Common use of Acceptable Leases Clause in Contracts

Acceptable Leases. (a) Each lease that is a Borrowing Base Property or a portion thereof, shall at all times be an Acceptable Lease; (b) within ten days after receipt of request by the Administrative Agent, the applicable Loan Party shall use commercially reasonable efforts to obtain from each lessor related to each Acceptable Lease and furnish to the Administrative Agent the estoppel certificate of such lessor stating the date through which rent has been paid and whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any; (c) promptly execute, acknowledge and deliver to the Administrative Agent such instruments as may be required to permit the Administrative Agent to cure any default under any Acceptable Lease or permit the Administrative Agent to take such other action required to enable the Administrative Agent to cure or remedy the matter in default and preserve the security interest of the Administrative Agent under the Loan Documents with respect to the applicable Acceptable Lease and each Loan Party irrevocably appoints the Administrative Agent as its true and lawful attorney-in-fact to do, in its name or otherwise, any and all acts and to execute any and all documents that are necessary to preserve any rights of such Loan Party under or with respect to each Acceptable Lease, including, without limitation, the right to effectuate any extension or renewal of such Acceptable Lease, or to preserve any rights of such Loan Party whatsoever in respect of any part of such Acceptable Lease (and the above powers granted to the Administrative Agent are coupled with an interest and shall be irrevocable); (d) the actions or payments of the Administrative Agent to cure any default by any Loan Party under any Acceptable Lease shall not remove or waive, as between such Loan Party and the Administrative Agent, the default that occurred under this Agreement by virtue of the default by a Loan Party under such Acceptable Lease. All sums expended by the Administrative Agent to cure any such default in accordance with this Section 6.16, shall be paid by the applicable Loan Party to the Administrative Agent, upon demand, with interest on such sum at the rate set forth in this Agreement from the date such sum is expended to and including the date the reimbursement payment is made to the Administrative Agent. All such indebtedness shall be deemed to be Obligations secured by the Security Documents; (e) if the applicable Loan Party shall default in the performance or observance of any term, covenant, or condition of any Acceptable Lease on the part of such Loan Party and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants, and conditions of such Acceptable Lease on the part of such Loan Party to be performed or observed on behalf of such Loan Party and subject to the rights of Tenants under the Acceptable Leases, the Administrative Agent shall have the right to enter all or any portion of the applicable Real Property at such times and in such manner as the Administrative Agent deems necessary, to prevent or to cure any such default, to the end that the rights of such Loan Party in, to, and under such Acceptable Lease shall be kept unimpaired and free from default. If the lessor under any Acceptable Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereon; and (f) notwithstanding anything to the contrary contained in the Loan Documents with respect to any Acceptable Lease: (i) the Lien of the related Mortgage attaches to all of such Loan Party’s rights and remedies at any time arising under or pursuant to subsection 365(h) of the Bankruptcy Code, including, without limitation, all of the Loan Party’s rights, as lessee, to remain in possession of any applicable Acceptable Lease; (ii) each Loan Party shall not, without the Administrative Agent’s prior written consent, elect to treat any Acceptable Lease as terminated under subsection 365(h)(l)(A)(l) of the Bankruptcy Code. Any such election made without the Administrative Agent’s prior written consent shall be void; (iii) as security for the Obligations, each Loan Party unconditionally assigns, transfers and sets over to the Administrative Agent all of such Loan Party’s claims and rights to the payment of damages arising from any rejection of any Acceptable Lease by any lessor under such Acceptable Lease under the Bankruptcy Code. The Administrative Agent and each Loan Party shall proceed jointly or in the name of such Loan Party in respect of any claim, suit, action or proceeding relating to the rejection of any Acceptable Lease, including, without limitation, the right to file and prosecute any proofs of claim, complaints, motions, applications, notices and other documents in any case in respect of any ground lessor, or air rights lessor, as applicable, under the Bankruptcy Code. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until all of the Obligations shall have been satisfied and discharged in full. Any amounts received by the Administrative Agent or any Loan Party as damages arising out of the rejection of any Acceptable Lease as aforesaid shall be applied to all reasonable costs and expenses of the Administrative Agent (including, without limitation, reasonable attorney’s fees and costs) incurred in connection with the exercise of any of its rights or remedies in accordance with the applicable provisions of the Loan Documents; (iv) if, pursuant to subsection 365(h) of the Bankruptcy Code, any Loan Party seeks to offset, against the rent reserved in any Acceptable Lease, the amount of any damages caused by the nonperformance by the lessor of any of its obligations thereunder after the rejection by such lessor of such Acceptable Lease under the Bankruptcy Code, then such Loan Party shall not effect any offset of the amounts so objected to by the Administrative Agent. If the Administrative Agent has failed to object as aforesaid within ten days after notice from the Loan Party in accordance with the first sentence of this subsection, the Loan Party may proceed to offset the amounts set forth in such Loan Party’s notice; and (v) if any action, proceeding, motion or notice shall be commenced or filed in respect of any lessor of all or any part of any Acceptable Lease in connection with any case under the Bankruptcy Code, the Administrative Agent and the Loan Parties shall cooperatively conduct and control any such litigation with counsel agreed upon between the Loan Parties and the Administrative Agent in connection with such litigation. Each Loan Party shall, upon demand, pay to the Administrative Agent all reasonable costs and expenses (including reasonable attorneys’ fees and costs) actually paid or actually incurred by the Administrative Agent in connection with the cooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be Obligations secured by the Lien of the Mortgages.

Acceptable Leases. (a) Each lease that is a Borrowing Base Property or a portion thereof, shall at all times be an Acceptable Lease; ; (b) within ten days after receipt of request by the Administrative Agent, the applicable Loan Party shall use commercially reasonable efforts to obtain from each lessor related to each Acceptable Lease and furnish to the Administrative Agent the estoppel certificate of such lessor stating the date through which rent has been paid and whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any; ; (c) promptly execute, acknowledge and deliver give notice to the Administrative Agent such instruments as may be required to permit the Administrative Agent to cure of any event or occurrence that, with notice or passage of time or both, would constitute an event of default under any Acceptable Lease or permit the Administrative Agent to take such other action required to enable the Administrative Agent to cure or remedy the matter in default and preserve the security interest of the Administrative Agent under the Loan Documents with respect to the applicable Acceptable Lease and each Loan Party irrevocably appoints the Administrative Agent as its true and lawful attorney-in-fact to do, in its name or otherwise, any and all acts and to execute any and all documents that are necessary to preserve any rights of such Loan Party under or with respect to each Acceptable Lease, including, without limitation, the right to effectuate any extension or renewal of such Acceptable Lease, or to preserve any rights of such Loan Party whatsoever in respect of any part of such Acceptable Lease (and the above powers granted to the Administrative Agent are coupled with an interest and shall be irrevocable); (d) the actions or payments of the Administrative Agent to cure any default by any Loan Party under any Acceptable Lease shall not remove or waive, as between such Loan Party and the Administrative Agent, the default that occurred under this Agreement by virtue of the default by a Loan Party under such Acceptable Lease. All sums expended by the Administrative Agent to cure any such default in accordance with this Section 6.16, shall be paid by the applicable Loan Party to the Administrative Agent, upon demand, with interest on such sum at the rate set forth in this Agreement from the date such sum is expended to and including the date the reimbursement payment is made to the Administrative Agent. All such indebtedness shall be deemed to be Obligations secured by the Security Documents; (e) if the applicable Loan Party shall default in the performance or observance of any term, covenant, or condition of any Acceptable Lease on the part of such Loan Party and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants, and conditions of such Acceptable Lease on the part of such Loan Party to be performed or observed on behalf of such Loan Party and subject to the rights of Tenants under the Acceptable Leases, the Administrative Agent shall have the right to enter all or any portion of the applicable Real Property at such times and in such manner as the Administrative Agent deems necessary, to prevent or to cure any such default, to the end that the rights of such Loan Party in, to, and under such Acceptable Lease shall be kept unimpaired and free from default. If the lessor under any Acceptable Lease shall deliver promptly furnish to the Administrative Agent a copy of any notice of default under such given or received by any Loan Party pursuant to any Acceptable Lease; (d) upon the Administrative Agent’s reasonable written request and at reasonable intervals, then such notice unless an Event of Default shall constitute full protection have occurred and be continuing, in which case, upon written request at any time, provide to the Administrative Agent for any action taken information or omitted materials relating to be taken by such Acceptable Lease and evidencing the Administrative Agent, in good faith, in reliance thereonapplicable Loan Party’s due observance and performance of its material obligations thereunder; and (e) [intentionally omitted]; and (f) notwithstanding anything to the contrary contained in the Loan Documents with respect to any Acceptable Lease: (i) the Lien of the related Mortgage attaches to all of such Loan Party’s rights and remedies at any time arising under or pursuant to subsection 365(h) of the Bankruptcy Code, including, without limitation, all of the Loan Party’s rights, as lessee, to remain in possession of any applicable Acceptable Lease; [intentionally omitted]; (ii) each Loan Party shall not, without the Administrative Agent’s prior written consent, elect to treat any Acceptable Lease as terminated under subsection 365(h)(l)(A)(l) of the Bankruptcy Code. Any such election made without the Administrative Agent’s prior written consent shall be void; (iii) as security for the Obligations, each Loan Party unconditionally assigns, transfers and sets over to the Administrative Agent all of such Loan Party’s claims and rights to the payment of damages arising from any rejection of any Acceptable Lease by any lessor under such Acceptable Lease under the Bankruptcy Code. The Administrative Agent and each Loan Party shall proceed jointly or in the name of such Loan Party in respect of any claim, suit, action or proceeding relating to the rejection of any Acceptable Lease, including, without limitation, the right to file and prosecute any proofs of claim, complaints, motions, applications, notices and other documents in any case in respect of any ground lessor, or air rights lessor, as applicable, under the Bankruptcy Code. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until all of the Obligations shall have been satisfied and discharged in full. Any amounts received by the Administrative Agent or any Loan Party as damages arising out of the rejection of any Acceptable Lease as aforesaid shall be applied to all reasonable costs and expenses of the Administrative Agent (including, without limitation, reasonable attorney’s fees and costs) incurred in connection with the exercise of any of its rights or remedies in accordance with the applicable provisions of the Loan Documents; (iv) if, pursuant to subsection 365(h) of the Bankruptcy Code, any Loan Party seeks to offset, against the rent reserved in any Acceptable Lease, the amount of any damages caused by the nonperformance by the lessor of any of its obligations thereunder after the rejection by such lessor of such Acceptable Lease under the Bankruptcy Code, then such Loan Party shall not effect any offset of the amounts so objected to by the Administrative Agent. If the Administrative Agent has failed to object as aforesaid within ten days after notice from the Loan Party in accordance with the first sentence of this subsection, the Loan Party may proceed to offset the amounts set forth in such Loan Party’s notice; and (v) if any action, proceeding, motion or notice shall be commenced or filed in respect of any lessor of all or any part of any Acceptable Lease in connection with any case under the Bankruptcy Code, the Administrative Agent and the Loan Parties shall cooperatively conduct and control any such litigation with counsel agreed upon between the Loan Parties and the Administrative Agent in connection with such litigation. Each Loan Party shall, upon demand, pay to the Administrative Agent all reasonable costs and expenses (including reasonable attorneys’ fees and costs) actually paid or actually incurred by the Administrative Agent in connection with the cooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be Obligations secured by the Lien of the Mortgages.