenantsuch Mortgagee or Lessor, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDAterms and conditions do not increase the Rent, including but not limited to any fees materially increase Tenant’s obligations or charges from Landlordmaterially and adversely affect Tenant’s lender or such lender’s counsel; rights under this Lease, and (ii) neither Tenant shall have no obligation to execute such instrument until Landlord delivers the subordination, non-disturbance and attornment agreement described in and in accordance with Section 9.1(a). Upon such attornment this Lease nor shall continue in full force and effect as a direct lease between such successor landlord and Tenant upon all of the obligations terms, conditions and covenants set forth in this Lease except that such successor landlord shall not be:
(i) liable for any act or omission of either party hereunder shall be conditional upon Landlord (except to the obtaining extent such act or omission continues beyond the date when such successor landlord succeeds to Landlord’s interest and Tenant gives notice of such SNDA. Notwithstanding anything contained herein act or omission);
(ii) subject to any defense, claim, counterclaim, set-off or offsets which Tenant may have against Landlord;
(iii) bound by any prepayment of more than one month’s Rent to any prior landlord;
(iv) bound by any obligation to make any payment to Tenant which was required to be made prior to the contrary, time such successor landlord succeeded to Landlord’s interest;
(v) bound by any Mortgagee may at obligation to perform any time subordinate the lien of its Mortgages work or to make improvements to the operation Premises except for (x) repairs and effect maintenance required to be made by Landlord under this Lease, and (y) repairs to the Premises as a result of damage by fire or other casualty or a partial condemnation pursuant to the provisions of this Lease, but only to the extent that such repairs can reasonably be made from the net proceeds of any insurance or condemnation awards, respectively, actually made available to such successor landlord;
(vi) bound by any modification, amendment, or renewal of this Lease made without obtaining successor landlord’s consent;
(vii) bound by any provisions of the Tenant’s consent theretoLease with respect to the Existing Furnishings;
(viii) liable for the repayment of any security deposit or surrender of any letter of credit, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior unless and until such security deposit actually is paid or such letter of credit is actually delivered to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing successor landlord; or
(ix) liable for the Buildingpayment of any unfunded tenant improvement allowance, a refurbishment allowance or similar obligation.
(c) Tenant shall from time to time within 15 days of request from Landlord, but not more frequently than 3 times in any 12 month period, execute and deliver any documents or instruments that may be reasonably required by any Mortgagee shall request reasonable modifications in this Lease as a condition or Lessor to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderconfirm any subordination.
Appears in 1 contract
Sources: Sublease (K12 Inc)
Subordination and Attornment. This Lease is subject and subordinate to the liens of all mortgages, deeds of trust and other security instruments now or hereafter placed upon the Building or the Building Project Property or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such MortgageTenant. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgagesale, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA)whatsoever. Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunder.
Appears in 1 contract
Sources: Office Lease (Marpai, Inc.)
Subordination and Attornment. This Lease is subject and all of Tenant’s rights hereunder shall be subordinate to any ground lease or underlying lease, and the liens lien of all mortgagesany mortgage, deeds deed of trust and trust, or any other security instruments instrument now or hereafter placed upon affecting or encumbering the Building or the Building Project Building, or any portion part thereof and all ground and other underlying leases from which Landlord’s or interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”)therein, and to any and all advances made on the security thereof or Landlord’s interest therein, and to all renewals, extensions, modifications, or refinancings thereofconsolidations, without any further act replacements and extensions thereof (an “encumbrance”, the holder of the Tenant except beneficial interest thereunder being referred to as expressly provided herein; providedan “encumbrancer”). An encumbrancer may, however, subordinate its encumbrance to this Lease, and if an encumbrancer so elects by notice to Tenant, this Lease shall be deemed prior to such encumbrance. If any encumbrance to which this Lease is subordinate is foreclosed, or a condition precedent deed in lieu of foreclosure is given to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, howeverencumbrancer thereunder, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested attorn to do so by the purchaser at the foreclosure sale or to the grantee under the deed in lieu of foreclosure; and provided that if any encumbrance consisting of a ground lease or underlying lease to which this Lease is subordinate is terminated, Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaserlessor thereof. Tenant shall execute, recognize acknowledge and deliver in a commercially reasonable form as requested by Landlord or any encumbrancer, any documents required to evidence or effectuate the purchaser as subordination hereunder, or to make this Lease prior to the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off lien of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may giveencumbrance, or purport to give, Tenant evidence such attornment provided that such documents shall include any right encumbrancer’s agreement to terminate this Lease or nondisturbance provisions substantially similar to alter the obligations of Tenant hereunder those contained in the event that any such foreclosure or termination or other proceeding is prosecuted or completedSection 21.2 below. Landlord and Tenant shall mutually use commercially reasonable efforts to provide Tenant with an SNDA obtain from the current holder of any Mortgages upon request by Tenantexisting encumbrance on the Project, provided that within thirty (i30) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect days after full execution of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the BuildingLease, a Mortgagee shall request reasonable modifications subordination and nondisturbance agreement in this Lease as a condition form reasonably acceptable to such financingLandlord, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that and such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderencumbrancer.
Appears in 1 contract
Sources: Office Lease (Mobitv Inc)
Subordination and Attornment. This (a) Tenant accepts this Lease is subject and subordinate to the liens of all mortgagesany mortgage, deeds deed of trust and or other security instruments now lien presently existing or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any renewals and all renewalsextensions thereof; but Tenant agrees that any mortgagee and/or beneficiary of any such deed of trust or other lien ("Landlord's Mortgagee") and/or Landlord shall have the right (but shall not be obligated) at any time to subordinate such mortgage, extensions, modifications, deed of trust or refinancings thereof, without any further act of the Tenant except other lien to this Lease on such terms and subject to such conditions as expressly provided herein; provided, however, a condition precedent to the subordination Landlords Mortgagee may deem appropriate in its discretion. Within thirty (30) days following Tenant's execution of this Lease Lease, Tenant agrees to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease promptly execute and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant deliver a commercially reasonable subordination, non-disturbance and attornment agreement (“"SNDA”"), substantially in the forms attached hereto as Exhibit "D", subordinating this Lease, as Landlords Mortgagee shall request, Landlord shall deliver to Tenant the fully-executed SNDA within sixty (60) from days after Landlord receives Tenant's executed counterpart copy of the lessor SNDA.
(b) If a mortgagee or lender under other lienholder or any other purchaser acquires the Building or Project as a purchaser at a foreclosure sale (any such Mortgage. If requested by Landlordmortgagee or other lienholder or purchaser at a foreclosure sale being each hereinafter referred to as the "Purchaser at Foreclosure"), however, then Tenant shall promptly (at the sole and absolute election of the Purchaser at Foreclosure) thereafter remain bound to the terms of this Lease to the same effect as if a new and identical lease between the Purchaser at Foreclosure, as Landlord and Tenant, as Tenant, had been entered into for the remainder of the Term of the Lease in effect at the time of the foreclosure. Tenant shall, on request, execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any instrument necessary or desirable further to confirm a Purchaser at Foreclosures election to continue (or discontinue) of the MortgagesLease in effect alter foreclosure, Tenantas above provided. If the Purchaser at Foreclosure elects to continue this Lease within ninety (90) days after such foreclosure, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn and pay vent to the purchaser, recognize the purchaser Purchaser at Foreclosure as the landlord under if that party were a signatory to this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever Agreement as "Landlord".
(except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in c) In the event that Tenant shall fail to execute any instrument described in (a) or (b) above within seven (7) days as requested. Tenant hereby irrevocably constitutes Landlord as Tenant's attorney-in-fact to execute such foreclosure or termination or other proceeding instrument in Tenant's name, place and stead, it being stipulated by Landlord and Tenant That such agency is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant coupled with an SNDA from the current holder of any Mortgages upon request by Tenantinterest in Landlord and is, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDAaccordingly, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderirrevocable.
Appears in 1 contract
Subordination and Attornment. 22.1 This Lease is shall become subject and subordinate to the liens of all mortgagesany existing or future mortgage, deeds deed of trust and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and (including all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”advances made thereunder), and to any and all amendments, renewals, extensionsreplacements, or restatements thereof (or other monetary encumbrance or ground lease) (hereinafter collectively “Mortgage”) of the Premises or all or any portion of or interest in the Real Property and any renewals, modifications, replacements or refinancings extensions thereof, without any further act of the Tenant except as expressly provided herein; provided, however, only if and when a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (on such Mortgagee’s then-current standard form that is commercially reasonable in content and structure including complete protection of Tenant’s rights and benefits similar to Exhibit I, terms that do not materially increase Tenant’s costs or risk under the Lease and does not impose non-typical increased administrative duties on Tenant under the Lease [such as additional notifications beyond those contemplated under Exhibit I] with such revisions as Mortgagee and Tenant may mutually agree (each, a “SNDA”) from the lessor or lender under is entered into in respect of such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed Mortgage by the holder thereof (hereinafter the “Mortgagee”) stating whether or not Tenant is then in possession and providing that: (a) so long as Tenant is not in default after the expiration of any applicable notice and grace period, the Term of this Lease shall not be terminated or modified in any respect whatsoever except in accordance with the express provisions hereof nor shall the rights or remedies of Tenant hereunder (except as qualified in the SNDA) or its use or occupancy of the MortgageReal Property or the Common Area be disturbed or interfered with or otherwise affected in any manner by said Mortgagee; (b) all condemnation awards and proceeds of insurance shall be applied in the manner provided in this Lease; (c) such Mortgagee shall not name or join Tenant as a party defendant or otherwise in any suit, shall attorn action or proceeding to the purchaser, recognize the purchaser as the landlord under enforce this Lease, and make all payments required hereunder to such new landlord without any deduction unless Tenant is an indispensable party thereto under Applicable Law or set-off is then in default under this Lease after the giving of any kind whatsoever required notice and expiration of any applicable grace period, nor will this Lease or the Term hereof be terminated (except as provided in such SNDA). Tenant waives permitted by the provisions of this Lease) or otherwise affected by foreclosure or enforcement of, any rights given to any Mortgagee pursuant to the terms, covenants or conditions contained therein or in any other documents held by such Mortgagee or otherwise given to such Mortgagee as a matter of law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall equity; and (d) said Mortgagee will use commercially reasonable efforts to provide give Tenant notice of any default by Landlord under such Mortgage concurrently with an any notice given to Landlord thereunder. Such SNDA shall be set forth either in the SNDA referred to in Exhibit I or in a separate document in recordable form between Tenant and the Mortgagee and shall be binding upon any future Mortgagee or purchaser at any trustee’s or foreclosure sale. If any portion of the Premises are now subject to a lien of any Mortgage or similar instrument recorded ahead of this Lease, Landlord covenants and agrees to obtain from the current holder of any Mortgages upon request by Tenant, provided that (i) such Mortgage and deliver to Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease aforesaid agreement as a condition to the Effective Date.
22.2 The parties may request additional commercially reasonable terms and conditions in the SNDA, and the exact language set forth herein may be modified so long as it does not change the intention of the parties and is approved by each party in its reasonable discretion. Without limiting the foregoing, each party agrees that a SNDA in the form attached hereto as Exhibit I will satisfy all requirements of this Section 22. If the holder of any Mortgage requires that this Lease have priority over such financingMortgage, Tenant will not unreasonably withholdshall, delay or defer its consent theretoupon request of such Mortgagee, provided that execute, acknowledge and deliver to such modifications do not materially adversely increase Mortgagee an agreement acknowledging such priority.
22.3 Subject to the obligations terms of this Section 22, Tenant hereunderhereby attorns to all successor owners of the Building, whether such ownership is acquired by sale, foreclosure of a Mortgage, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderotherwise.
Appears in 1 contract
Sources: Lease Agreement (Tw Telecom Inc.)
Subordination and Attornment. This LESSEE accepts this Lease is subject and subordinate to any mortgage or mortgages (including, without limitations, the liens of all mortgages, deeds of trust notes or other obligations secured thereby and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, consolidations, replacements or refinancings thereofextensions of any such mortgages or the notes or other obligations secured thereby) now in existence or hereinafter made by LESSOR from time to time, without any further act of affecting the Tenant except as expressly provided herein; provided, however, a condition precedent title to the subordination Leased Premises (or any part thereof) or LESSOR’s interest therein, provided that upon the request of this Lease to any particular future Mortgage first encumbering the Building LESSOR or the Project following holder of any such mortgage (“Mortgagee”), LESSEE shall enter into a written agreement with the date of Mortgagee (which agreement shall be provided at LESSOR’s expense, in a recordable form, and in form and substance reasonably satisfactory to LESSOR, the Mortgagee and LESSEE) providing that (i) this Lease and LESSEE’s interests hereunder shall be subordinate to the mortgage and the obligations secured thereby, (ii) in the event of foreclosure or other action taken under the mortgage by the Mortgagee, this Lease and the rights of LESSEE shall not be disturbed or diminished, but shall continue in full force and effect so long as LESSEE complies with the terms hereof; (iii) the Mortgagee shall permit insurance proceeds and proceeds from condemnation awards to be used for any renewals, extensions, modifications, consolidations restoration and replacements thereof, is that Landlord repair required or permitted by this Lease; and (iv) LESSEE shall attorn and recognize the Mortgagee as LESSOR hereunder. LESSOR shall use LESSOR’s best efforts to obtain for the benefit of Tenant such a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) benefitting LESSEE from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of any mortgage made by LESSOR after the MortgageCommencement Date. As used herein, “mortgage” shall include mortgages, deeds of trust, deeds to secure debt or other similar instruments, and any modifications or extensions of same. Sample Should LESSOR sell, convey or transfer its interest in the Leased Premises or should any mortgagee of LESSOR succeed to LESSOR’s interest through foreclosure or deed in lieu thereof, LESSEE shall attorn to the purchaser, recognize the purchaser such succeeding party as the landlord lessor under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that promptly upon any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent theretosuccession, provided that such modifications do succeeding party assumes all of LESSOR’s duties and obligations under this Lease. Such succeeding party shall not be liable for any of LESSOR’s obligations and duties hereunder prior to its assumption of LESSOR’s duties and obligations hereunder. LESSEE also accepts this Lease subject and subordinate to all instruments and documents of record in the chain of fee title to the Leased Premises; provided, however, that no such instrument or document shall be such that prohibits or materially adversely increase the obligations of Tenant hereunderhinders or restricts, or materially adversely affect the leasehold interest hereby created or Tenantimposes any obligations upon, LESSEE’s use and enjoyment occupancy of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderLeased Premises as provided in this Lease.
Appears in 1 contract
Sources: Lease Agreement
Subordination and Attornment. This A. LESSEE agrees that this Lease is and shall remain subject to and subordinate to the liens of all present and future mortgages, deeds of trust and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgagesto secure debt, deeds of trust, security agreements, financing statements and all other security instrumentsinstruments and other similar encumbrances (the “Encumbrances”) affecting the Land or the Building, or any part thereof, and ground leases being hereinafter referred within ten (10) days after written request, LESSEE shall execute, acknowledge, verify and deliver to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”LESSOR such certificate(s), letters, representations and to any and all renewalsagreements in writing as LESSOR or its lender may request, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to acknowledging the subordination of this Lease to such Encumbrances; provided, however, no such subordination will be effective unless LESSEE receives a non-disturbance agreement from the holder of any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and such Encumbrance. LESSOR agrees to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a use commercially reasonable efforts to obtain a subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of any existing Encumbrance on the Mortgagestandard form then required by such holder. Notwithstanding the foregoing, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages Encumbrance to the operation this Lease, without notice or LESSEE’s consent, and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event thereupon this Lease shall be deemed to be senior prior to such Mortgages Encumbrance without regard to the their respective dates of execution and/or recordation of execution, delivery or recording and in that event such Mortgages and this Lease and thereafter such Mortgagee lender shall have the same rights as with respect to this Lease as it would have had were though this Lease had been executed prior to the execution, delivery and delivered before the execution recording of such MortgagesEncumbrance and had been assigned to such lender. IfLESSEE hereby irrevocably appoints LESSOR as LESSEE’S attorney-in-fact, in connection coupled with obtaining financing for an interest, and grants LESSOR power of attorney to subordinate LESSEE’S interest under this Lease to all Encumbrances on the Land and the Building, a Mortgagee shall request reasonable modifications and any part thereof.
B. Nothing in this Lease as a condition shall in any manner restrict LESSOR’s right to assign or encumber this Lease in its sole discretion. Should the LESSOR assign this Lease or should LESSOR enter into Encumbrances affecting all or any portion of the Leased Premises and should the holder(s) of such Encumbrances succeed to the interest of LESSOR, LESSEE shall be bound to any such holder under all the terms, covenants and conditions of this Lease, and LESSEE shall promptly attorn to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderholder as LESSOR under this Lease.
Appears in 1 contract
Subordination and Attornment. 29.1 This Lease is shall be subject and subordinate to the liens lien of all mortgagesany mortgage, deeds deed of trust and or other security instruments encumbrance, or lease in which Landlord is tenant now or hereafter placed upon in force against the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building Buildings or the Project following the date of this Lease and to all advances made or hereafter to be made upon the security thereof without the necessity of the execution and delivery of any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for further instruments on the benefit part of Tenant to effectuate such subordination; provided Landlord will use commercially reasonable efforts to provide Tenant with a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from any current lender on the lessor Building.
29.2 Notwithstanding the foregoing, Tenant shall execute and deliver upon demand such further instrument or lender under instruments evidencing such Mortgagesubordination of this Lease to the lien of any such mortgage or mortgages or deeds of trust or lease in which Landlord is tenant as may be reasonably required by Landlord; provided that such agreement contains commercially reasonable non-disturbance protection in favor of Tenant. If requested by Landlordany such mortgagee, beneficiary or landlord under a lease wherein Landlord is tenant (each, a "Mortgagee") so elects, however, this Lease shall be deemed prior in lieu to any such lease, mortgage, or deed of trust upon or including the Premises regardless of date and Tenant shall promptly execute a statement in writing to such effect at Landlord's request.
29.3 Upon written request of Landlord and opportunity for Tenant to review, Tenant agrees to execute any certificate or other document confirming such subordination. Tenant agrees thatLease amendments not materially altering the terms of this Lease, if required by a mortgagee or beneficiary of a deed of trust encumbering real property of which the Premises constitute a part incident to the financing of the real property of which the Premises constitute a part.
29.4 In the event any proceedings are brought for foreclosure, or in the foreclosure of any event of the Mortgagesexercise of the power of sale under any mortgage or deed of trust made by Landlord covering the Premises, Tenant, if requested to do so by Tenant shall at the election of the purchaser at the such foreclosure or sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, purchaser upon any such foreclosure or sale and recognize the such purchaser as the landlord Landlord under this Lease, and make all payments required hereunder Lease so long as such purchaser agrees not to such new landlord without any deduction or set-off disturb Tenant’s quiet enjoyment of any kind whatsoever (except as provided in such SNDA)the Premises. Tenant waives the provisions of any current or future statute, rule or law or regulation, now or hereafter in effect, which may give, give or purport to give, give Tenant any right or election to terminate or otherwise adversely affect this Lease or to alter and the obligations of the Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees foreclosure proceeding or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereundersale.
Appears in 1 contract
Subordination and Attornment. (a) Tenant recognizes that Landlord has or will finance the acquisition of the Building which the Leased Property is a part by mortgages or similar encumbrances upon the Building and the Property. This Lease is Agreement shall be subject and subordinate to any mortgage given to secure the liens of all mortgages, deeds of trust financing and other security instruments mortgage now or hereafter placed constituting a lien upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”)Leased Property, and to any and all renewals, modifications, consolidations, replacements or extensions, modificationsthereof. Although no instrument or act on the part of Tenant shall be necessary to effectuate such subordination, or refinancings thereofTenant agrees to execute, without any acknowledge and deliver such further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of instruments subordinating this Lease to any particular such mortgage and future Mortgage first encumbering mortgages.
(b) In the Building or the Project following the date event of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any mortgage, Tenant shall make full and complete attornment to lender for the balance of the Mortgagesterm of this Lease, upon the same covenants and conditions as are contained herein, so as to establish direct privity of estate and contract between the lender and Tenant with the same force and effect as though this Lease Agreement were originally made directly between them. Tenant shall thereafter make all Rent payments directly to the lender.
(c) Except as set forth in Section 3.03, Landlord shall in no event be charged with default in any of its obligations hereunder unless and until Landlord shall have failed to perform such obligations within thirty (30) days (or such additional time as is reasonably required to correct any such default) after written notice to Landlord by Tenant, if requested specifically describing such failure. If Landlord commences and proceeds with due diligence to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn remedy a defect or to the purchaser, recognize the purchaser as the landlord make any change required under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided it shall not be in such SNDA)default. Tenant waives If the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenantmortgage covering the Building shall have given written notice to Tenant of the address to which notices to such holder are to be sent, provided that (i) Tenant shall pay all costs incurred by give such holder written notice simultaneously with any notice given to Landlord of any default of Landlord, and if Landlord fails to cure any default asserted in obtaining said notice within the time provided above, Tenant shall notify such SNDAholder in writing of the failure to cure, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and said holder shall have thirty (ii30) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining days after receipt of such SNDA. Notwithstanding anything contained herein second notice to the contrary, cure such default before Tenant may take any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, action by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation reason of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderdefault.
Appears in 1 contract
Subordination and Attornment. This Lessee accepts this Lease is subject and subordinate to the liens of all mortgagesany mortgage, deeds of trust and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds deed of trust, other security instrumentsground lease or similar interest (herein, and ground leases being hereinafter referred to as a “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “MortgageesMortgage”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent that if the holder of such Mortgage (the “Mortgagee”) thereunder elects to have Lessee's interest in this Lease superior to any such Mortgage, then by written notice to Lessee from the Mortgagee, this Lease shall be deemed superior to the subordination lien created by that Mortgage, provided that Mortgagee signs a Non-Disturbance Agreement which shall provide that so long as the Lessee is not in default in its obligations under this Lease, Lessee’s possession of the Premises will not be disturbed during the term. In the event of any foreclosure of any such lien or mortgage, Lessee agrees to attorn to the Mortgagee or other purchaser at foreclosure, upon demand. Notwithstanding anything to the contrary contained herein, Lessee agrees that this Lease shall be subordinate to any particular future Mortgage first encumbering placed against the Building Premises or the Project following Complex, and that it will attorn to the date of this Lease and to any renewalsfuture Mortgagee, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for only if the benefit of Tenant Mortgagee agrees with Lessee in a commercially reasonable subordination, non-disturbance and attornment agreement (an “SNDASNDA Agreement”) from ), in the lessor Mortgagee’s then standard form, that Lessee’s right to use and occupy the Premises under the terms of this Lease will not be deprived as a result of a termination or lender foreclosure of such Mortgage so long as Lessee is not then in default under such Mortgage. If requested by Landlordthis Lease; provided, however, Tenant shall promptly execute any certificate or that Lessee acknowledges and agrees that such SNDA Agreement may contain, among other document confirming terms and conditions required for obtaining such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that Mortgage (i) Tenant shall pay all costs incurred any provision (or the substantial equivalent thereof) contained in any previous SNDA Agreement executed by Landlord in obtaining such SNDALessee, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor a provision requiring that notices of Lessor default be given to the obligations of either party Mortgagee and the Mortgagee allowed a reasonable time in addition to Lessor’s cure period hereunder to cure such default before Lessee shall be conditional upon entitled to take its remedies hereunder or by law, (iii) a provision stating that the obtaining terms of such SNDA. Notwithstanding anything contained herein to the contrary, Mortgage govern over any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect conflicting provision of this Lease without obtaining pertaining to the TenantMortgagee’s consent theretoobligation to make insurance LESSOR’S INITIALS: LESSOR’S INITIALS: or condemnation proceeds available for reconstruction of any part of the Premises, (iv) provisions by giving which such Mortgagee or successor-in-interest upon foreclosure is agreed not to be bound by (a) any payment of rent or additional rent for more than one (1) month in advance, including prepayment in the Tenant written notice thereof, in which event nature of security for the performance by Lessee of its obligations under this Lease shall be deemed (unless actually received by such successor in interest), (b) any obligations of Lessor to be senior to such Mortgages without regard construct initial improvements (although if the Mortgagee insists on this clause it must agree that Lessee may complete the Premises pursuant to the respective dates approved Final Plans and Specifications provided in Exhibit “C” hereto, and offset the amount expended against rentals due hereunder, as long as Lessee makes such election within ten (10) days after the Mortgagee’s demand following transfer of execution and/or recordation the Premises to the Mortgagee or a purchaser at foreclosure), (c) any amendment or modification of this Lease (or implied waiver of Lessee’s obligations) made without the written consent of such Mortgages trustee or such beneficiary or such successor in interest, (d) any representations or defaults by any prior Lessor unless such defaults are continuing, and this Lease and thereafter (e) any other matters that such Mortgagee shall have is not directly responsible for causing, as such Mortgagee may specify, unless such matter constitutes a continuing default and/or (v) such other provisions and protections as such Mortgagee may request that are reasonably customary in the same rights commercial mortgage lending industry at the time so long as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications provisions do not materially adversely increase affect Lessee’s rights or obligations hereunder. Lessee, at any time hereafter on demand by Lessor, shall promptly execute and deliver to Lessor, in any event within ten (10) days of such demand, an SNDA Agreement meeting the obligations of Tenant hereunder, above criteria or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderin any other commercially reasonable form.
Appears in 1 contract
Subordination and Attornment. (a) This Lease is Sublease, and all rights of Sublessee hereunder, are and shall be subject and subordinate in all respect to the liens Original Lease, all present and future ground leases, overriding leases and underlying leases and/or grants of term of the land and/or the Building or the Building Complex now or hereafter existing and to all mortgages, deeds of trust and other security instruments building loan agreements, including leasehold mortgages, deeds of trust and building loan agreements, which may now or hereafter placed upon affect the Building or the Building Project Complex or any portion thereof of such leases, whether or not such mortgages or deeds of trust shall also cover other lands or buildings, to each and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, every advance made or hereafter to be made under such mortgages or deeds of trust, other security instrumentsand to all renewals, modifications, replacements and ground extensions of such leases being and such mortgages or deeds of trust. This Paragraph shall be self-operative and no further instrument of subordination shall be required. In confirmation of such subordination, Sublessee shall promptly execute and deliver at its own cost and expense any instrument, in recordable form if required, that Sublessor, the lessor of any such lease or the holder of any such mortgage or deed of trust, or any of their respective successors in interest may request to evidence such subordination. The leases to which this Sublease is, at the time referred to, subject and subordinate pursuant to this Paragraph are hereinafter sometimes called “superior lease” and the mortgages or deeds of trust to which this Sublease is, at the time referred to, subject and subordinate are hereinafter sometimes called “superior mortgages”. The lessor of a superior lease or the beneficiary of a superior mortgage or their successors in interest are hereinafter sometimes collectively referred to as a “Mortgages” and the mortgageessuperior party”.
(b) Sublessee shall take no steps to terminate this Sublease, beneficiaries, secured partieswithout giving written notice to such superior party, and ground lessors thereunder from time a reasonable opportunity to time cure (without such superior party being hereinafter called “Mortgagees”obligated to cure), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act default on the part of Sublessor under this Sublease.
(c) In the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if event any proceedings are brought for the foreclosure of, or in the event of the conveyance by deed in lieu of foreclosure of, or in the event of the exercise of the power of sale under, any superior mortgage, Sublessee hereby attorns to, and covenants and agrees to execute an instrument in writing reasonably satisfactory to the new owner whereby Sublessee attorns to, such successor in interest and recognizes such successor as the Sublessor under this Sublease.
(d) If holder of any superior mortgage on a ground lease, or anyone claiming by, through or under such holder, shall become the lessee under the ground lease as a result of foreclosure of the Mortgagessuperior mortgage, Tenantor by reason of an assignment of the lessee’s interest under the ground lease and the giving of a deed to the Building or the Building Complex in lieu of foreclosure, if requested there shall be no obligation on the part of such person succeeding to do so the interest of the lessee under the ground lease to comply with, observe or perform any obligations as sublessor, tenant or landlord under any superior lease, nor shall Sublessee look to such person for any security deposit delivered to Sublessor pursuant to the provision of Paragraph 29 hereof unless said security deposit has actually been received by such parties as security for the purchaser at performance by Sublessee under this Sublease.
(e) If, in connection with the foreclosure sale and procurement, continuation or renewal of any financing for which the Building or the Building Complex, or of which the interest of the lessee therein under a superior lease, represents collateral in whole or in part, an institutional lender shall request reasonable modifications of this Sublease as a condition of such financing, Sublessee will not unreasonably withhold its consent thereto provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter modifications do not increase the obligations of Tenant hereunder Sublessee under this Sublease or adversely affect any rights of Sublessee or decrease the obligations of Sublessor under this Sublease.
(f) So long as Sublessee is not in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall default under this Sublease, Sublessor agree to use commercially its reasonable efforts to provide Tenant with an SNDA obtain a non-disturbance agreement from the current holder of any Mortgages upon request by Tenantsuperior party, provided that such superior party's failure or refusal to execute a non-disturbance agreement following Sublessor's request shall not be deemed to be a breach or default of this Sublease by Sublessor.
(ig) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, Sublessee’s subordination and attornment as set forth above is conditioned upon the party being subordinated to granting customary nondisturbance to Sublessee and providing that if Sublessee is not in default beyond any Mortgagee applicable grace or cure period, then upon foreclosure or termination (as the case may at any time subordinate be), Sublessee's possession and use of the lien of its Mortgages to the operation Leased Premises shall not be disturbed, Sublessee’s rights and effect of interest under this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease Sublease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages recognized and this Sublease shall become a direct Lease between Sublessee, as tenant, and thereafter such Mortgagee shall have the same rights party succeeding to Sublessor’s or Landlord's interest, as to this Lease the landlord or sublandlord, as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderapplicable.
Appears in 1 contract
Subordination and Attornment. This Tenant accepts this Lease is subject and subordinate to the liens of all mortgages, any mortgages and/or deeds of trust and other security instruments now or at any time hereafter placed constituting a lien or charge upon the Building Leased Premises or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided hereinimprovements situated thereon; provided, however, that if the mortgagee, trustee, or holder of any such mortgage or deed of trust elects to have Tenant's interest in this Lease superior to any such instrument, then by notice to Tenant from such mortgagee, trustee or holder, this Lease shall be deemed superior to such lien, whether this Lease was executed before or after said mortgage or deed of trust. Landlord agrees to promptly obtain and deliver to Tenant a condition precedent subordination non-disturbance and attornment agreement in substantially the form attached hereto as Exhibit "G" and made a part hereof ("SNDA") executed by Landlord's current mortgagee with respect to the Land. Tenant agrees to enter into the SNDA with such mortgagee promptly upon Landlord's request therefor. Notwithstanding the foregoing, the subordination of this Lease to any particular future Mortgage first encumbering mortgage or deed of trust that is hereafter placed upon the Building Land is expressly conditioned upon Tenant and the mortgagee or beneficiary under any such mortgage or deed of trust entering into an SNDA in a form reasonably acceptable to Tenant (Tenant hereby agreeing that an SNDA substantially in the Project following form that is attached hereto as Exhibit "G" and made a part hereof is acceptable to Tenant). Tenant agrees to enter into such SNDA with any such mortgagee or beneficiary promptly upon Landlord's request therefor. Tenant shall be permitted to record the date SNDA in the real property records of this Lease and to any renewalsTarrant County, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such MortgageTexas. If requested by Landlord, howeverany future mortgagee or beneficiary under a mortgage or deed of trust hereafter placed upon the Land desires to subordinate its mortgage or deed of trust to this Lease, Tenant agrees that it shall promptly execute any certificate such instrument as may be reasonably required by such mortgagee or other document confirming beneficiary in order to effect such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunder.
Appears in 1 contract
Subordination and Attornment. This (a) Provided Landlord obtains for the benefit of Tenant from Landlord's mortgagee or ground lessor such mortgagee's or ground lessor's standard nondisturbance agreement reasonably acceptable to Tenant, this Lease is and shall remain subject and subordinate to the liens lien of any and all current and future first mortgages and/or any ground leases (which term "mortgages, " shall include both construction and permanent financing and shall include deeds of trust and other similar security instruments instruments) which may now or hereafter placed upon encumber the Building Complex or the Building Project or any portion thereof and all ground and other underlying leases from land on which Landlord’s interest the Complex is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”)located, and to any all and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations consolidations, recastings or refinancings thereof. At any time after the execution of this Lease, the holder of any mortgage to which this Lease is subordinate shall have the right to declare this Lease to be superior to the lien of such mortgage, and replacements Tenant agrees to execute all documents required by such holder in confirmation thereof, is .
(b) In the event that Landlord shall obtain for the benefit Tenant should fail to execute any instrument of nondisturbance and subordination herein required to be executed by Tenant a commercially reasonable subordination, non-disturbance and attornment agreement within fifteen (“SNDA”15) from the lessor or lender under such Mortgage. If requested by days of Landlord, however's demand, Tenant shall promptly hereby irrevocably constitutes Landlord as its attorney-in-fact to 110 execute any certificate or other document confirming such subordination. Tenant agrees thatinstrument in Tenant's name, if place and stead, it being agreed that such power is one coupled with an interest.
(c) In the event any proceedings are brought for the foreclosure of any mortgage encumbering the Complex or the termination of any ground lease affecting the MortgagesComplex, TenantTenant shall attorn to the purchaser at such foreclosure sale or any ground lessor, as the case may be, if requested to do so by the purchaser at the foreclosure sale such party, and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser such party as the landlord Landlord, under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law statute or regulationrule of law, now or hereafter in effect, which may give, give or purport to give, give Tenant any right to terminate or otherwise adversely affect this Lease or to alter and the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. .
(d) Landlord shall use commercially reasonable efforts represents and warrants to provide Tenant with an SNDA from that Landlord owns the current holder Complex in fee simple and as of any Mortgages upon request the date of the execution and delivery of this Lease, the Complex is not encumbered by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees a ground lease or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect any mortgage or deed of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereundertrust.
Appears in 1 contract
Sources: Assignment of Lease (Advanced Switching Communications Inc)
Subordination and Attornment. (a) This Lease is subject and subordinate the interest of Tenant hereunder shall be superior to the liens rights of all mortgagesany holder of a mortgage or holder of a ground lease or property that includes the Premises, deeds of trust and other security instruments now or hereafter placed upon the Building or the Building Project or unless any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, such holder enters into a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance agreement with Tenant in form and attornment agreement substance reasonably acceptable to Tenant and such holder providing that Tenant shall not be disturbed in its use or occupancy of the Premises for as long as this Lease continues in full force and effect and shall be afforded the protection of all of its rights and benefits hereunder (such agreement, a “SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives Notwithstanding the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein immediately preceding sentence to the contrary, any Mortgagee may at any time holder of a mortgage or holder of a ground lease of property which includes the Premises, executed and recorded before or (if such holder wishes to subordinate the lien of its Mortgages this Lease to such mortgage or ground lease) subsequent to the operation and effect date of this Lease without obtaining Lease, shall enter into a SNDA. The form attached hereto as Exhibit SNDA is acceptable to Tenant.
(b) Forthwith upon the Tenant’s consent theretorequest of Landlord, by giving the holder of any mortgage or deed of trust affecting the Premises, or the lessor under any ground lease affecting the Premises, Tenant written notice thereof, in which event this Lease shall be deemed to be senior execute and deliver to such Mortgages without regard party an attornment agreement providing that Tenant shall attorn to such holder or lessor in the respective dates event of execution and/or recordation a foreclosure of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution mortgage or deed of trust or transfer in lieu thereof or a termination of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease ground lease and incorporating such other terms and conditions as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent theretoparty may reasonably require, provided that such modifications do not materially adversely increase agreement includes an agreement by such other party to recognize the obligations rights of Tenant hereunder, under this Lease (Tenant agreeing that the form attached hereto as Exhibit SNDA is acceptable to it).
(c) Landlord represents and warrants to Tenant that there is no mortgage or materially adversely affect ground lease affecting the leasehold interest hereby created Lot or Tenant’s use and enjoyment Building as of the Premisesdate hereof. Tenant acknowledges and agrees that Landlord may subject the Lot to a separate ground lease with an affiliate, and assign this Lease to the master tenant under such ground lease to facilitate the financing of the Landlord’s Work. In connection therewith, and as a condition thereto, Landlord shall cause the ground lessor under such ground lease to enter into a Non-Disturbance Agreement in the form attached as Exhibit HTC NDA, attached. Tenant agrees, at Landlord’s request and at Landlord’s sole cost and expense, to enter into any additional instruments reasonably requested by Landlord in connection with the foregoing so long as the same are not inconsistent with or increase adverse to the amount rights of Annual Basic Rent and Additional Rent payable hereunderTenant under this Lease.
Appears in 1 contract
Sources: Lease Agreement (LogMeIn, Inc.)
Subordination and Attornment. This Tenant shall, subject to a Secured Party delivering to the Tenant a non-disturbance agreement pursuant to which the Lease is will continue as long as no Event of Default of Tenant has occurred, provide to any Secured Party an instrument (the “Subordination Agreement”) in form and content acceptable to Secured Party pursuant to which:
A. this Lease and any extensions, renewals, replacements or modifications thereto, and all right and interest of Tenant in and to the Premises and the Leased Property shall be subject and subordinate to the liens of all mortgages, deeds of trust and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred such Secured Loan Documents;
B. Tenant shall be obligated to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act each of the Tenant except Subsequent Owners (as expressly provided herein; provided, however, a condition precedent defined below) to perform all of the subordination terms and conditions of this Lease to for the balance of the remaining Term hereof, with the same force and effect as if such Subsequent Owner were Landlord;
C. If the Secured Party or a Subsequent Owner takes any particular future Mortgage first encumbering proceedings in respect of the Building Premises or the Project following Leased Property (including taking possession, foreclosure or power of sale) as a result of the date occurrence of a default under the Secured Loan Documents, Tenant shall attorn and be bound to such Secured Party or a Subsequent Owner under all of the terms of this Lease and to for the balance of the Term thereof remaining, including any renewals, renewals and/or extensions, modifications, consolidations with the same force and replacements thereof, is that Landlord shall obtain for the benefit of Tenant effect as if Secured Party or a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as Subsequent Owner were the landlord under this Lease, and make all payments required hereunder Tenant hereby attorns to Secured Party or a Subsequent Owner as landlord under this Lease, such attornment to take effect automatically, without the execution of any further instrument on the part of any of the parties hereto, immediately upon the Secured Party or a Subsequent Owner taking possession or control of the Premises or foreclosing under the Secured Loan Documents or otherwise becoming the permittee of the Premises or the owner of the Leased Property, but in each case subject to any conditions or restrictions imposed under or pursuant to the Ground Lease. If Secured Party exercises a power of sale as a result of the occurrence of a default under the Secured Loan Documents, Tenant shall attorn and be bound to the Subsequent Owner pursuant to such new power of sale under all of the terms of this Lease for the balance of the Term hereof remaining, including any renewals and extensions, with the same force and effect as if the Subsequent Owner were the landlord under this Lease, such attornment to take effect automatically, without any deduction or set-off the execution of any kind whatsoever (except as provided in such SNDA)further instrument on the part of the purchaser or Tenant, immediately upon the Subsequent Owner taking possession of the Premises. Tenant waives also agrees, however, to execute and deliver at any time and from time to time, upon the provisions request of Secured Party or any such Subsequent Owner: (a) any instrument or certificate which, in the reasonable judgment of Secured Party or such Subsequent Owner may be necessary or appropriate to evidence such attornment, and (b) an up to date estoppel certificate in form and substance consistent with this Lease. Further, but subject to Section 11.2D below, from and after any such attornment, Secured Party or such a Subsequent Owner shall be bound to Tenant under all of the terms, covenants and conditions of this Lease and Tenant shall not be disturbed in its rights to use and occupancy under the terms of this Lease; provided, however, that Secured Party or such Subsequent Owner shall not be:
(i) liable for any action or omission of, or any payment required to be made by, any prior landlord (including Landlord);
(ii) bound by any rent which Tenant might have paid for more than the current month to any prior landlord (including Landlord);
(iii) liable for the return or application of any law security deposits unless Landlord actually delivers such deposits to Secured Party;
(iv) liable for the cost of any Improvements which are Landlord’s responsibility;
(v) bound by any termination, surrender or regulation, now amendment or hereafter in effectmodification of this Lease made without Secured Party’s written consent; or
(vi) subject to any offsets or deficiencies, which may giveTenant might be entitled to assert against any prior landlord (including Landlord).
D. Notwithstanding the foregoing or anything else contained herein or elsewhere, Tenant acknowledges and agrees that if Tenant is in default under this Lease and there is a foreclosure of the Security Instrument (or a deed, vesting order or other conveyance in lieu of foreclosure), or purport other exercise by such Secured Party (or its successor or assign) of its rights or remedies in connection with which title or possession of the Ground Lease or the Leased Property, or any portion thereof is transferred to givethe Secured Party (or its designee) or to a purchaser at foreclosure or to a subsequent purchaser from the Secured Party (or from its designee) (all of the foregoing shall collectively be referred to as “Subsequent Owners”), Tenant any right this Lease may or may not be terminated in the Secured Party’s or the Subsequent Owner’s Sole Discretion. If the Secured Party or the Subsequent Owner elects to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by TenantLease, provided that (i) Tenant shall pay first assign all costs incurred by Landlord of its right, title and interest in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein subleases to the contrary, any Mortgagee may Secured Party or Subsequent Owner at any time subordinate the lien of its Mortgages no cost to the operation Secured Party or Subsequent Owner and effect comply with the balance of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderLease.
Appears in 1 contract
Subordination and Attornment. This Tenant acknowledges that this Lease is subject and subordinate to all leases in which Landlord is lessee and to any mortgage or deed of trust now in force against the liens Building and to all advances made or hereafter to be made thereunder, provided the holder thereof agrees in writing for Tenant's benefit not to disturb Tenant's rights under this Lease so long as there is no Event of Default under this Lease, Tenant agrees that this Lease shall be subordinate to any future leases in which Landlord is lessee and to any future first mortgage or deed of trust hereafter in force against the Building and to all mortgagesadvances made or hereafter to be made thereunder (all such existing and future leases, mortgages and deeds of trust referred to collectively as "Superior Instruments.") Landlord shall use its best efforts obtain a written nondisturbance agreement from all current and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all future mortgagees, ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instrumentslessors, and ground leases being hereinafter referred lessors under any superior leases, in form and substance reasonably acceptable to as “Mortgages” the parties. Tenant also agrees that if the holder of any Superior instrument elects to have this Lease superior to its Superior instrument and gives notice of its election to Tenant, then this Lease shall be superior to the mortgageeslien of any such lease, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any mortgage or deed of trust and all renewals, extensions, modifications, or refinancings replacements and extensions thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of whether this Lease to any particular future Mortgage first encumbering the Building is dated before or the Project following the date after such lease, mortgage or deed 20 of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgagetrust. If requested in writing by Landlord or any first mortgagee or ground lessor of Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if to execute a subordination agreement required to further effect the provisions of this paragraph. In the event of any proceedings are brought for transfer in lieu of foreclosure or termination of a lease in which Landlord is lessee or the foreclosure of any Superior instrument, or sale of the MortgagesProperty pursuant to any Superior instrument, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the such purchaser, transferee or lessor and recognize the purchaser such party as the landlord under this Lease, provided such party acquires and make all payments required hereunder accepts the Leased Premises and assumes Landlord's obligations under the Lease to be performed from and after the date such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA)party acquires the Leased Premises, subject to this Lease. Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations The agreement of Tenant hereunder to attorn contained in the event that immediately preceding sentence shall survive any such foreclosure sale or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereundertransfer.
Appears in 1 contract
Subordination and Attornment. This Lease is and will be subject and subordinate in all respects to the liens of all mortgagesany ground lease, deeds mortgage or deed of trust and other security instruments now or hereafter placed upon later encumbering the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”)Premises, and to any and all their renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modificationssupplements, consolidations and replacements thereof(an “Encumbrance”). While such subordination shall be self-operative and shall occur automatically, is that Tenant agrees, upon request by and without cost to Landlord shall obtain for or any successor in interest, to execute and deliver to Landlord or the benefit holder of Tenant a commercially reasonable an Encumbrance such instrument(s) as may be reasonably required by Landlord or such successor in interest to evidence such subordination, non-disturbance and attornment agreement within ten (“SNDA”10) from the lessor or lender under such Mortgage. If requested days after request by Landlord. In the alternative, however, Tenant shall promptly execute any certificate or other document confirming the holder of an Encumbrance may unilaterally elect to subordinate such subordinationEncumbrance to this Lease. Tenant Landlord agrees that, if any proceedings are brought for to request from the foreclosure holder of any Encumbrance, a nondisturbance agreement in such party’s customary form; provided, however that the failure of such party to deliver a nondisturbance agreement following such request shall not be a breach of this Lease or entitle Tenant to any remedies against Landlord. If the interest of Landlord is transferred to any person (a “Successor Landlord”) by reason of the Mortgagestermination or foreclosure, or proceedings for enforcement, of an Encumbrance, or by delivery of a deed in lieu of such foreclosure or proceedings, then, at the option and upon the demand of the Successor Landlord, Tenant will immediately and automatically attorn to the Successor Landlord. Upon attornment this Lease will continue in full force and effect as a direct lease between the Successor Landlord and Tenant, if requested upon all of the same terms, conditions and covenants as stated in this Lease except that a Successor Landlord shall not be (a) liable for any previous act or omission or negligence of Landlord under this Lease, (b) subject to do so any counterclaim, defense or offset not expressly provided for in this Lease and asserted with reasonable promptness, which therefore shall have accrued to Tenant against Landlord, (c) bound by the purchaser at the foreclosure sale and provided that Tenant has an previous modification or amendment of this Lease or by any previous prepayment of more than one month’s rent, unless such modification or prepayment shall have been previously provided with an SNDA executed approved in writing by the holder of any Encumbrance through or by reason of which the Mortgage, Successor Landlord shall attorn have succeeded to the purchaser, recognize the purchaser as the landlord rights of Landlord under this Lease or (d) obligated to perform any repairs or other work beyond Landlord’s obligations under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives agrees, upon request by and without cost to the provisions of any law or regulationSuccessor Landlord, now or hereafter in effect, which to promptly execute and deliver to the Successor Landlord such instrument(s) as may give, or purport be reasonably required by Successor Landlord to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in evidence such attornment. In the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon first mortgage encumbering the Leased Premises shall succeed to the interest of Landlord by reason of the enforcement of such Encumbrance, then, at the request by Tenantof the holder of such Encumbrance, provided that (i) Tenant shall pay enter into a new lease with such Encumbrance holder for the balance of the Term on all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights terms and conditions as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications are set forth in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderLease.
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Sources: Telecommunications Equipment and Huts Ground Lease Agreement
Subordination and Attornment. This Lease is subject and shall be subordinate to any future Deed of Trust or Mortgage (a "MORTGAGE") that encumbers the liens of all mortgagesbuilding, deeds of trust and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, modifications, amendments, extensions, modifications, or refinancings assignments and participation thereof, without any further act if the mortgagee, beneficiary or owner thereof ("MORTGAGEE") enters into a Subordination and Non-Disturbance Agreement (an "SNDA") with Tenant that is reasonably acceptable to Tenant and Mortgagee and that contains a provision similar to the following: "As long as no Event of Default by Tenant exists, Mortgagee shall not disturb Tenant's right to possession of the Premises or any other rights of Tenant except under the Lease during the initial and subsequent Terms of the Lease, and the Lease and all rights and obligations of the parties to the Lease shall continue in full force and effect, notwithstanding foreclosure of the Mortgage or transfer of the building in lieu of foreclosure." The word "Mortgagee(s)," as expressly provided herein; providedused in this Lease, shall include each Mortgagee that exists on the Commencement Date. This Lease is contingent upon each Mortgagee that exists on the Commencement Date entering into an SNDA with Tenant that is reasonably acceptable to Tenant and the Mortgagee and that contains a non-disturbance provision similar to the one quoted above in this subsection. b. Tenant shall attorn and pay rent to an entity that acquires the building by purchase at a foreclosure sale or by a deed in lieu of foreclosure, and shall recognize such entity as the Landlord under this Lease, if such entity agrees in writing with Tenant at the time of the transaction to assume this Lease and perform all of Landlord's obligations under this Lease and acknowledges it and Tenant are contractually bound to each other under this Lease. Provided, however, a condition precedent to the subordination of this Lease to such an agreement shall provide that such acquiring entity shall not be (1) liable for any particular future Mortgage first encumbering the Building previous act or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure omission of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the prior landlord under this Lease, and make all payments required hereunder (2) subject to such new landlord without any deduction or set-off of any kind whatsoever (except as offset, not expressly provided for in such SNDA). this Lease, that accrues to Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate against Landlord under this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein prior to the contrarysale or transfer, (3) bound by any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunder.previous
Appears in 1 contract
Subordination and Attornment. 22.1 This Lease is subject and at Landlord's option will be subordinate to the liens of all mortgagesany mortgage, deeds deed of trust and other security instruments related documents now or hereafter placed upon the Building or the Building Project or any portion thereof and Complex (including all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”advances made thereunder), and to any and all amendments, renewals, extensions, modificationsreplacements, or refinancings thereofrestatements thereof (collectively, without any further act of the "Mortgage"). Tenant except as expressly provided hereinagrees that no documentation other than this Lease is required to evidence such subordination; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for provide to Tenant, on or before the benefit of Tenant Commencement Date, a commercially reasonable subordination, non-disturbance disturbance, subordination and attornment agreement (“"SNDA”") from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure holder of any of Mortgage ("Mortgagee") now or then encumbering the MortgagesBuilding, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completedMortgagee's standard SNDA form. Landlord shall use commercially reasonable efforts to provide Tenant with an also request a SNDA from any Mortgagee hereinafter encumbering the current holder of Building, in such future Mortgagee's standard form,
22.2 If any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited Mortgagee elects to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither have this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein superior to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages Mortgage and gives notice to Tenant, this Lease will be deemed prior to such Mortgage whether this Lease is dated prior or subsequent to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation date of such Mortgages Mortgage or the date of recording thereof.
22.3 In confirmation of subordination or superior position, as the case may be, Tenant will execute such documents as may be required by Mortgagee and this Lease if it fails to do so within 10 days after demand, Tenant hereby irrevocably appoints Landlord as Tenant's attorney-in-fact and thereafter such Mortgagee shall have the same rights as in Tenant's name, place, and stead, to this Lease as it would have had were this Lease executed and delivered before the execution do so.
22.4 Tenant hereby attorns to all successor owners of such Mortgages. If, in connection with obtaining financing for the Building, whether such ownership is acquired by sale, foreclosure of a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunderMortgage, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderotherwise.
Appears in 1 contract
Sources: Office Lease (Kroll Inc)
Subordination and Attornment. This Lease is and all rights of Tenant hereunder are and shall be subject and subordinate in all respects to: (i) all present and future ground leases, operating leases, superior leases, overriding leases and underlying leases and grants of term of the Center and the Building or any portion thereof (collectively, including the applicable items set forth in Subdivision (iv) of this Section, the “Superior Lease”, and the party then exercising the rights of landlord thereunder being referred to herein as the liens of “Superior Lessor”); (ii) all mortgagesmortgages and building loan agreements, deeds of trust including leasehold mortgages and other security instruments spreader and consolidation agreements, which may now or hereafter placed upon affect the Center, the Building or the Building Project or any portion thereof Superior Lease (collectively, including the applicable items set forth in Subdivisions (iii) and all ground and other underlying leases from which Landlord’s interest is derived (said mortgagesiv) of this Section, deeds of trust, other security instrumentsthe “Superior Mortgage”, and ground leases the party then exercising the rights of mortgagee, beneficiary or secured party thereunder being hereinafter referred to herein as the “Mortgages” Superior Mortgagee”) whether or not the Superior Mortgage shall also cover other lands or buildings or leases except that a mortgage on the Center only shall not be a Superior Mortgage so long as there is in effect a Superior Lease which is not subordinate to such mortgage: (iii) each advance made or to be made under the Superior Mortgage; and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and (iv) all renewals, extensions, modifications, or refinancings thereofreplacements, without any further act supplements, substitutions and extensions of the Tenant except as expressly provided herein; provided, however, a condition precedent to Superior Lease and the subordination Superior Mortgage and all spreaders and consolidations of the Superior Mortgage. The provisions of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date Section shall be self-operative and no further instrument of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord subordination shall obtain for the benefit be required. In confirmation of Tenant a commercially reasonable such subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute and deliver, at its own cost and expense, any certificate instrument, in recordable form if requested, that Landlord, the Superior Lessor or other document confirming the Superior Mortgagee may reasonably request to evidence such subordination. Tenant agrees thatThe Superior Mortgagee may elect that this Lease shall have priority over its Superior Mortgage and, if any proceedings are brought for upon notification by the foreclosure of any of the Mortgages, Superior Mortgagee to Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior have priority over such Superior Mortgage, whether this Lease is dated prior to such Mortgages without regard or subsequent to the respective dates of execution and/or recordation date of such Mortgages Superior Mortgage. If, at any time prior to the termination of this Lease, the Superior Lessor or the Superior Mortgagee or any person, or the Superior Lessor’s or Superior Mortgagee’s or such person’s successors or assigns (the Superior Lessor, Superior Mortgagee and any such person or successor or assign being herein collectively referred to as “Successor Landlord”) shall succeed to the rights of Landlord under this Lease through possession or foreclosure or delivery of a new lease or deed or otherwise, Tenant agrees, at the election and upon request of any such Successor Landlord, to fully and completely attorn to and recognize any such Successor Landlord, as Tenant’s landlord under this Lease upon the then-executory terms of this Lease; provided such Successor Landlord shall agree in writing to accept Tenant’s attornment. The foregoing provisions of this Section shall: (i) inure to the benefit of any such Successor Landlord; (ii) apply notwithstanding that, as a matter of law, this Lease may terminate upon the termination of the Superior Lease; (iii) be self-operative upon any such demand; and (iv) require no further instrument to give effect to said provisions. Tenant, however, upon demand of any such Successor Landlord agrees to execute, from time to time, instruments to evidence and confirm the foregoing provisions of this Section, reasonably satisfactory to any such Successor Landlord, acknowledging such attornment and setting forth the terms and conditions, of its tenancy. Upon such attornment this Lease shall continue in full force and effect as a direct lease between such Successor Landlord and Tenant upon all of the then-executory terms of this Lease except that such Successor Landlord shall not be: (i) liable for any previous act or omission or negligence of Landlord under this Lease; (ii) subject to any counterclaim, defense or offset, not expressly provided for in this Lease and thereafter such Mortgagee asserted with reasonable promptness, which theretofore shall have accrued to Tenant against Landlord; (iii) obligated to perform any Tenant Improvements or other work with respect to the same Premises; (iv) bound by any previous previous prepayment of more than one month’s Rent, unless such modification, amendment, consensual termination or prepayment shall have been approved in writing by the Superior Lessor or the Superior Mortgagee through or by reason of which the Successor Landlord shall have succeeded to the rights of Landlord under this Lease; (v) obligated to repair the Premises or the Building or any part thereof, in the event of total or substantial total damage beyond such repair as can reasonably be accomplished from the net proceeds of insurance actually made available to Successor Landlord; (vi) obligated to repair the Premises or the Building or any part thereof, in the event of partial condemnation beyond such repair as can reasonably be accomplished from the net proceeds of any award actually made available to Successor Landlord, as consequential damages allocable to the part of the Premises or the Building not taken; or (vii) liable for the return of any Security Deposit unless such Security Deposit has been delivered to Successor Landlord by Landlord or is in an escrow fund available to Successor Landlord. Nothing contained in this Section shall be construed to impair any right otherwise exercisable by any such owner, holder or lessee. Within a reasonable period of time following the complete execution of this Lease and, as appropriate, after the placement of all future mortgages, Landlord shall obtain, from all Superior Mortgagees and Superior Lessors, one of more agreements of nondisturbance in favor of the Tenant, such that, if, at any time prior to the termination of this Lease, the Superior Lessor or the Superior Mortgagee or any person, or the Superior Lessor’s or Superior Mortgagee’s or such person’s successors or assigns (the Superior Lessor, Superior Mortgagee and any such person or successor or assign being herein collectively referred to as “Successor Landlord”) shall succeed to the rights of Landlord under this Lease through possession or foreclosure or delivery of a new lease or deed or otherwise, then Tenant’s rights under this Lease shall not be disturbed and shall remain in full force and effect for the Term so long as Tenant timely performs and observes all of the terms, covenants and conditions of this Lease to be performed or observed by it, subject to the notice and cure periods set forth herein, and provided that Tenant agrees to attorn to the Successor Landlord upon any such foreclosure or sale or re-leasing and recognize such Successor Landlord as the Landlord under this Lease. Such agreement or agreements of nondisturbance shall take such form as Tenant and such Superior Mortgagees or Superior Lessors shall agree, but Landlord’s obligation shall be limited to obtaining such agreements of nondisturbance in the form or forms customarily agreed to by such Superior Mortgagees or Superior Lessors. Landlord shall have no obligation to negotiate the form of any agreement of nondisturbance if Tenant and any Superior Mortgagee or Superior Lessor disagree with respect to the form or content of a proposed agreement of nondisturbance. The obligations of Landlord and Tenant under this Lease shall not be impaired if Tenant and any such Superior Mortgagee or Superior Lessor disagree as to this Lease as it would have had were this Lease executed and delivered before the execution form or content of any nondisturbance agreement which is offered to Tenant by any such Mortgages. If, in connection with obtaining financing for the Building, a Superior Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderSuperior Lessor.
Appears in 1 contract
Subordination and Attornment. 22.1 This Lease is subject and at Landlord's option will be subordinate to the liens of all mortgagesany mortgage, deeds deed of trust and other security instruments related documents now or hereafter placed upon the Building or the Building Project or any portion thereof and Complex (including all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”advances made thereunder), and to any and all amendments, renewals, extensions, modificationsreplacements, or refinancings restatements thereof (collectively, "Mortgage"). Tenant agrees that no documentation other than this Lease is required to evidence such subordination, provided, however, that the subordination by Tenant to any such future mortgage, deed of trust or related documents shall be subject to Tenant obtaining a non- disturbance agreement, on such lender's standard form agreement, with changes are Tenant may reasonably require (to the extent such changes are consistent with provisions in forms customarily executed by credit-worthy full-floor tenants) whereby such lender agrees, provided Tenant is not then in default under this Lease, that Tenant's occupancy of the Premises and rights and privileges under this Lease shall not be disturbed or impaired in connection with any proceeding to enforce or foreclose any such mortgage, trust indenture or other lien and if such party succeeds to the interests of Landlord by reason of such proceedings or conveyance in lieu thereof, without any further act of the Tenant except as expressly provided hereinshall attorn hereunder directly to such party; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord such party shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that not be (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to liable for any fees act or charges from Landlord’s lender omission of any prior landlord or such lender’s counsel; and (ii) neither subject to any offsets or defenses which Tenant might have against any prior landlord, including Landlord (but such limitation shall not relieve such party from the responsibility to perform the obligations as successor to Landlord applicable during its period of ownership); or (iii) bound by any rental which Tenant might have paid for more than one (1) month in advance to any prior landlord; or (iv) bound by any amendment or modification of the Lease made without its consent.
22.2 If any Mortgagee elects to have this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein superior to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages Mortgage and gives notice to Tenant, this Lease will be deemed prior to such Mortgage whether this Lease is dated prior or subsequent to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation date of such Mortgages Mortgage or the date of recording thereof.
22.3 In confirmation of subordination or superior position, as the case may be, Tenant will execute such documents as may be required by Mortgagee and this Lease if it fails to do so within 10 days after demand, Tenant hereby irrevocably appoints Landlord as Tenant's attorney-in-fact and thereafter such Mortgagee shall have the same rights as in Tenant's name, place, and stead, to this Lease as it would have had were this Lease executed and delivered before the execution do so.
22.4 Tenant hereby attorns to all successor owners of such Mortgages. If, in connection with obtaining financing for the Building, whether such ownership is acquired by sale, foreclosure of a Mortgage, or otherwise.
22.5 Upon the execution hereof, Tenant and Landlord's Mortgagee shall request reasonable modifications execute the form of nondisturbance agreement in this Lease the form attached hereto as a condition to EXHIBIT J and thereafter Landlord promptly shall provide Tenant such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderdocument as executed by Landlord's Mortgagee.
Appears in 1 contract
Subordination and Attornment. This (a) Simultaneous with the execution of this Lease by Lessor, Lessor shall cause the Subordination and Non-disturbance Agreement in the form of Exhibit B to be executed by all then current ground lessors and holders of all Indentures. In such case, this Lease is subject to and subordinate to all ground leases and Indentures which affect the liens of all mortgages, deeds of trust and other security instruments now or hereafter placed upon the Building Land or the Building Project or any portion thereof Leased Property and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds are of trust, other security instruments, and ground leases being hereinafter referred public record as of the date Lessor acquires title to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”)Land, and to all renewals, modifications, consolidations, replacements and extensions thereof. However, if the lessor under any such ground lease or any of Lessor’s Assignees shall advise Lessor that it desires or requires this Lease to be made prior and superior thereto, then, within twenty (20) days of written request of Lessor to Lessee, Lessee shall promptly execute, acknowledge and deliver any and all renewalscustomary or reasonable documents or instruments which Lessor and such lessor or Lessor’s Assignee deems necessary or desirable to make this Lease prior thereto. However, extensionsif any lessor under any such future ground lease or any Lessor’s Assignee holding or offering to hold such future mortgage or deed of trust shall desire or require that this Lease be made subject to and subordinate to such future ground lease, modificationsmortgage or deed of trust then Lessee agrees, within twenty (20) days after Lessor’s written request therefor, to execute, acknowledge and deliver to Lessor any and all documents or refinancings thereof, without any further act of the Tenant except instruments requested by Lessor or by such ground lessor or Lessor’s Assignee as expressly provided herein; provided, however, a condition precedent may be necessary or proper to assure the subordination of this Lease to any particular such future Mortgage first encumbering the Building ground lease or the Project following the date of Indenture, but only if such lessor or Lessor’s Assignee agrees to recognize Lessee’s rights under this Lease and agrees not to disturb Lessee’s quiet possession of the Leased Premises in an instrument substantially in the form of Exhibit B. If Lessor assigns the Lease as security for a loan, Lessee agrees to execute such documents as are reasonably requested by the Lessor’s Assignee and to provide reasonable provisions in the Lease protecting the security interest of such Lessor’s Assignee which are customarily required by institutional lenders making loans secured by a deed of trust. Without limiting the foregoing, Lessee hereby approves the form of Subordination, Non-Disturbance and Attornment Agreement attached hereto as Exhibit B.
(b) In addition, as a condition of any renewalsfuture subordination of this Lease, extensions, modifications, consolidations and replacements thereof, is that Landlord any holder of a future Indenture or ground lease on the Leased Property shall obtain for the benefit of Tenant enter into a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereofagreement, in which event this Lease shall be deemed a form substantially similar to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights that attached hereto as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunder.Exhibit B.
Appears in 1 contract
Subordination and Attornment. (a) This Lease and all rights of Tenant hereunder shall be subordinate to all ground leases (referred to as the "leases") of the Building or Land now or hereafter existing and to all mortgages (referred to as the "mortgages") which may now or hereafter affect the Building or Land, whether or not the leases or mortgages shall also cover other lands, buildings, or leases, to all renewals, modifications, replacements and extensions of the leases and mortgages and to spreaders and consolidations of such mortgages. This Section shall be self-operative and no further instruments of subordination shall be required. In confirmation of such subordination, Tenant shall promptly execute, acknowledge and deliver any instrument that Landlord, the lessor under any lease or the holder of any mortgage or any of their respective assigns or successors in interest may reasonably request to evidence such subordination. Any lease to which this Lease is subject and subordinate is herein called "Superior Lease" and the lessor under a Superior Lease or its assigns or successors in interest is herein called "Superior Lessor," and any mortgage to which this Lease is :subject and subordinate is herein called "Superior Mortgage" and the holder of a Superior Mortgage is herein called "Superior Mortgagee." If a Superior Lessor or Superior Mortgagee requires that such instruments be executed by Tenant, Tenant's failure to do so within 10 days after request therefor shall be deemed a material default under this Lease.
(b) If any Superior Lessor or Superior Mortgagee (or any purchaser at a foreclosure sale) succeeds to the liens rights of all mortgagesLandlord under this Lease, deeds whether through possession or foreclosure action or delivery of trust a new lease or deed, (a "Successor Landlord") Tenant shall attorn to and other security instruments now or hereafter placed upon recognize such Successor Landlord as Tenant s landlord under this Lease and shall promptly execute and deliver any instrument that such Successor Landlord may reasonably request to evidence such attornment. Landlord shall use its best efforts to obtain from each Superior Lessor and Superior Mortgagee an agreement that if as a result of the Building or the Building Project or any portion thereof and all ground and other underlying leases from which exercise of their rights they acquire Landlord’s 's interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), in and to any the Premises, then as Successor Landlord they shall recognize the validity and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date continuance of this Lease and to any renewalsshall not disturb Tenant's possession of the Premises so long as Tenant shall not be in default of this Lease, extensions, modifications, consolidations and replacements thereof, is except that Successor Landlord shall obtain in no event: (i) be liable for the benefit any previous act or omission of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the prior landlord under this Lease; (ii) be subject to any offset for a claim arising prior to its succession to the rights of Landlord under this Lease; or, and make all payments required hereunder (iii) after notice to such new landlord without Tenant of the existence of a Superior Lessor or a Superior Mortgagee, be bound by any deduction or set-off subsequent modification of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations by any subsequent prepayment of Tenant hereunder in the event that any more than one month's Rent, unless such foreclosure modification or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee prepayment shall have been expressly approved by the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderSuccessor Landlord.
Appears in 1 contract
Sources: Office Lease (Jreck Subs Group Inc)
Subordination and Attornment. Landlord may sell the Land and become the tenant under a ground or underlying lease of the Land and this Lease and all rights of Tenant hereunder will then be subject and subordinate to such underlying lease and any extensions or modifications thereof. This Lease and all of Tenant's rights hereunder shall also be subject and subordinate to any mortgage or mortgages (and the liens thereof) at any time hereafter in force against the Building, the Land and/or the underlying leasehold estate, and to all advances made or hereafter to be made upon the security thereof. For purposes of this Lease, "Mortgagee" shall mean the mortgagee, from time to time, under any mortgage granted by Landlord and hereafter encumbering the Property or any portion thereof or interest therein. Tenant shall execute such further instruments subordinating this Lease to any such mortgage or mortgages as Landlord from time to time may request. Tenant covenants and agrees that, if by reason of any default on the part of Landlord herein as tenant under said underlying lease, or as mortgagor under any mortgage to which this Lease is subject and subordinate subordinate, said underlying lease is terminated or such mortgage is foreclosed by summary proceedings, voluntary agreement or otherwise, Tenant, at the election of the landlord under said underlying lease or the Mortgagee of such mortgage, as the case may be, will attorn to and recognize such landlord or Mortgagee as the "Landlord" under this Lease. Tenant further agrees to execute and deliver at any time upon request of Landlord, any Mortgagee or any party which shall succeed to the liens interest of all mortgagesLandlord as tenant under said underlying lease, deeds any instrument reasonably necessary to evidence such attornment. However, in the event of trust and other security instruments now or hereafter placed upon the Building or the Building Project attornment, no Mortgagee or any portion thereof and all ground and party which shall succeed to the interest of Landlord as tenant under said underlying lease shall be: (i) liable for any act or omission of Landlord, or subject to any offsets or defenses which Tenant might have against Landlord (prior to such Mortgagee or other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”party becoming Landlord under such attornment), and to (ii) liable for any and all renewals, extensions, modificationssecurity deposit or bound by any prepaid Rent not actually received by such Mortgagee or other party, or refinancings thereof, without (iii) bound by any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination future modification of this Lease not consented to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under by such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate Mortgagee or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA)party. Tenant waives the provisions provision of any law or regulation, now or hereafter in effect, effect which may give, or purport give to give, Tenant any right of election to terminate this Lease or to alter surrender possession of the obligations of Tenant hereunder Premises in the event that any proceeding is brought by landlord under said underlying lease or the Mortgagee under any such foreclosure mortgage to terminate said underlying lease or termination foreclose such mortgage. At the election of any Mortgagee (expressed in a document signed by such Mortgagee), such Mortgagee may make all or other proceeding some of Tenant's rights and interests in this Lease superior to any mortgage held by such Mortgagee and the lien thereof. Tenant's obligation hereunder to subordinate its rights under this Lease to any mortgage or mortgages or underlying lease is prosecuted or completed. Landlord shall use commercially reasonable efforts expressly subject to provide Tenant with an SNDA Tenant's receiving from the current holder of any Mortgages upon request by such superior interest a non-disturbance agreement in form and content reasonably acceptable to Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining and such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderholder.
Appears in 1 contract
Sources: Lease (Innotrac Corp)
Subordination and Attornment. Landlord may sell the Land and become the tenant under a ground or underlying lease of the Land and this Lease and all rights of Tenant hereunder will then be subject and subordinate to such underlying lease and any extensions or modifications thereof. This Lease and all of Tenant’s rights hereunder shall also be subject and subordinate to any mortgage or mortgages (and the liens thereof) now or at any time hereafter in force against the Building, the Land and/or the underlying leasehold estate, and to all advances made or hereafter to be made upon the security thereof. For purposes of this Lease, “Mortgagee” shall mean the mortgagee, from time to time, under any mortgage granted by Landlord and now or hereafter encumbering the Property or any portion thereof or interest therein. Tenant shall execute such further instruments subordinating this Lease to any such mortgage or mortgages as Landlord from time to time may request. Tenant covenants and agrees that, if by reason of any default on the part of Landlord herein as tenant under said underlying lease, or as mortgagor under any mortgage to which this Lease is subject and subordinate subordinate, said underlying lease is terminated or such mortgage is foreclosed by summary proceedings, voluntary agreement or otherwise, Tenant, at the election of the landlord under said underlying lease or the Mortgagee of such mortgage, as the case may be, will attorn to and recognize such landlord or Mortgagee as the “Landlord” under this Lease. Tenant further agrees to execute and deliver at any time upon request of Landlord, any Mortgagee or any party which shall succeed to the liens interest of all mortgagesLandlord as tenant under said underlying lease, deeds any instrument to evidence such attornment. However, in the event of trust and other security instruments now or hereafter placed upon the Building or the Building Project attornment, no Mortgagee or any portion thereof and all ground and party which shall succeed to the interest of Landlord as tenant under said underlying lease shall be: (i) liable for any act or omission of Landlord, or subject to any offsets or defenses which Tenant might have against Landlord (prior to such Mortgagee or other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”party becoming Landlord under such attornment), and to (ii) liable for any and all renewals, extensions, modificationssecurity deposit or bound by any prepaid Rent not actually received by such Mortgagee or other party, or refinancings thereof, without (iii) bound by any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination future modification of this Lease not consented to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under by such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate Mortgagee or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA)party. Tenant waives the provisions provision of any law or regulation, now or hereafter in effect, effect which may give, or purport give to give, Tenant any right of election to terminate this Lease or to alter surrender possession of the obligations of Tenant hereunder Premises in the event that any proceeding is brought by landlord under said underlying lease or the Mortgagee under any such foreclosure mortgage to terminate said underlying lease or termination or other proceeding is prosecuted or completedforeclose such mortgage. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from At the current holder election of any Mortgages upon request Mortgagee (expressed in a document signed by Tenantsuch Mortgagee), provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien make all or some of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages rights and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications interests in this Lease as a condition superior to any mortgage held by such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase Mortgagee and the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderlien thereof.
Appears in 1 contract
Sources: Lease Agreement (Ulta Salon, Cosmetics & Fragrance, Inc.)
Subordination and Attornment. (a) This Lease is subject and subordinate to all Mortgages and Superior Leases, and, at the liens request of all mortgages, deeds of trust and other security instruments now any Mortgagee or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, howeverLessor, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchasersuch Mortgagee or Lessor, recognize the its successors in interest or any purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such a foreclosure or termination or other proceeding is prosecuted or completedsale. Landlord shall use commercially reasonable efforts to provide deliver to Tenant a subordination, nondisturbance and attornment agreement from Landlord’s current and all future Mortgagees and Lessors on each such Mortgagee’s or Lessor’s standard form (an “SNDA”), which form shall be in a commercially reasonable form and which form shall be modified to address any Lease-specific provisions as such Mortgagee or Lessor might reasonably require; provided, however, with respect to any future Mortgagee(s), such subordination shall not be effective until a commercially reasonable SNDA modified as set forth above has been executed by the Mortgagee and delivered to Tenant. If Landlord fails to deliver to Tenant an SNDA from Landlord’s current Mortgagee within thirty (30) days after the current holder of any Mortgages upon request by Effective Date (the “SNDA Period”), Tenant, provided that as Tenant’s sole remedy, shall have the right to terminate this Lease during the fifteen (i15) day period immediately following the SNDA Period by delivering written notice to Landlord of such termination. If Tenant shall pay all costs incurred by Landlord in obtaining fails to terminate this Lease during such SNDAfifteen (15) day period, including but not limited then Landlord’s obligation to any fees or charges obtain an SNDA from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder current Mortgagee as set forth herein shall be conditional upon deemed null and void and Landlord shall have no further obligation to obtain an SNDA from Landlord’s current Mortgagee. Landlord represents to Tenant that there is no Superior Lease as of the obtaining Effective Date.
(b) If a Lessor or Mortgagee or any purchaser at a foreclosure sale under the Mortgage, any transferee which acquires the Project by deed in lieu of foreclosure, and the successors and assigns of such SNDA. Notwithstanding anything contained herein purchaser(s) shall succeed to the contraryrights of Landlord under this Lease, any Mortgagee may then at any time subordinate the lien request of its Mortgages the successor landlord and upon such successor landlord’s written agreement to the operation accept ▇▇▇▇▇▇’s attornment and effect of this Lease without obtaining the to recognize Tenant’s consent theretointerest under this Lease, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to have attorned to and recognized such successor landlord as Landlord under this Lease. The provisions of this Section are self-operative and require no further instruments to give effect hereto; provided, however, that Tenant shall promptly execute and deliver any instrument that such successor landlord may reasonably request (i) evidencing such attornment, (ii) setting forth the terms and conditions of Tenant’s tenancy, and (iii) containing such other terms and conditions as may be senior to required by such Mortgages without regard to Mortgagee or Lessor, provided such terms and conditions do not increase the respective dates of execution and/or recordation of Rent, materially increase Tenant’s obligations or materially and adversely affect Tenant’s rights under this Lease. Upon such Mortgages and attornment this Lease shall continue in full force and thereafter effect as a direct lease between such Mortgagee shall have successor landlord and Tenant upon all of the same rights as to this Lease as it would have had were this Lease executed terms, conditions and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications covenants set forth in this Lease except that such successor landlord shall not be:
(i) liable for any act or omission of Landlord (except to the extent such act or omission continues beyond the date when such successor landlord succeeds to Landlord’s interest and ▇▇▇▇▇▇ gives notice of such act or omission);
(ii) subject to any then existing monetary claim or counterclaim which Tenant may have against Landlord (except with respect to any unfunded amounts due and payable as part of Landlord’s Contribution); provided, however, that Tenant shall retain any right to offset or ▇▇▇▇▇ its rental obligations to the extent previously exercised and/or available to Tenant under the terms of this Lease;
(iii) bound by any prepayment of more than one month’s Rent to any prior landlord;
(iv) bound by any obligation to make any payment to Tenant which was required to be made prior to the time such successor landlord succeeded to Landlord’s interest (except with respect to any unfunded amounts due and payable as part of Landlord’s Contribution); provided, however, that Tenant shall retain any right to offset or ▇▇▇▇▇ its rental obligations to the extent previously exercised and/or available to Tenant under the terms of this Lease;
(v) bound by any obligation to perform any work or to make improvements to the Premises except for (x) repairs and maintenance required to be made by Landlord under this Lease, and (y) repairs to the Premises as a condition result of damage by fire or other casualty or a partial condemnation pursuant to the provisions of this Lease, but with respect to repairs referenced in clause (y) only to the extent that such repairs can reasonably be made from the net proceeds of any insurance or condemnation awards, respectively, actually made available to such financingsuccessor landlord; provided, however, that Tenant will not unreasonably withholdshall retain any right to offset or ▇▇▇▇▇ its rental obligations to the extent previously exercised and/or available to Tenant under the terms of this Lease;
(vi) bound by any modification, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunderamendment, or materially adversely affect renewal of this Lease made without successor landlord’s consent (but only to the leasehold interest hereby created or Tenant’s use and enjoyment extent such consent was required under the terms of the PremisesMortgage and Tenant was notified in writing as to the existence of such Mortgage); or
(vii) liable for the repayment of any security deposit or surrender of any letter of credit, unless and until such security deposit actually is paid or increase such letter of credit is actually delivered to such successor landlord.
(c) Tenant shall from time to time within ten (10) days of request from Landlord execute and deliver any documents or instruments that may be reasonably required by any Mortgagee or Lessor to confirm any subordination.
(d) The foregoing notwithstanding, if a Lessor or Mortgagee or any other person or entity shall succeed to the amount rights of Annual Basic Rent Landlord under this Lease, whether through possession or foreclosure action or the delivery of a new lease or deed and Additional Rent payable hereundersuch Lessor, Mortgagee, person or entity is the beneficiary under an SNDA with Tenant, clauses (i) — (vii) of Section 9.1(b) shall not apply and such SNDA shall govern.
Appears in 1 contract
Sources: Deed of Lease (Carlyle Group L.P.)
Subordination and Attornment. This (a) Subject to receipt of a SNDA, this Lease is subject and shall be subordinate to the liens any deed of all mortgagestrust, deeds of trust and mortgage, or other security instruments instrument (each, a “Mortgage”), or any ground lease, master lease, or primary lease (each, a “Primary Lease”), that now or hereafter placed upon the Building or the Building Project covers all or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived part of the Premises (said mortgagesthe mortgagee under any such Mortgage, deeds beneficiary under any such deed of trust, other security instruments, and ground leases being hereinafter or the lessor under any such Primary Lease is referred to herein as a “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “MortgageesLandlord’s Mortgagee”). Any Landlord’s Mortgagee may elect, and at any time, unilaterally, to any and all renewalsmake this Lease superior to its Mortgage, extensions, modificationsPrimary Lease, or refinancings thereof, without any other interest in the Premises by so notifying Tenant in writing. The provisions of this Section shall be self-operative and no further act instrument of the Tenant except as expressly provided hereinsubordination shall be required; provided, however, in confirmation of such subordination, Tenant shall execute and return to Landlord (or such other party designated by Landlord) within ten (10) business days after written request therefor such documentation, in recordable form if required, as a condition precedent Landlord’s Mortgagee may reasonably request to evidence the subordination of this Lease to any particular future such Landlord’s Mortgagee’s Mortgage first encumbering the Building or the Project following the date of this Primary Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant (including a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”agreement) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees thator, if any proceedings are brought for the foreclosure Landlord’s Mortgagee so elects, the subordination of any of the Mortgages, Tenant, if requested such Landlord’s Mortgagee’s Mortgage or Primary Lease to do so by the purchaser at the foreclosure sale and provided that this Lease.
(b) Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to any party succeeding to Landlord’s interest in the purchaserPremises, recognize whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination of lease, or otherwise, upon such party’s reasonable request, and shall execute such agreements confirming such attornment as such party may reasonably request.
(c) Tenant shall not seek to enforce any remedy it may have for any default on the purchaser as part of Landlord without first giving written notice by specifying the landlord default in reasonable detail, to any Landlord’s Mortgagee whose address has been given to Tenant, and affording such ▇▇▇▇▇▇▇▇’s Mortgagee a reasonable opportunity to perform Landlord’s obligations hereunder.
(d) If Landlord’s Mortgagee shall succeed to the interest of Landlord under this Lease, Landlord’s Mortgagee shall not be: (1) liable for any act or omission of any prior lessor (including Landlord); (2) bound by any Minimum Annual Rent or Additional Rent or advance rent which Tenant might have paid for more than one month in advance of the due date thereof to any prior lessor (including Landlord), and make all payments required hereunder such rent shall remain due and owing, notwithstanding such advance payment (provided to the extent Tenant has prepaid rent at the beginning of the Term Tenant shall be entitled to deduct same); (3) bound by any security or advance rental deposit made by Tenant which is not delivered or paid over to Landlord’s Mortgagee and with respect to which Tenant shall look solely to Landlord for refund or reimbursement (subject to right to deduct as set forth in clause (2)); (4) bound by any termination, amendment or modification of this Lease made without Landlord’s Mortgagee’s consent and written approval, except for amendments reflecting options exercised by Tenant set forth herein or those terminations, amendments and modifications permitted to be made by Landlord without Landlord’s Mortgagee’s consent pursuant to the terms of the loan documents between Landlord and Landlord’s Mortgagee; (5) subject to the defenses which Tenant might have against any prior lessor (including Landlord); and (6) subject to the offsets which Tenant might have against any prior lessor (including Landlord), except for those offset rights which (A) are expressly provided in this Lease, (B) relate to periods of time following the acquisition of the Building by Landlord’s Mortgagee, and (C) Tenant has provided written notice to Landlord’s Mortgagee and provided Landlord’s Mortgagee a reasonable opportunity to cure the event giving rise to such new landlord without any deduction offset event. Landlord’s Mortgagee shall have no liability or set-off responsibility under or pursuant to the terms of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or otherwise after it ceases to alter the obligations of Tenant hereunder own an interest in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunder.
Appears in 1 contract
Subordination and Attornment. 30.1 This Lease is Lease, and all rights of Tenant hereunder, are, and shall continue to be, subject and subordinate to in all respects to: (a) all ground leases, overriding leases and underlying leases of the liens of all mortgages, deeds of trust and other security instruments Land and/or the Building now or hereafter placed existing; (b) all mortgages that may now or hereafter affect the Land, the Building and/or any of such leases, whether or not such mortgages shall also cover other land and/or buildings; (c) each and every advance made or hereafter to be made under such mortgages; (d) all renewals, modifications, replacements and extensions of such leases and such mortgages; and (e) all spreaders and consolidations of such mortgages. The leases to which this Lease is, at the time referred to, subject and subordinate pursuant to this Article are herein sometimes called “superior leases,” the mortgages to which this lease is, at the time referred to, subject and subordinate are herein sometimes called “superior mortgages,” the lessor of a superior lease or its successor in interest at the time referred to is sometimes herein called a “lessor” and the mortgagee under a superior mortgage or its successor in interest at the time referred to is sometimes herein called a “mortgagee.” Tenant agrees, with respect to any of the foregoing documents, that no documentation other than this Lease shall be required to evidence such subordination. If any holder of a mortgage shall elect for this Lease to be superior to the lien of its mortgage and shall give written notice thereof to Tenant, then this Lease shall automatically be deemed prior to such mortgage whether this Lease is dated earlier or later than the date of said mortgage or the date of recording thereof. Tenant agrees to execute such reasonable documents as may be further required to evidence such subordination or to make this Lease prior to the lien of any mortgage or deed of trust, as the case may be, and Tenant’s failure to do so within ten (10) days after written demand shall, if Landlord so elects, constitute an Event of Default. Tenant hereby attorns to all successor owners of the Building, whether or not such ownership is acquired as a result of a sale through foreclosure or otherwise.
30.2 If the lessor of a superior lease or the mortgagee of a superior mortgage shall succeed to the rights of Landlord under this Lease, whether through possession or foreclosure action or delivery of a new lease or deed, then, at the request of such party so succeeding to Landlord’s rights (hereinafter sometimes called a “successor landlord”), and upon such successor landlord’s written agreement to accept Tenant’s attornment, Tenant shall attorn to and recognize such successor landlord as Tenant’s landlord under this Lease, and shall promptly execute and deliver any instrument such successor landlord may reasonably request to evidence such attornment. Upon such attornment this Lease shall continue in full force and effect as, or as if it were, a direct lease between such successor landlord and Tenant upon all of the terms, conditions and covenants as are set forth in this Lease and shall be applicable after such attornment, except such successor landlord shall not be (a) liable in any way to Tenant for any act or omission, neglect or default on the part of Landlord under this Lease unless it is of a continuing nature and continues after successor landlord is given written notice thereof and has a reasonable opportunity to cure the same after taking possession of the Property, (b) responsible for any monies owing by or on deposit with Landlord to the credit of Tenant unless such money has been delivered to and received by the successor landlord, (c) subject to any defenses, counterclaims, abatements or offsets that theretofore accrued to Tenant against Landlord except to the extent the basis of such counterclaim, abatement or offset is of a continuing nature and continues after successor landlord is given written thereof and has a reasonable opportunity to cure the same after taking possession of the Property, (d) bound by any amendments, terminations or modifications of this Lease subsequent to such superior lease or superior mortgage, or by any previous prepayment of fixed rent for more than one (1) month (excluding the rent abatement provided for in this Lease), which was not approved in writing by the mortgagee of such superior mortgage or lessor of the superior lease, as applicable, (e) liable to the Tenant beyond the successor landlord’s interest in the Project, (f) responsible for the performance of any work to be done by the Landlord under this Lease to render the Premises ready for occupancy by the Tenant, or (g) required to remove any person occupying the Premises or any part thereof.
30.3 This Lease may not be modified or amended so as to reduce the Base Rent and/or Additional Rent, shorten the Term, or otherwise materially affect the rights of Landlord hereunder, or be canceled or surrendered, without the prior written consent in each instance of the ground lessors and of any superior mortgagees whose mortgages shall require such consent. Any such modification, agreement, cancellation or surrender made without such prior written consent shall be null and void.
30.4 Tenant agrees if this Lease expires or is terminated or canceled for any reason or by any means whatsoever by reason of a default under a ground lease or mortgage, and the ground lessor or mortgagee so elects by written notice to Tenant, this Lease shall automatically be reinstated for the balance of the term that would have remained but for such termination, expiration or cancellation, at the same rental, and upon the same agreements, covenants, conditions, restrictions and provisions herein contained, with the same force and effect as if no such termination, expiration or cancellation had taken place. Tenant covenants to execute and deliver any instrument required to confirm the validity of the foregoing.
30.5 Tenant shall, at such time or times as Landlord may request, upon not less than fifteen (15) days’ prior written request by Landlord, sign and deliver to Landlord an estoppel certificate, which shall be substantially in the form of Exhibit E, attached hereto (or such other commercially reasonable form as may be required by any prospective mortgagee or purchaser of the Project, or any portion thereof), indicating therein any exceptions thereto that may exist at that time, and shall also contain such other information and agreements as may be reasonably requested, it being intended that any such statement delivered pursuant to this Article may be relied upon by Landlord and by any prospective purchaser of all or any portion of the Project, or a holder or prospective holder of any mortgage encumbering the Project, or any portion thereof. Tenant’s failure to deliver such statement within five (5) days after Landlord’s second written request therefor shall constitute an Event of Default (as that term is defined elsewhere in this Lease) and shall conclusively be deemed to be an admission by Tenant of the matters set forth in the request for an estoppel certificate.
30.6 Tenant shall deliver to Landlord prior to the execution of this Lease and thereafter at any time upon Landlord’s request, Tenant’s current audited financial statements, including a balance sheet and profit and loss statement for the most recent prior year (collectively, the “Statements”), which Statements shall accurately and completely reflect the financial condition of Tenant. Landlord shall have the right to deliver the same to any proposed purchaser of the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”)Project, and to any and encumbrancer of all renewals, extensions, modifications, or refinancings thereof, without any further act portion of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following Project. Landlord agrees not to request copies of financial statements more often than once in every twelve-month period, unless required in connection with a proposed sale or financing. Notwithstanding the foregoing, if (i) Tenant is required to file reports under the Securities Exchange Act of 1934, as amended, (ii) Tenant is current in its reporting obligations thereunder, and (iii) the reports required by such act are available to the public, including Landlord, then Tenant shall not be obligated to provide Landlord with financial statements pursuant to this Section 30.6.
30.7 Tenant acknowledges that Landlord is relying on the Statements previously delivered by Tenant to Landlord in its determination to enter into this Lease, and Tenant represents to Landlord, which representation shall be deemed made on the date of this Lease and again on the Commencement Date, that no material change in the financial condition of Tenant, as reflected in the Statements, has occurred since the date Tenant delivered the Statements to any renewals, extensions, modifications, consolidations Landlord. The Statements are represented and replacements thereof, is that Landlord shall obtain for warranted by Tenant to be correct and to accurately and fully reflect Tenant’s true financial condition as of the benefit date of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure submission of any of the Mortgages, Tenant, if requested Statements to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunder.
Appears in 1 contract
Sources: Lease Agreement (Veritone, Inc.)
Subordination and Attornment. 30.1. This Lease is shall be subject and subordinate to the liens lien of all mortgagesany mortgage, deeds deed of trust and other security instruments trust, or lease in which Landlord is tenant now or hereafter placed upon in force against the Building or the Building Project and to all advances made or hereafter to be made upon the security thereof without the necessity of the execution and delivery of any portion thereof and all ground and other underlying leases from which further instruments on the part of Tenant to effectuate such subordination. As of the Execution Date of this Lease, there is no loan encumbering Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and in the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and Property. The automatic subordination to any future mortgage, deed of trust or lease provided for in this Section is expressly conditioned upon the holder of such mortgage, deed of trust or lease, agreeing that as long as no Default occurs under this Lease, the holder of such mortgage, deed of trust or lease will not disturb Tenant’s rights of possession under this Lease.
30.2. Notwithstanding the foregoing, Tenant shall execute and all renewals, extensions, modifications, deliver upon demand such further instrument or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the instruments evidencing such subordination of this Lease to the lien of any particular future Mortgage first encumbering the Building such mortgage or the Project following the date mortgages or deeds of this Lease and to trust or lease in which Landlord is tenant as may be required by Landlord. If any renewalssuch mortgagee, extensionsbeneficiary or landlord under a lease wherein Landlord is tenant (each, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDAMortgagee”) from the lessor or lender under such Mortgage. If requested by Landlordso elects, however, this Lease shall be deemed prior in lien to any such lease, mortgage, or deed of trust upon or including the Premises regardless of date and Tenant shall promptly execute a statement in writing to such effect at Landlord’s request. If Tenant fails to execute any certificate document required from Tenant under this Section within ten (10) days after written request therefor, Tenant hereby constitutes and appoints Landlord or other its special attorney-in-fact to execute and deliver any such document confirming such subordinationor documents in the name of Tenant. Such power is coupled with an interest and is irrevocable. For the avoidance of doubt, “Mortgagees” shall also include historic tax credit investors and new market tax credit investors.
30.3. Upon written request of Landlord and opportunity for Tenant to review, Tenant agrees thatto execute any Lease amendments not materially increasing Tenant’s obligations or reducing Tenant’s rights under the terms of this Lease, if required by a Mortgagee incident to the financing of the real property of which the Premises constitute a part.
30.4. In the event any proceedings are brought for foreclosure, or in the foreclosure of any event of the Mortgagesexercise of the power of sale under any mortgage or deed of trust made by Landlord covering the Premises, Tenant, if requested to do so by Tenant shall at the election of the purchaser at the such foreclosure or sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that upon any such foreclosure or termination or other proceeding is prosecuted or completed. sale and recognize such purchaser as Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither under this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderLease.
Appears in 1 contract
Subordination and Attornment. This Provided that the holder of any mortgage encumbering the Premises or any ground or underlying lease delivers to Tenant a Subordination, Non-Disturbance, and Attornment Agreement (“SNDA”) as described below, this Lease is shall be subject and subordinate at all times to the terms of such ground or underlying lease which now exists or may hereafter be executed affecting the Premises under which Landlord shall claim, and to the liens of all mortgages, deeds of trust and other security instruments such mortgage in any amount or amounts whatsoever now or hereafter placed upon existing encumbering the Building or the Building Project or any portion thereof Premises, and to all ground modifications, renewals, and other underlying leases from which replacements thereto. If Landlord’s interest in the Premises is derived (said mortgagesacquired by any ground lessor, deeds mortgagee, or purchaser at a foreclosure sale or transfer in lieu thereof, Tenant shall attorn to the transferee of trustor successor to Landlord’s interest in the Premises and recognize such transferee or successor as Landlord under this Lease in accordance with the applicable SNDA. Notwithstanding the foregoing, other security instrumentsany mortgagee under any mortgage shall have the right at any time to subordinate any such mortgage to this Lease on such terms and subject to such conditions as the mortgagee in its discretion may consider appropriate. Landlord represents and warrants to Tenant that, and as of the Effective Date of this Lease, no mortgages or ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent encumber Landlord’s title to the Property. Any subordination of this Lease to a mortgage or any particular future Mortgage first encumbering ground lease shall be conditioned on Tenant obtaining a SNDA from each and every mortgagee and ground lessor, such SNDA to be in form and content reasonably acceptable to Tenant and the Building or applicable mortgagee and ground lessor. Tenant agrees that an acceptable form of SNDA is attached hereto and made a part hereof as Exhibit “G.” Such form is not intended to be the Project following only form that would be acceptable to Tenant and/or deemed to be reasonable. Any such SNDA will include a provision to the date of effect that casualty and condemnation proceeds will be utilized to the extent required in this Lease and not to pay down the applicable loan to Landlord or for any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenantpurpose, provided that (i) Tenant shall pay all costs incurred by at the time that Landlord in obtaining such SNDAdelivers the applicable SNDA to Tenant: (x) Tenant’s net worth exceeds $150,000,000.00; and (y) no Event of Default is then-continuing, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor at the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premisescasualty or condemnation, or increase the amount no Event of Annual Basic Rent and Additional Rent payable hereunderDefault is then-continuing.
Appears in 1 contract
Sources: Lease Agreement (Office Depot Inc)
Subordination and Attornment. 26.01 This Lease is subject to and subordinate to the liens of all mortgages, deeds of trust and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, or other security instrumentsinstruments (including any deed of trust and mortgage securing bonds and all indentures supplemental thereto), whether now in existence or subsequently placed on the Real Property and to all underlying, superior, ground or land leases, master leases being or primary leases (all of which are hereinafter referred to collectively as “Mortgages” and "Mortgage") which may now or hereafter encumber the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time Real Property of which the Leased Premises are a part (the mortgagee under any such Mortgage or the lessor under any such lease is referred to time being hereinafter called “Mortgagees”herein as "Landlord's Mortgagee"), and to all or any declaration of covenants regarding maintenance or use of any areas contained in any portion of the Building , and all advances, renewals, extensions, modifications, consolidations, replacements and extensions thereof of such mortgages and leases and declaration of covenants which may now or refinancings hereafter affect the Leased Premises or any part thereof. This clause shall be self-operative and no further instrument of subordination shall be required in order for the same to be effective. Notwithstanding the foregoing, without any further act Tenant hereby appoints the Landlord, the agent, or attorney of the Tenant except coupled with an interest for the purpose of executing any acknowledgment or agreement required by Landlord's Mortgagee. Tenant, hereby attorns to all successor owners of the Building, whether or not such ownership is acquired as expressly provided herein; provideda result of a sale, however, through foreclosure of a condition precedent Mortgage or otherwise. If Landlord's Mortgagee shall elect to have this Lease superior to the subordination lien of its Mortgage, and shall give written notice thereof to Tenant, this Lease shall be deemed prior to such Mortgage, whether this Lease is dated prior or subsequent to the date of said Mortgage or the date of recording thereof. With respect to any particular future Mortgage first encumbering the Building subsequent to the Commencement Date of the Lease, upon Tenant's request, Landlord will use its good faith efforts to cause Landlord's Mortgagee to agree that so long as Tenant is not in default of its obligations under the Lease, the Lease will not be terminated and Tenant's possession of the Leased Premises will not be disturbed by the termination or the Project following the date foreclosure, or proceeds for enforcement, of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunder.
Appears in 1 contract
Sources: Office Lease (Rancher Energy Corp.)
Subordination and Attornment. Section 21 of the Lease is deleted in its entirety and the following provision is substituted: This Lease is and all rights of Tenant hereunder are and shall be subject and subordinate in all respects to: (i) all present and future ground leases, operating leases, superior leases, overriding leases and underlying leases and grants of term of the Center and the Building or any portion thereof (collectively, including the applicable items set forth in Subdivision (iv) of this Section, the "Superior Lease", and the party then exercising the rights of landlord thereunder being referred to herein as the liens of "Superior Lessor"); (ii) all mortgagesmortgages and building loan agreements, deeds of trust including leasehold mortgages and other security instruments spreader and consolidation agreements, which may now or hereafter placed upon affect the Center, the Building or the Building Project or any portion thereof Superior Lease (collectively, including the applicable items set forth in Subdivisions (iii) and all ground and other underlying leases from which Landlord’s interest is derived (said mortgagesiv) of this Section, deeds of trust, other security instrumentsthe "Superior Mortgage", and ground leases the party then exercising the rights of mortgagee, beneficiary or secured party thereunder being hereinafter referred to herein as “Mortgages” the "Superior Mortgagee") whether or not the Superior Mortgage shall also cover other lands or buildings or leases except that a mortgage on the Center only shall not be a Superior Mortgage so long as there is in effect a Superior Lease which is not subordinate to such mortgage: (iii) each advance made or to be made under the Superior Mortgage; and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and (iv) all renewals, extensions, modifications, or refinancings thereofreplacements, without any further act supplements, substitutions and extensions of the Tenant except as expressly provided herein; provided, however, a condition precedent to Superior Lease and the subordination Superior Mortgage and all spreaders and consolidations of the Superior Mortgage. The provisions of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date Section shall be self-operative and no further instrument of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord subordination shall obtain for the benefit be required. In confirmation of Tenant a commercially reasonable such subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute and deliver, at its own cost and expense, any certificate instrument, in recordable form if requested, that Landlord, the Superior Lessor or other document confirming the Superior Mortgagee may reasonably request to evidence such subordination; and if Tenant fails to execute, acknowledge or deliver any such instrument, in reasonable form, within 10 business days after request therefor, Tenant hereby irrevocably constitutes and appoints Landlord as Tenant's attorney-in-fact, coupled with an interest, to execute, acknowledge and deliver any such instruments for and on behalf of Tenant. Tenant agrees thatThe Superior Mortgagee may elect that this Lease shall have priority over its Superior Mortgage and, if any proceedings are brought for upon notification by the foreclosure of any of the Mortgages, Superior Mortgagee to Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior have priority over such Superior Mortgage, whether this Lease is dated prior to such Mortgages without regard or subsequent to the respective dates of execution and/or recordation date of such Mortgages Superior Mortgage. If, at any time prior to the termination of this Lease, the Superior Lessor or the Superior Mortgagee or any person, or the Superior Lessor's or Superior Mortgagee's or such person's successors or assigns (the Superior Lessor, Superior Mortgagee and any such person or successor or assign being herein collectively referred to as "Successor Landlord") shall succeed to the rights of Landlord under this Lease through possession or foreclosure or delivery of a new lease or deed or otherwise, Tenant agrees, at the election and upon request of any such Successor Landlord, to fully and completely attorn to and recognize any such Successor Landlord, as Tenant's landlord under this Lease upon the then-executory terms of this Lease. The foregoing provisions of this Section shall: (i) inure to the benefit of any such Successor Landlord; (ii) apply notwithstanding that, as a matter of law, this Lease may terminate upon the termination of the Superior Lease; (iii) be self-operative upon any such demand; and (iv) require no further instrument to give effect to said provisions. Tenant, however, upon demand of any such Successor Landlord agrees to execute, from time to time, instruments to evidence and confirm the foregoing provisions of this Section, satisfactory to any such Successor Landlord, acknowledging such attornment and setting forth the terms and conditions, of its tenancy. Upon such attornment this Lease shall continue in full force and effect as a direct lease between such Successor Landlord and Tenant upon all of the then-executory terms of this Lease except that such Successor Landlord shall not be: (i) liable for damages for any previous act or omission or negligence of Landlord under this Lease; (ii) subject to any counterclaim, defense or offset, not expressly provided for in this Lease and thereafter such Mortgagee asserted with reasonable promptness, which theretofore shall have accrued to Tenant against Landlord; (iii) obligated to perform any Leasehold Improvements or other work with respect to the same rights as to Premises; (iv) bound by any previous modification or amendment of this Lease or by any previous prepayment of more than one month's Rent, unless such modification or prepayment shall have been approved in writing by the Superior Lessor or the Superior Mortgagee through or by reason of which the Successor Landlord shall have succeeded to the rights of Landlord under this Lease. Promptly following written request from Tenant, Landlord shall undertake, and shall use reasonable efforts (exclusive of the payment of any monetary consideration) to obtain, from all Superior Mortgagees and Superior Lessors, one or more agreements of nondisturbance in favor of the Tenant, such that, if, at any time prior to the termination of this Lease, the Superior Lessor or the Superior Mortgagee or any person, or the Superior Lessor's or Superior Mortgagee's or such person's successors or assigns (the Superior Lessor, Superior Mortgagee and any such person or successor or assign being herein collectively referred to as it would have had were "Successor Landlord") shall succeed to the rights of Landlord under this Lease executed through possession or foreclosure or delivery of a new lease or deed or otherwise, then Tenant's rights under this Lease shall not be disturbed and delivered before the execution of such Mortgages. If, shall remain in connection with obtaining financing full force and effect for the BuildingTerm so long as Tenant performs and observes all of the terms, a Mortgagee shall request reasonable modifications in covenants and conditions of this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay be performed or defer its consent thereto, observed by it and provided that Tenant agrees to attorn to the Successor Landlord upon any such modifications do not materially adversely increase foreclosure or sale or re-leasing and recognize such Successor Landlord as the obligations Landlord under this Lease. Such agreement or agreements of nondisturbance shall take such form as Tenant hereunderand such Superior Mortgagees or Superior Lessors shall agree, but Landlord's obligation shall be limited to obtaining such agreements of nondisturbance in the form or materially adversely affect the leasehold interest hereby created forms customarily agreed to by such Superior Mortgagees or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunder.Superior
Appears in 1 contract
Sources: Industrial Gross Lease Agreement (Asset Acceptance Capital Corp)
Subordination and Attornment. This If at the execution of this Lease is there are any existing Mortgages against the Leased Premises, Landlord shall promptly cause each Mortgagee to execute a non-disturbance agreement providing that, among other things, (a) the use and occupancy by Tenant of the Leased Premises shall not be disturbed and all of Tenant's other rights under this Lease shall be recognized unless and until Tenant shall breach any provision hereof and this Lease or Tenant's right to possession hereunder shall have been terminated in accordance with the provisions of this Lease; (b) in the event of any foreclosure or other suit, public or private sale, or in the event of a sale in lieu of foreclosure, the Mortgagee will hold or offer and sell the property covered thereby subject to all of the terms and conditions of this Lease; and (c) fire insurance proceeds and condemnation awards will be applied towards restoration of the Leased Premises. Before Landlord shall have the right to subject and subordinate to the liens of all mortgages, deeds of trust and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to the lien of any particular future Mortgage first encumbering hereafter upon Landlord's interest in the Building or the Project following the date of this Lease and to any renewalsLeased Premises, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain have first secured for the Tenant's benefit of Tenant a commercially reasonable subordination, written non-disturbance agreement, in the form acceptable to Tenant, and attornment agreement (“SNDA”) from Tenant will then execute and deliver an instrument subjecting this Lease to the lessor or lender under lien of any such Mortgage. If requested by Landlord, howeverthe holder of any Mortgage covering the Leased Premises or if the purchaser at any foreclosure or at any sale under a power of sale contained in any Mortgage shall so request, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, such Mortgagee or purchaser and shall recognize the such Mortgagee or purchaser as the landlord under this Lease for the balance then remaining of the term of this Lease, subject to all terms of this Lease; provided, however, that Tenant shall not be required to attorn to such Mortgagee or purchaser unless and until Tenant and such Mortgagee or purchaser shall have entered into a mutually satisfactory non-disturbance agreement. If Landlord defaults in making payment under any Mortgage, or if Landlord is in breach or in default of any Mortgage in any respect, and any Mortgagee makes demand upon Tenant that Tenant pay Rent to such Mortgagee, Tenant shall have the right, but not the duty, to make all Rent payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate thereafter becoming due under this Lease or to alter the obligations Mortgagee in lieu of Landlord, and payments so made shall discharge the obligation of Tenant hereunder in respecting the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder payment of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderRent.
Appears in 1 contract
Sources: Lease Agreement (Independent Research Agency for Life Insurance Inc)
Subordination and Attornment. This Lease is subject (a) Landlord represents and subordinate warrants to the liens Tenant that, as of all mortgages, deeds of trust and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease, Landlord is the fee simple owner of the Premises, and that, as of the date of this Lease, there are not any mortgages or ground leases or underlying leases with respect to the Premises except for the Bank of America Mortgage. Tenant’s rights under this Lease shall be subject and subordinate at all times to the lien of the Bank of America Mortgage and to any all renewals, extensions, modifications, consolidations amendments, consolidations, replacements and replacements extensions thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided Provided that Tenant has been previously is provided with an SNDA duly executed by the holder of any future mortgage or the Mortgagelandlord pursuant to any ground lease or underlying lease or future ground lease or underlying lease affecting the Premises, then (i) Tenant’s rights under this Lease shall attorn be subject and subordinate at all times to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off lien of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law future mortgage or regulationmortgages, or ground lease or underlying lease which may now or hereafter in effectaffect or be placed from time to time upon the Premises and to all renewals, which may givemodifications, or purport to giveamendments, Tenant any right to terminate this Lease or to alter the obligations consolidations, replacements and extensions of Tenant hereunder in the event that any such foreclosure mortgages or termination ground or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counselunderlying leases; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining Tenant will execute and deliver, within ten (10) days after request by Landlord, and SNDA that is submitted by Landlord in confirmation of such subordination. “SNDA. Notwithstanding anything contained herein ” means a subordination, non-disturbance, and attornment agreement, in a commercially reasonable form which is reasonably acceptable to Tenant, from a holder of any Mortgage (except for the contrary, Bank of America Mortgage) and the landlord of any Mortgagee may at any time subordinate ground lease or underlying lease existing as of the lien of its Mortgages to the operation and effect date of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunderLease, or materially adversely affect the leasehold interest hereby created or Tenant’s use thereafter in effect, and enjoyment of affecting the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunder.
Appears in 1 contract
Subordination and Attornment. This Lease is subject and all of Tenant’s rights hereunder shall be subordinate to the liens of all mortgages, deeds of trust and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground Encumbrances, to all renewals, modifications, consolidations, replacements and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”)extensions thereof, and to any and all renewalsadvances made or hereafter made on the security thereof or Landlord’s interest therein, extensionsunless an Encumbrancer requires in writing that this Lease be superior to its Encumbrance. If any proceeding is brought for the foreclosure of any such Encumbrance (or if any ground lease is terminated), modificationsand if requested by such purchaser or Encumbrancer, or refinancings thereofTenant (i) shall attorn, without any further act of the Tenant except as expressly provided herein; provideddeductions or set-offs whatsoever, however, a condition precedent to the Encumbrancer or purchaser or any successors thereto upon any foreclosure sale or deed in lieu thereof (or to the ground lessor), and (ii) shall recognize such purchaser or Encumbrancer as the lessor under this Lease, provided such purchaser or Encumbrancer accepts this Lease and does not disturb Tenant’s occupancy, so long as Tenant is not then in default under this Lease beyond the expiration of any applicable period for cure provided in this Lease. Landlord’s interest herein may be assigned as security at any time to any Encumbrancer. Within ten (10) business days after request by Landlord or any Encumbrancer, Tenant shall execute such further commercially reasonable instruments or assurances which are consistent with the provisions of this Article 21 to evidence or confirm the subordination or superiority of this Lease to any particular such Encumbrance. Tenant waives the provisions of any Requirement which may give or purport to give Tenant any right or election to terminate or otherwise adversely affect this Lease and the obligations of the tenant hereunder in the event of any foreclosure proceeding or sale. Tenant agrees with Encumbrancer that if Encumbrancer or any foreclosure sale purchaser shall succeed to the interest of Landlord under this Lease, Encumbrancer shall not be (i) liable for any action or omission of any prior Landlord under this Lease (but shall cure continuing defaults of “Landlord” under this Lease provided that such defaults are susceptible to cure by Encumbrancer), or (ii) subject to any offsets or defenses which Tenant might have against any prior Landlord, or (iii) bound by any Rent which Tenant might have paid for more than the current month to any prior Landlord, or (iv) liable for any Security Deposit not actually received by such Encumbrancer, or (v) bound by any future Mortgage first encumbering modification of this Lease not consented to by such Encumbrancer. Tenant’s agreement to subordinate this Lease to the lien of any Encumbrance hereafter in force against the Building or the Project following or any portion thereof is expressly conditioned upon the date Encumbrancer agreeing that in the event of foreclosure or deed in lieu of foreclosure or other exercise of remedies under such Encumbrance or conveyance in lieu thereof and so long as Tenant is not in default beyond any applicable cure period, this Lease shall be recognized and Tenant’s occupancy shall not be disturbed pursuant to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of Tenant a commercially reasonable form of subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation of such Mortgages and this Lease and thereafter such Mortgagee shall have the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderagreement.
Appears in 1 contract
Sources: Office Lease (Jamba, Inc.)
Subordination and Attornment. 21.1 This Lease is subject and at Landlord's option will be subordinate to the liens of all mortgagesany mortgage, deeds deed of trust and other security instruments related documents now or hereafter placed upon the Building or the Building Project or any portion thereof and Complex (including all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”advances made thereunder), and to any and all amendments, renewals, extensions, modificationsreplacements, or refinancings thereofrestatements thereof (collectively, without any further act of the "Mortgage"). Tenant except as expressly provided hereinagrees that no documentation other than this Lease is required to evidence such subordination; provided, however, a condition precedent to the subordination of this Lease to any particular future Mortgage first encumbering the Building or the Project following the date of this Lease and to any renewals, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for provide to Tenant, on or before the benefit of Tenant Commencement Date, a commercially reasonable subordination, non-disturbance disturbance, subordination and attornment agreement (“"SNDA”") from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure holder of any of Mortgage ("Mortgagee") now or then encumbering the MortgagesBuilding, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, recognize the purchaser as the landlord under this Lease, and make all payments required hereunder to such new landlord without any deduction or set-off of any kind whatsoever (except as provided in such SNDA). Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give, or purport to give, Tenant any right to terminate this Lease or to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completedMortgagee's standard SNDA form. Landlord shall use commercially reasonable efforts to provide Tenant with an also request a SNDA from any Mortgagee hereinafter encumbering the current holder of Building, in such future Mortgagee's standard form.
21.2 If any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited Mortgagee elects to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither have this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein superior to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages Mortgage and gives notice to Tenant, this Lease will be deemed prior to such Mortgage whether this Lease is dated prior or subsequent to the operation and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard to the respective dates of execution and/or recordation date of such Mortgages Mortgage or the date of recording thereof.
21.3 In confirmation of subordination or superior position, as the case may be, Tenant will execute such documents (including any SNDA) as may be required by Mortgagee and this Lease if it fails to do so within 10 days after demand, Tenant hereby irrevocably appoints Landlord as Tenant's attorney-in-fact and thereafter such Mortgagee shall have the same rights as in Tenant's name, place, and stead, to this Lease as it would have had were this Lease executed and delivered before the execution do so.
21.4 Tenant hereby attorns to all successor owners of such Mortgages. If, in connection with obtaining financing for the Building, whether such ownership is acquired by sale, foreclosure of a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunderMortgage, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment of the Premises, or increase the amount of Annual Basic Rent and Additional Rent payable hereunderotherwise.
Appears in 1 contract
Sources: Office Lease (Kroll Inc)
Subordination and Attornment. This Lease is subject and Landlord shall have the right to subordinate to the liens of all mortgages, deeds of trust and other security instruments now or hereafter placed upon the Building or the Building Project or any portion thereof and all ground and other underlying leases from which Landlord’s interest is derived (said mortgages, deeds of trust, other security instruments, and ground leases being hereinafter referred to as “Mortgages” and the mortgagees, beneficiaries, secured parties, and ground lessors thereunder from time to time being hereinafter called “Mortgagees”), and to any and all renewals, extensions, modifications, or refinancings thereof, without any further act of the Tenant except as expressly provided herein; provided, however, a condition precedent to the subordination of this Lease to any particular existing future Mortgage first ground Lease, deed of trust or mortgage encumbering the Building Demised Premises (a "mortgage") and advances made on the security thereof and any renewals, modifications, consolidations, replacements or extensions thereof, whenever made or recorded. Land▇▇▇▇'▇ ▇ight to obtain such a subordination is subject to Landlord's providing Tenant with a written Subordination, Non-disturbance and Attornment Agreement from the Project following ground lessor, beneficiary or mortgagee wherein Tena▇▇'▇ ▇ight to peaceable possession of the date Demised Premises during the Lease Term shall not be disturbed if Tenant pays the Rent and performs all of Tenant's obligations under this Lease and to any renewalsis not otherwise in default, extensions, modifications, consolidations and replacements thereof, is that Landlord shall obtain for the benefit of in which case Tenant a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”) from the lessor or lender under such Mortgage. If requested by Landlord, however, Tenant shall promptly execute any certificate or other document confirming such subordination. Tenant agrees that, if any proceedings are brought for the foreclosure of any of the Mortgages, Tenant, if requested to do so by the purchaser at the foreclosure sale and provided that Tenant has been previously provided with an SNDA executed by the holder of the Mortgage, shall attorn to the purchaser, transferee of or successor to Land▇▇▇▇'▇ ▇nterest in the Demised Premises and recognize the purchaser transferee or successor as the landlord Landlord under this Lease, and make further providing that such lessor, beneficiary or mortgagee shall at all payments required hereunder times recognize Tena▇▇'▇ ▇ights under this Lease, including making insurance and condemnation proceeds available to such new landlord without any deduction Landlord and/or Tenant for reconstruction or set-off repair of any kind whatsoever (except the Demised Premises after a casualty or condemnation so long as this Lease is not terminated by Landlord or Tenant as provided in such SNDA)Articles 8 or 9 hereof. Tenant waives the provisions of If any law ground lessor, beneficiary or regulation, now or hereafter in effect, which may give, or purport mortgagee elects to give, Tenant any right to terminate have this Lease or superior to alter the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed. Landlord shall use commercially reasonable efforts to provide Tenant with an SNDA from the current holder of any Mortgages upon request by Tenant, provided that (i) Tenant shall pay all costs incurred by Landlord in obtaining such SNDA, including but not limited to any fees or charges from Landlord’s lender or such lender’s counsel; and (ii) neither this Lease nor the obligations of either party hereunder shall be conditional upon the obtaining of such SNDA. Notwithstanding anything contained herein to the contrary, any Mortgagee may at any time subordinate the lien of its Mortgages to the operation ground lease, deed of trust or mortgage and effect of this Lease without obtaining the Tenant’s consent thereto, by giving the gives Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such Mortgages without regard superior to the respective dates ground lease, deed of execution and/or recordation of such Mortgages and trust or mortgage whether this Lease and thereafter such Mortgagee shall have is dated prior or subsequent to the same rights as to this Lease as it would have had were this Lease executed and delivered before the execution of such Mortgages. If, in connection with obtaining financing for the Building, a Mortgagee shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not materially adversely increase the obligations of Tenant hereunder, or materially adversely affect the leasehold interest hereby created or Tenant’s use and enjoyment date of the Premisesground lease, deed of trust or increase mortgage or the amount date of Annual Basic Rent and Additional Rent payable hereunderrecording thereof.
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