Ground Lease. (a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease. (b) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Ground Lease. (a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to shall:
(i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage BorrowerBorrower (if any), as tenant under and pursuant to the provisions of the Ground Lease, as and when such rent or other charge is payable,
(ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed and observed, at least three (3) days prior to the expiration of any applicable grace period therein provided; and
(iii) promptly notify Lender of the giving of any written notice by the lessor under any the Ground Lease to Mortgage Borrower of any default by Mortgage Borrower in the performance or observance of any of the terms, covenants or conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed, and deliver to Lender a true copy of each such notice within two notice.
(2b) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to)not, without the prior consent of Lender, (wi) take surrender the leasehold estate created by the Ground Lease, (ii) terminate or cancel the Ground Lease, (iii) modify, change, supplement, alter or amend in any action material respect the Ground Lease, or fail (iv) waive any rights under the Ground Lease, either orally or in writing. Borrower hereby assigns to take Lender, as further security for the payment and performance of the Obligations and for the performance and observance of the terms, covenants and conditions of the Mortgage, this Agreement and the other Loan Documents, all of the rights, privileges and prerogatives of Borrower, as tenant under the Ground Lease, to surrender the leasehold estate created by the Ground Lease or to terminate, cancel, modify, change, supplement, alter, amend or waive any action which would result rights under the Ground Lease in the any material respect, and any such surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Leasetermination, (x) modifycancellation, modification, change, supplement, alter alteration, amendment of or amend waiver of rights under the Ground Lease, either orally or Lease in writing, or (y) vacate any material respect without the premises upon the land underlying the Ground Leaseprior consent of Lender shall be void and of no force and effect.
(bc) With respect to the Ground Lease, if Mortgage If Borrower shall default in the performance or observance of any material term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of the Mortgage, this Agreement and shall fail to cure the same prior to the expiration other Loan Documents, and without waiving or releasing Borrower from any of any applicable cure period provided thereunderits Obligations hereunder, Lender 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 material terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower Borrower, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired as a result thereof and free from default, even though the existence of such event of default or the nature thereof be questioned or denied by Borrower or by any party on behalf of Borrower. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Borrower of the making of any such payment, the performance of any such act or the taking of any such action. In any such event, subject to the rights of Tenants, subtenants and other occupants under the Leases or of parties to any REA, Lender and any Person designated as Lender’s agent by Lender shall have, and are hereby granted, the right to enter upon the Property at any reasonable time, on reasonable notice (which may be given verbally) and from time to time for the purpose of taking any such action. Lender may pay and expend such sums of money as Lender reasonably deems necessary for any such purpose and upon so doing shall be subrogated to any and all rights of the landlord under the Ground Lease. Borrower hereby agrees to pay to Lender within five (5) days after demand, all such sums so paid and expended by Lender, together with interest thereon from the day of such payment at the Default Rate. All sums so paid and expended by Lender and the interest thereon shall be secured by the legal operation and effect of the Mortgage.
(d) If the lessor under the Ground Lease shall deliver to Lender a copy of any written notice of default sent by said lessor to Borrower, as tenant under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and if Borrower shall fail to do so, Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇Borrower will not subordinate or consent to the subordination of the Ground Lease to any mortgage, security deed, lease or other interest on or in the landlord’s interest in all or any part of the Property.▇
(e) Unless Lender shall otherwise expressly consent in writing, there shall be no merger of the Ground Lease, nor of the leasehold estate or other estate created thereby, with the fee estate in the land demised thereunder by reason of the fact that the Ground Lease, or the leasehold estate or other estate created thereby, may be held directly or indirectly by or for the account of any person or entity who or which also holds the fee estate in the land demised thereunder.▇▇▇▇▇▇▇▇
(f) Borrower acknowledges that pursuant to Section 365 of the Bankruptcy Code, it is possible that a trustee in bankruptcy of ground lessor, or ground lessor as a debtor-in-possession, could reject the Ground Lease, in which case, Borrower, as tenant, would have the election described in Section 365(h) of the Bankruptcy Code (which election, as the same may be amended from time to time, and together with any comparable right under any other state or federal law relating to bankruptcy, reorganization or other relief for debtors, whether now or hereafter in effect, is herein called the “Election”) to treat the Ground Lease as terminated by such rejection or, in the alternative, to remain in possession for the balance of the term of the Ground Lease and any renewal or extension thereof that is enforceable by the tenant under applicable non-bankruptcy law. Borrower shall not permit the termination of the Ground Lease by exercise of the Election or otherwise without the prior written consent of Lender, which consent may be withheld, conditioned or delayed for any reason in Lender’s sole and absolute discretion. Borrower acknowledges that since the Ground Lease is a primary part of the security for the Obligations, it is not anticipated that Lender would consent to termination of the Ground Lease. In order to secure the covenant made in this paragraph and as security for the Obligations, Borrower assigns the Election and all rights related thereto to Lender. Borrower acknowledges and agrees that the foregoing assignment of the Election and related rights is one of the rights which Lender may use at any time in order to protect and preserve the other rights and interests of Lender under this Agreement and the other Loan Documents, since exercise of the Election in favor of terminating the Ground Lease would constitute waste hereunder. Borrower agrees that exercise of the Election in favor of preserving the right to possession under the Ground Lease shall not be deemed to constitute a taking or sale of the Property by Lender and shall not entitle Borrower to any credit against the Obligations. Borrower acknowledges and agrees that in the event the Election is exercised in favor of Borrower remaining in possession, Borrower’s resulting rights under the Ground Lease, as adjusted by the effect of Section 365 of the Bankruptcy Code, shall then be part of the Property and shall be subject to the Liens created by this Agreement, the Mortgage and the other Loan Documents.
(g) If there shall be filed by or against Borrower a petition under the Bankruptcy Code, and Borrower, as the tenant under the Ground Lease, shall determine to reject the Ground Lease pursuant to Section 365(a) of the Bankruptcy Code, then Borrower shall give Lender not less than ten (10) days’ prior notice of the date on which Borrower shall apply to the bankruptcy court for authority to reject the Ground Lease. Lender shall have the right, but not the obligation, to serve upon Borrower within such ten (10) day period a notice stating that (i) Lender demands that Borrower assume and assign the Ground Lease to Lender pursuant to Section 365 of the Bankruptcy Code and (ii) Lender agrees to cure or provide adequate assurance of prompt cure of all defaults and provide adequate assurance of future performance under the Ground Lease; provided, that such defaults are susceptible to cure. If Lender serves upon Borrower the notice described in the preceding sentence, Borrower shall not seek to reject the Ground Lease and shall comply with the demand provided for in clause (i) of the preceding sentence within thirty (30) days after the notice shall have been given, subject to the performance by Lender of the agreement provided for in clause (ii) of the preceding sentence. Effective upon the entry of an order for relief in respect of Borrower under the Bankruptcy Code, Borrower hereby assigns and transfers to Lender a non-exclusive right to apply to the bankruptcy court under Section 365(d)(4) of the Bankruptcy Code for an order extending the period during which the Ground Lease may be rejected or assumed.
Appears in 2 contracts
Sources: Loan Agreement (NOVONIX LTD), Loan Agreement (NOVONIX LTD)
Ground Lease. (a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreementnot, pay all rentswithout Lender’s written consent, additional rents and other sums required not to be paid by Mortgage Borrowerunreasonably withheld, as tenant under and pursuant conditioned or delayed, fail to timely exercise any option or right to renew or extend the provisions term of the Ground Lease, (ii) diligently perform and observe all shall give immediate written notice to Lender and shall execute, acknowledge, deliver and record any document requested by Lender to evidence the lien of the termsMortgage on such extended or renewed lease term; provided, covenants however, Borrower shall not be required to exercise any particular such option or right to renew or extend to the extent Borrower shall have received the prior written consent of Lender (which consent may not be unreasonably withheld, delayed or conditioned) allowing Borrower to forego exercising such option or right to renew or extend. If Borrower shall fail to timely exercise any such option or right as aforesaid, Lender may exercise the option or right as Borrower’s agent and conditions attorney-in-fact as provided above in Lender’s own name or in the name of and on behalf of a nominee of Lender, as Lender may determine in the exercise of its sole and absolute discretion.
(b) Borrower shall not waive, excuse, condone or in any way release or discharge the Ground Lessor under the Ground Lease on of or from Ground Lessor’s material obligations, covenant and/or conditions under the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior written consent of Lender, not to be unreasonably withheld, conditioned or delayed.
(wc) take any action Borrower shall not, without Lender’s prior written consent, not to be unreasonably withheld, conditioned or fail to take any action which would result in delayed, surrender, terminate, forfeit, or suffer or permit the surrender of the leasehold estate created by the Ground Lease or the surrender, termination or cancellation of the Ground Leaseforfeiture of, (x) modify, or change, supplement, alter modify or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition other than an expiration of the Ground Lease on the part of Mortgage Borrowerpursuant to its terms. Consent to one amendment, as tenant thereunderchange, and agreement or modification shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall not be deemed to be coupled with an interesta waiver of the right to require consent to other, future or successive amendments, changes, agreements or modifications. ▇▇▇▇▇▇▇▇Any acquisition of Ground Lessor’s interest in the Ground Lease by Borrower or any Affiliate of Borrower shall be accomplished by Borrower in such a manner so as to avoid a merger of the interests of lessor and lessee in such Ground Lease, unless consent to such merger is granted by Lender.▇.▇▇▇▇▇▇▇▇
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement (Vici Properties Inc.)
Ground Lease. (a) With respect to Borrower will, and will cause Owner to, comply in all material respects with the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants terms and conditions of the Ground Lease on Lease. Borrower will not, and will not permit Owner to, do or permit anything to be done, the part doing of Mortgage Borrowerwhich, as tenant thereunderor refrain from doing anything, (iii) promptly notify Lender the omission of which, will impair or tend to impair the security of the giving of any written notice by the lessor Premises under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation will be grounds for declaring a forfeiture of the Ground Lease. Borrower shall, and shall cause Owner to, promptly send copies of all notices of default which Owner may receive under the Ground Lease to Lender.
(xb) Borrower shall, and shall cause Owner to, enforce the Ground Lease and not terminate, modify, cancel, change, supplement, alter or amend the Ground Lease, either orally or waive, excuse, condone or in writing, any way release or (y) vacate discharge Ground Lessor of or from any of the premises upon the land underlying the material covenants and conditions to be performed or observed by Ground LeaseLessor.
(bc) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but shall be under no not the obligation, to pay perform any sums obligations of Borrower or Owner under the terms of the Ground Lease during the continuance of an Event of Default. All costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) so incurred, shall be treated as an advance secured by this Agreement, shall bear interest thereon at the Default Rate from the date of payment by Lender until paid in full and shall be paid by Borrower to Lender during the continuance of an Event of Default on demand. No performance by Lender of any obligations of Borrower or Owner shall constitute a waiver of any Event of Default arising by reason of Borrower’s or Owner’s failure to perform the same. If Lender shall make any payment or perform any act or take any action as may be appropriate to cause all in accordance with this Section 2.36(c), Lender will notify Borrower of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy making of any written notice such payment, the performance of default under any such act, or the Ground Lease, taking of any such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. action.
(d) Borrower shall cause Mortgage Borrower Owner to exercise each individual option, if any, to extend or renew the term of the Ground Lease not less than thirty (30) days prior to the last day upon which any such option may be exercised (and in all events within five (5) days after demand by Lender made at any time within one (1) year prior to of the last day upon which any such option may be exercised), and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon on behalf of BorrowerOwner to so exercise such option if Borrower fails to cause Owner to exercise as herein required, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇Borrower shall give Lender notice of Owner’s exercise of any such option to extend or renew the term of the Ground Lease within five (5) days of the exercise of any such option.▇
(e) Subject to Mortgage Lender’s rights under the Mortgage Loan, Borrower shall cause Owner to assign, transfer and set over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by the Ground Lessor of the Ground Lease under the Bankruptcy Code. Borrower shall notify Lender promptly (and in any event within ten (10) days) of any claim, suit, action or proceeding relating to the rejection of the Ground Lease. Lender is hereby irrevocably appointed as Borrower’s attorney-in-fact, coupled with an interest, with exclusive power to file and prosecute, to the exclusion of Borrower, any proofs of claim, complaints, motions, applications, notices and other documents, in any case in respect of the Ground Lessor under the Bankruptcy Code during the continuance of an Event of Default. Borrower may make any compromise or settlement in connection with such proceedings (subject to Lender’s reasonable approval); provided, however, that Lender shall be authorized and entitled to compromise or settle any such proceeding if such compromise or settlement is made after the occurrence and during the continuance of an Event of Default. Borrower shall promptly execute and deliver to Lender any and all instruments reasonably required in connection with any such proceeding after request therefor by Lender. Except as set forth above, Borrower shall not, nor permit Owner to, adjust, compromise, settle or enter into any agreement with respect to such proceedings without the prior written consent of Lender, which consent shall not be unreasonably withheld or delayed.▇▇▇▇▇▇▇▇
(f) Borrower shall not permit Owner to, without Lender’s prior written consent, elect to treat the Ground Lease as terminated under Section 365(h)(1) of the Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(g) If pursuant to Section 365(h)(2) of the Bankruptcy Code, Owner seeks to offset against the rent reserved in the Ground Lease the amount of any damages caused by the non-performance by the Ground Lessor of any of the Ground Lessor’s obligations under the Ground Lease after the rejection by the Ground Lessor of the Ground Lease under the Bankruptcy Code, Borrower shall, prior to Owner effecting such offset, notify Lender of its intention to do so, setting forth the amounts proposed to be so offset and the basis therefor. If Lender has failed to object as aforesaid within ten (10) days after notice from Borrower in accordance with the first sentence of this Section 2.35(g), Borrower may permit Owner to proceed to effect such offset in the amounts set forth in Borrower’s notice. Neither Lender’s failure to object as aforesaid nor any objection or other communication between Lender and Borrower relating to such offset shall constitute an approval of any such offset by Lender. Borrower shall indemnify and save Lender harmless from and against any and all claims, demands, actions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever (including, without limitation, reasonable attorneys’ fees and disbursements) arising from or relating to any such offset by Owner against the rent reserved in the Ground Lease.
(h) Borrower shall immediately, after obtaining knowledge thereof, notify Lender of any filing by or against the Ground Lessor of a petition under the Bankruptcy Code. Borrower shall thereafter forthwith give written notice of such filing to Lender, setting forth any information available to Borrower or Owner as to the date of such filing, the court in which such petition was filed, and the relief sought therein. Borrower shall promptly deliver to Lender following receipt any and all notices, summonses, pleadings, applications and other documents received by Borrower or Owner in connection with any such petition and any proceedings relating thereto.
(i) Borrower shall, and shall cause Owner to, perform all other covenants with respect to the Ground Lease as set forth in the Mortgage for so long as any portion of the Debt remains outstanding (regardless of whether the Mortgage Loan remains outstanding).
Appears in 2 contracts
Sources: Loan and Security Agreement (Morgans Hotel Group Co.), Loan and Security Agreement (Morgans Hotel Group Co.)
Ground Lease. (a) With 8.1 Mortgagor shall perform all of the covenants contained in Section 8.27 of the Project Loan Agreement with respect to the Ground Lease, Borrower . Mortgagor shall cause Mortgage Borrower to enforce the obligations of the lessor under the Ground Lease (ithe “Ground Lessor”) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 end that Mortgagor may enjoy all of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required rights granted to be paid by Mortgage Borrower, as tenant it under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all shall promptly notify Mortgagee of any default beyond any applicable grace, notice or cure period by the Ground Lessor that Mortgagor becomes aware of, in the performance or observance of any of the terms, covenants and conditions on the part of the Ground Lessor to be performed or observed under the Ground Lease, and Mortgagor shall promptly advise Mortgagee of the occurrence of any event of default beyond any applicable grace, notice or cure period under the Ground Lease. Mortgagor hereby assigns to Mortgagee, as further security for the payment and performance of the Secured Obligations and observance of the terms, covenants and conditions of this Mortgage, all of the Ground Lease on the part rights, privileges and prerogatives of Mortgage BorrowerMortgagor, as tenant thereunderunder the Ground Lease, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Leaseto terminate, (x) cancel, modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate and any such surrender of the premises upon the land underlying leasehold estate created by the Ground LeaseLease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease not permitted pursuant to the foregoing terms of this Section 8.1, Section 8.27 of the Loan Agreement or not otherwise approved by Mortgagee shall be void and of no force and effect.
(b) With respect to the Ground Lease, if Mortgage Borrower 8.2 If Mortgagor shall default beyond any applicable notice and/or grace period in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage BorrowerMortgagor, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of this Mortgage, and shall fail to cure the same prior to the expiration without waiving or releasing Mortgagor from any of any applicable cure period provided thereunderits obligations hereunder, Lender Mortgagee 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 the Ground Lease on the part of Mortgage Borrower Mortgagor, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Mortgage BorrowerMortgagor, to the end that the rights of Mortgage Borrower Mortgagor in, to and under the Ground Lease shall be kept unimpaired and free from default. If Mortgagee shall make any payment or perform any act or take action in accordance with the landlord under preceding sentence, Mortgagee will give Mortgagor prompt written notice thereof; provided that Mortgagee's failure to give such notice prior to making such payment or performing or taking such action shall not affect its rights hereunder. In any such event, Mortgagee and any Person designated by Mortgagee shall have, and are hereby granted, the right to enter upon the Mortgaged Property at any time and from time to time for the purpose of taking any such action. If the Ground Lease Lessor shall deliver to Lender Mortgagee a copy of any written notice of default sent by Ground Lessor to Mortgagor, as lessee under the Ground Lease, such notice shall constitute full protection Mortgagee may take or omit to Lender for take any action taken or omitted to be taken by Lender, in good faith, in reliance thereon.
8.3 So long as any portion of the Secured Obligations shall remain unpaid, the leasehold estate created in the Real Property pursuant to the Ground Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in any Person by ny-1260332 purchase, operation of law or otherwise. Borrower shall cause Mortgage Borrower to exercise each individual optionMortgagee reserves the right, if anyat any time, to extend release portions of the Property from the lien of this Mortgage with or renew without consideration, at Mortgagee's election, without waiving or affecting any of its rights hereunder or under the term Note, the Loan Agreements or the other Loan Documents and any such release shall not affect Mortgagee's rights in connection with the portion of the Property not so released.
8.4 In the event of the bankruptcy, reorganization or insolvency of Mortgagor, any attempt by Mortgagor to surrender its leasehold estate, or any portion thereof, under the Ground Lease, or any attempt by Mortgagor to terminate, cancel or acquiesce in the rejection of the Ground Lease upon demand by Lender made at without the consent of Mortgagee shall be null and void. Mortgagor hereby expressly releases, assigns, relinquishes and surrenders unto Mortgagee all of its right, power and authority to terminate, cancel, acquiesce in the rejection of, modify, change, supplement, alter or amend the Ground Lease in any time within one (1) year prior to respect, either orally or in writing, in the last day upon which any such option may be exercisedevent of the bankruptcy, reorganization or insolvency of Mortgagor, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact any attempt on the part of Mortgagor to exercise any such option in right without the name consent of and upon behalf of Borrower, which power of attorney Mortgagee shall be null and void.
8.5 Notwithstanding anything to the contrary contained in this Mortgage with respect to the Ground Lease, as security for the Loan, but subject to the Loan Documents, the Mortgagor unconditionally assigns, transfers and sets over unto Mortgagee all of its claims and rights to the payment of damages that may hereafter arise as a result of any rejection or disaffirmance of the Ground Lease by the Ground Lessor or its successors and assigns, or by ant trustee of any such party, pursuant to the Bankruptcy Code. Mortgagee shall have and is hereby granted the right to approve prior to the filing or commencement thereof by Borrower of any claim, suit, action or proceeding relating to the Ground Lessor’s attempt to reject or disaffirm, or the rejection or disaffirmance of, the Ground Lease (including, without limitation, the right to file and prosecute, any proofs of claim, complaints, motions, objections, applications, notices and other documents) in any case in respect of Ground Lessor or any of its successors and assigns, under the Bankruptcy Code. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall be deemed continue in effect until the Secured Obligations shall have been satisfied and discharged in full.
8.6 Mortgagee hereby agrees to be coupled deliver to Ground Lessor (simultaneously with an interestthe delivery thereof to Mortgagor) copies of any notice of default or nonperformance given to Mortgagor hereunder. ▇▇▇▇▇▇▇▇The terms of this Section 8.6 are adopted in order to comply with certain provisions required in order to qualify this Mortgage as a “Recognized Mortgage” under the Ground Lease.▇.▇▇▇▇▇▇▇▇
Appears in 2 contracts
Sources: Building Loan Mortgage, Building Loan Mortgage (KBS Strategic Opportunity REIT II, Inc.)
Ground Lease. (a) With respect to the Ground Lease, Borrower Mortgagor shall cause Mortgage Borrower to (i) except pay, or cause to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreementbe paid, pay all rents, additional rents and other sums required to be paid by Mortgage BorrowerMortgagor to Fee Owner under the Ground Lease, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe observe, or cause to be performed and observed, in all of material respects, the terms, covenants and conditions of the Ground Lease on the part of Mortgage BorrowerMortgagor, as tenant thereunder, (iii) promptly notify Lender Mortgagee of the giving of any written notice by Fee Owner under the lessor under any Ground Lease to Mortgage Borrower Mortgagor of any default by Mortgage BorrowerMortgagor, as tenant thereunder, and deliver to Lender Mortgagee a true copy of each such notice within two five (25) Business Days of receipt and (iv) promptly notify Lender Mortgagee of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease Fee Owner or of any notice thereof, and deliver to Lender Mortgagee a true copy of such notice within two five (25) Business Days of Mortgage BorrowerMortgagor’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two .
(2b) Business Days after receipt. Borrower Mortgagor shall not (and shall not permit Mortgage Borrower to)not, without the prior consent of LenderMortgagee, (w) take any action or fail to take any action which would result in surrender the surrender of the leasehold estate Leasehold Estate created by the Ground Lease or terminate or cancel the termination or cancellation Ground Lease or, except as may be expressly permitted pursuant to Section 6.11 of the Ground LeaseCredit Agreement, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect to the Ground Lease, writing and if Mortgage Borrower Mortgagor shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage BorrowerMortgagor, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender Mortgagee 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 the Ground Lease on the part of Mortgage Borrower Mortgagor to be performed or observed on behalf of Mortgage BorrowerMortgagor, to the end that the rights of Mortgage Borrower Mortgagor in, to and under the Ground Lease shall be kept unimpaired and free from default. .
(c) If the landlord under the Ground Lease Fee Owner shall deliver to Lender Mortgagee a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender Mortgagee for any action taken or omitted to be taken by LenderMortgagee, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇
Appears in 2 contracts
Sources: Credit Agreement (Cig Wireless Corp.), Credit Agreement (Cig Wireless Corp.)
Ground Lease. (a) With respect Ground Lessee and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting to the Ground Lease, Borrower shall Lender such lien as would cause Mortgage Borrower to (i) except the fee simple title to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required Property to be paid by Mortgage Borrower, as tenant under sold free and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions clear of the Ground Lease on the part of Mortgage at foreclosure sale. Ground Lessee and Borrower hereby jointly and severally waive any right, arising at law or in equity, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, as tenant thereunderor anyone holding or claiming under or through them, (iii) promptly notify Lender to have their separate estates sold separately upon foreclosure, whether under principles of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization marshalling or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Leaseotherwise.
(b) With Except as specified in Section 11.02, in any action commenced to enforce the Obligations created or arising under this Instrument, any resulting judgment or decree shall be enforceable against Ground Lessee only to the extent of Ground Lessee’s interest in the Property or other property subject to any security interest securing the Note. Subject to Section 11.01, (i) any execution on such judgment or decree, with respect to the assets of Ground LeaseLessee, if Mortgage shall be limited to the Property or other property subject to any security interest securing the Note, and (ii) Ground Lessee shall not be personally liable for the payment of the indebtedness or other Obligations secured by this Instrument, nor shall execution on any judgment or decree resulting from any action to enforce the Obligations be or be caused to be a lien on any other asset of Ground Lessee other than the Property or other property subject to any security interest securing the Note. Prudential Loan 6 1xx xxx ▇▇▇▇ (Second Funding)/ Mortgage
(c) Ground Lessee and Borrower shall default each agree that neither this Instrument nor any obligation of Ground Lessee and Borrower hereunder will be released, impaired or subordinated by any amendment to this Instrument or any other document or extension of time or waiver of right or remedy as to Ground Lessee, Borrower, or any other party, or any other act or thing which, but for this provision, would so release, impair, or subordinate.
(d) Ground Lessee and Ground Lessee’s interest in the performance or observance of any term, covenant or condition of the Ground Lease on and the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but Property shall be under no obligation, subject 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 provisions of the Ground Lease on the part Section 5.01.
(e) Under no circumstances shall Lender or any of Mortgage Borrower to be performed its successors or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy assigns have any obligation or liability of any written notice of default kind or nature based upon or arising under the Ground Lease, regardless of whether such notice shall constitute full protection obligation or liability (i) is an obligation or liability of either ground lessee or ground lessor under the Ground Lease, or (ii) arises either before or after Lender acquired title to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. the Property.
(f) Ground Lessee and Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term hereby acknowledge and agree that all of the Ground Lease upon demand by Lender made at Lessee’s rights and remedies under the Ground Lease, including without limitation any time within one (1) year prior rights of first refusal or any purchase rights, are subject to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact subordinate to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇this Instrument.▇.▇▇▇▇▇▇▇▇
Appears in 2 contracts
Sources: Agreement of Spreader, Consolidation, and Modification of Mortgage and Security, Agreement of Spreader, Consolidation and Modification of Mortgage and Security Agreement (250 West 57th St Associates L.L.C.)
Ground Lease. (a) With respect to Borrower will, and will cause Owner to, comply in all material respects with the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants terms and conditions of any Ground Lease. Borrower will not, and will not permit Owner to, do or permit anything to be done, the doing of which, or refrain from doing anything, the omission of which, will impair or tend to impair the security of the Premises under the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving Leases or will be grounds for declaring a forfeiture of any written notice by the lessor Ground Lease. Borrower shall, and shall cause Owner to, promptly send copies of all notices of default which Owner may receive under any Ground Lease to Mortgage Lender.
(b) Borrower of any default by Mortgage Borrower, as tenant thereundershall, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcyshall cause Owner to, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by enforce the Ground Lease or the termination or cancellation of the Ground LeaseLeases and not terminate, (x) modify, cancel, change, supplement, alter or amend the any Ground Lease, either orally or waive, excuse, condone or in writing, any way release or (y) vacate discharge any Ground Lessor of or from any of the premises upon the land underlying the material covenants and conditions to be performed or observed by such Ground LeaseLessor.
(bc) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but shall be under no not the obligation, to pay perform any sums obligations of Borrower or Owner under the terms of any Ground Lease during the continuance of an Event of Default. All costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) so incurred, shall be treated as an advance secured by this Agreement, shall bear interest thereon at the Default Rate from the date of payment by Lender until paid in full and shall be paid by Borrower to Lender during the continuance of an Event of Default on demand. No performance by Lender of any obligations of Borrower or Owner shall constitute a waiver of any Event of Default arising by reason of Borrower’s or Owner’s failure to perform the same. If Lender shall make any payment or perform any act or take any action as may be appropriate to cause all in accordance with this Section 2.36(c), Lender will notify Borrower of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy making of any written notice such payment, the performance of default under any such act, or the Ground Lease, taking of any such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. action.
(d) Borrower shall cause Mortgage Borrower Owner to exercise each individual option, if any, to extend or renew the term of the any Ground Lease not less than thirty (30) days prior to the last day upon which any such option may be exercised (and in all events within five (5) days after demand by Lender made at any time within one (1) year prior to of the last day upon which any such option may be exercised), and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon on behalf of BorrowerOwner to so exercise such option if Borrower fails to cause Owner to exercise as herein required, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇Borrower shall give Lender notice of Owner’s exercise of any such option to extend or renew the term of any Ground Lease within five (5) days of the exercise of any such option.▇
(e) Subject to Mortgage Lender’s rights under the Mortgage Loan and Senior Mez Lender’s rights under the Senior Mez Loan, Borrower shall cause Owner to assign, transfer and set over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by any Ground Lessor of any Ground Lease under the Bankruptcy Code. Borrower shall notify Lender promptly (and in any event within ten (10) days) of any claim, suit, action or proceeding relating to the rejection of any Ground Lease. Subject to Mortgage Lender’s rights under the Mortgage Loan and Senior Mez Lender’s rights under the Senior Mez Loan, the Lender is hereby irrevocably appointed as Borrower’s attorney-in-fact, coupled with an interest, with exclusive power to file and prosecute, to the exclusion of Borrower, any proofs of claim, complaints, motions, applications, notices and other documents, in any case in respect of any Ground Lessor under the Bankruptcy Code during the continuance of an Event of Default. Borrower may make any compromise or settlement in connection with such proceedings (subject to Lender’s reasonable approval); provided, however, that Lender, subject to Mortgage Lender’s rights under the Mortgage Loan and Senior Mez Lender’s rights under the Senior Mez Loan, shall be authorized and entitled to compromise or settle any such proceeding if such compromise or settlement is made after the occurrence and during the continuance of an Event of Default. Borrower shall promptly execute and deliver to Lender any and all instruments reasonably required in connection with any such proceeding after request therefor by Lender. Except as set forth above, Borrower shall not, nor permit Owner to, adjust, compromise, settle or enter into any agreement with respect to such proceedings without the prior written consent of Lender, which consent shall not be unreasonably withheld or delayed.▇▇▇▇▇▇▇▇
(f) Borrower shall not permit Owner to, without Lender’s prior written consent, elect to treat any Ground Lease as terminated under Section 365(h)(1) of the Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(g) If pursuant to Section 365(h)(2) of the Bankruptcy Code, Owner seeks to offset against the rent reserved in any Ground Lease the amount of any damages caused by the non-performance by any Ground Lessor of any of such Ground Lessor’s obligations under the applicable Ground Lease after the rejection by such Ground Lessor of the Ground Lease under the Bankruptcy Code, Borrower shall, prior to Owner effecting such offset, notify Lender of its intention to do so, setting forth the amounts proposed to be so offset and the basis therefor. If Lender has failed to object as aforesaid within ten (10) days after notice from Borrower in accordance with the first sentence of this Section 2.35(g), Borrower may permit Owner to proceed to effect such offset in the amounts set forth in Borrower’s notice. Neither Lender’s failure to object as aforesaid nor any objection or other communication between Lender and Borrower relating to such offset shall constitute an approval of any such offset by Lender. Borrower shall indemnify and save Lender harmless from and against any and all claims, demands, actions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever (including, without limitation, reasonable attorneys’ fees and disbursements) arising from or relating to any such offset by Owner against the rent reserved in the Ground Lease.
(h) Borrower shall immediately, after obtaining knowledge thereof, notify Lender of any filing by or against any Ground Lessor of a petition under the Bankruptcy Code. Borrower shall thereafter forthwith give written notice of such filing to Lender, setting forth any information available to Borrower or Owner as to the date of such filing, the court in which such petition was filed, and the relief sought therein. Borrower shall promptly deliver to Lender following receipt any and all notices, summonses, pleadings, applications and other documents received by Borrower or Owner in connection with any such petition and any proceedings relating thereto.
(i) Borrower shall, and shall cause Owner to, perform all other covenants with respect to any Ground Lease as set forth in the Mortgage for so long as any portion of the Debt remains outstanding (regardless of whether the Mortgage Loan remains outstanding).
Appears in 2 contracts
Sources: Loan and Security Agreement (Ashford Hospitality Trust Inc), Loan and Security Agreement (Ashford Hospitality Trust Inc)
Ground Lease. (a) With respect to Borrower will, and will cause Owner to, comply in all material respects with the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants terms and conditions of any Ground Lease. Borrower will not, and will not permit Owner to, do or permit anything to be done, the doing of which, or refrain from doing anything, the omission of which, will impair or tend to impair the security of the Premises under the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving Leases or will be grounds for declaring a forfeiture of any written notice by the lessor Ground Lease. Borrower shall, and shall cause Owner to, promptly send copies of all notices of default which Owner may receive under any Ground Lease to Mortgage Lender.
(b) Borrower of any default by Mortgage Borrower, as tenant thereundershall, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcyshall cause Owner to, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by enforce the Ground Lease or the termination or cancellation of the Ground LeaseLeases and not terminate, (x) modify, cancel, change, supplement, alter or amend the any Ground Lease, either orally or waive, excuse, condone or in writing, any way release or (y) vacate discharge any Ground Lessor of or from any of the premises upon the land underlying the material covenants and conditions to be performed or observed by such Ground LeaseLessor.
(bc) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but shall be under no not the obligation, to pay perform any sums obligations of Borrower or Owner under the terms of any Ground Lease during the continuance of an Event of Default. All costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) so incurred, shall be treated as an advance secured by this Agreement, shall bear interest thereon at the Default Rate from the date of payment by Lender until paid in full and shall be paid by Borrower to Lender during the continuance of an Event of Default on demand. No performance by Lender of any obligations of Borrower or Owner shall constitute a waiver of any Event of Default arising by reason of Borrower’s or Owner’s failure to perform the same. If Lender shall make any payment or perform any act or take any action as may be appropriate to cause all in accordance with this Section 2.36(c), Lender will notify Borrower of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy making of any written notice such payment, the performance of default under any such act, or the Ground Lease, taking of any such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. action.
(d) Borrower shall cause Mortgage Borrower Owner to exercise each individual option, if any, to extend or renew the term of the any Ground Lease not less than thirty (30) days prior to the last day upon which any such option may be exercised (and in all events within five (5) days after demand by Lender made at any time within one (1) year prior to of the last day upon which any such option may be exercised), and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon on behalf of BorrowerOwner to so exercise such option if Borrower fails to cause Owner to exercise as herein required, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇Borrower shall give Lender notice of Owner’s exercise of any such option to extend or renew the term of any Ground Lease within five (5) days of the exercise of any such option.▇
(e) Subject to Mortgage Lender’s rights under the Mortgage Loan, Borrower shall cause Owner to assign, transfer and set over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by any Ground Lessor of any Ground Lease under the Bankruptcy Code. Borrower shall notify Lender promptly (and in any event within ten (10) days) of any claim, suit, action or proceeding relating to the rejection of any Ground Lease. Subject to Mortgage Lender’s rights under the Mortgage Loan, the Lender is hereby irrevocably appointed as Borrower’s attorney-in-fact, coupled with an interest, with exclusive power to file and prosecute, to the exclusion of Borrower, any proofs of claim, complaints, motions, applications, notices and other documents, in any case in respect of any Ground Lessor under the Bankruptcy Code during the continuance of an Event of Default. Borrower may make any compromise or settlement in connection with such proceedings (subject to Lender’s reasonable approval); provided, however, that Lender, subject to Mortgage Lender’s rights under the Mortgage Loan, shall be authorized and entitled to compromise or settle any such proceeding if such compromise or settlement is made after the occurrence and during the continuance of an Event of Default. Borrower shall promptly execute and deliver to Lender any and all instruments reasonably required in connection with any such proceeding after request therefor by Lender. Except as set forth above, Borrower shall not, nor permit Owner to, adjust, compromise, settle or enter into any agreement with respect to such proceedings without the prior written consent of Lender, which consent shall not be unreasonably withheld or delayed.▇▇▇▇▇▇▇▇
(f) Borrower shall not permit Owner to, without Lender’s prior written consent, elect to treat any Ground Lease as terminated under Section 365(h)(1) of the Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(g) If pursuant to Section 365(h)(2) of the Bankruptcy Code, Owner seeks to offset against the rent reserved in any Ground Lease the amount of any damages caused by the non-performance by any Ground Lessor of any of such Ground Lessor’s obligations under the applicable Ground Lease after the rejection by such Ground Lessor of the Ground Lease under the Bankruptcy Code, Borrower shall, prior to Owner effecting such offset, notify Lender of its intention to do so, setting forth the amounts proposed to be so offset and the basis therefor. If Lender has failed to object as aforesaid within ten (10) days after notice from Borrower in accordance with the first sentence of this Section 2.35(g), Borrower may permit Owner to proceed to effect such offset in the amounts set forth in Borrower’s notice. Neither Lender’s failure to object as aforesaid nor any objection or other communication between Lender and Borrower relating to such offset shall constitute an approval of any such offset by Lender. Borrower shall indemnify and save Lender harmless from and against any and all claims, demands, actions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever (including, without limitation, reasonable attorneys’ fees and disbursements) arising from or relating to any such offset by Owner against the rent reserved in the Ground Lease.
(h) Borrower shall immediately, after obtaining knowledge thereof, notify Lender of any filing by or against any Ground Lessor of a petition under the Bankruptcy Code. Borrower shall thereafter forthwith give written notice of such filing to Lender, setting forth any information available to Borrower or Owner as to the date of such filing, the court in which such petition was filed, and the relief sought therein. Borrower shall promptly deliver to Lender following receipt any and all notices, summonses, pleadings, applications and other documents received by Borrower or Owner in connection with any such petition and any proceedings relating thereto.
(i) Borrower shall, and shall cause Owner to, perform all other covenants with respect to any Ground Lease as set forth in the Mortgage for so long as any portion of the Debt remains outstanding (regardless of whether the Mortgage Loan remains outstanding).
Appears in 2 contracts
Sources: Loan and Security Agreement (Ashford Hospitality Trust Inc), Loan and Security Agreement (Ashford Hospitality Trust Inc)
Ground Lease. (a) With respect to If there shall occur a default by Borrower beyond any applicable grace or cure periods under the Ground Lease; then and in every such case:
I. Lender may declare the entire principal of the Note then outstanding (if not then due and payable), Borrower shall cause Mortgage Borrower and all accrued and unpaid interest thereon, to be due and payable immediately, and upon any such declaration, (i) except to all accrued and unpaid interest due under the extent reserved for by Mortgage Lender pursuant to Section 9.8 Note, (ii) the outstanding principal of the Mortgage Loan AgreementNote, pay (iii) any prepayment premium due under the Note, if any, and (iv) any and all rents, additional rents and other sums charges required to be paid by Mortgage Borrower, as tenant under and Borrower pursuant to any provision of this Mortgage, the provisions Note or any other document securing the Note shall become and be immediately due and payable, anything in the Note or in this Mortgage to the contrary notwithstanding; and
II. Lender personally, or by its agents or attorneys, may enter into and upon all or any part of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunderMortgaged Property, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice every part thereof, and deliver to Lender is hereby given a true copy of such notice within two (2) Business Days of Mortgage right and license and appointed Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to do so, and may exclude Borrower, its agents and servants, wholly therefrom; and having and holding the same, may use, operate, manage and control the Mortgaged Property and conduct the business thereof either personally or by its superintendents, managers, agents, servants, attorneys or receivers; and upon every such entry, Lender, at the expense of the Mortgaged Property, from time to time, either by purchase, repairs or construction, may maintain and restore the Mortgaged Property, whereof it shall become possessed as aforesaid; and likewise, from time to time, at the expense of the Mortgaged Property, Lender may make all necessary or proper repairs, renewals and replacements and such alterations, additions, betterments and improvements thereto and thereon as to it may seem advisable; and in every such case Lender shall have the right to manage and operate the Mortgaged Property and to carry on the business thereof and exercise any such option all rights and powers of Borrower with respect thereto either in the name of Borrower or otherwise as it shall deem best; and upon behalf Lender shall be entitled to collect and receive all earnings, revenues, rents, issues, profits and income of the Mortgaged Property and every part thereof, all of which shall for all purposes constitute property of Borrower; and in furtherance of such right, which power Lender may collect the rents payable under all Leases directly from the lessees thereunder upon notice to each such lessee that an Event of attorney Default exists under this Mortgage accompanied by a demand on such lessee for the payment to Lender of all rents due and to become due under its Lease, and Borrower, for the benefit of Lender and each such lessee, hereby covenants and agrees that the lessee shall be irrevocable under no duty to question the accuracy of Lender’s statement of default and shall unequivocally be deemed authorized to pay said rents to Lender without regard to the truth of Lender’s statement of default and notwithstanding notices from Borrower disputing the existence of an Event of Default such that the payment of rent by the lessee to Lender pursuant to such a demand shall constitute performance in full of the lessee’s obligation under the Lease for the payment of rents by the lessee to Borrower; and after deducting the expenses of conducting the business thereof and of all maintenance, repairs, renewals, replacements, alterations, additions, betterments, and improvements and amounts necessary to pay for taxes, assessments, insurance and prior or other proper charges upon the Mortgaged Property or any part thereof, as well as just and reasonable compensation for the services of Lender and for all attorneys, counsel, agents, clerks, servants and other employees by it engaged and employed, Lender shall apply the moneys arising as aforesaid, first, to the payment of (i) any and all charges required to be coupled paid by Borrower pursuant to any provision of this Mortgage, the Note or any other document securing the Note, (ii) any prepayment premium due under the Note, if any, (iii) all accrued and unpaid interest due under the Note, and (iv) the outstanding principal of the Note, when and as the same shall become payable; and
III. Lender may, either with or without entry or taking possession of the Mortgaged Property as provided in this Mortgage or otherwise, personally or by its agents or attorneys, and without prejudice to the right to bring an action for foreclosure of this Mortgage, sell the Mortgaged Property or any part thereof pursuant to any procedures provided by applicable law, including, without limitation, the procedures set forth in Article 14 of the New York Real Property Actions and Proceedings Law (and any amendments or substitute statutes in regard thereto), and all estate, right, title, interest, claim and demand therein, and right of redemption thereof, at one or more sales as an entity or in parcels, and at such time and place upon such terms and after such notice thereof as may be required or permitted by applicable law.
IV. ▇▇▇▇▇▇▇▇Notwithstanding and in addition to the provisions of Section III hereinabove set forth, Lender, with or without entry personally or by its agents or attorneys, insofar as applicable, may:
(1) institute proceedings for the complete or partial foreclosure of this Mortgage; or
(2) take such steps to protect and enforce its rights whether by action, suit or proceeding in equity or at law for the specific performance of any covenant, condition or agreement in the Note or in this Mortgage, or in aid of the execution of any power granted in this Mortgage, or for any foreclosure under this Mortgage, or for the enforcement of any other appropriate legal or equitable remedy or otherwise as Lender may elect.▇.▇▇▇▇▇▇▇▇
Appears in 2 contracts
Sources: Operating Agreement (New York Times Co), Operating Agreement (New York Times Co)
Ground Lease. (a) With respect to Borrower will, and will cause Owner to, comply in all material respects with the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants terms and conditions of any Ground Lease. Borrower will not, and will not permit Owner to, do or permit anything to be done, the doing of which, or refrain from doing anything, the omission of which, will impair or tend to impair the security of the Premises under the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving Leases or will be grounds for declaring a forfeiture of any written notice by the lessor Ground Lease. Borrower shall, and shall cause Owner to, promptly send copies of all notices of default which Owner may receive under any Ground Lease to Mortgage Lender.
(b) Borrower of any default by Mortgage Borrower, as tenant thereundershall, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcyshall cause Owner to, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by enforce the Ground Lease or the termination or cancellation of the Ground LeaseLeases and not terminate, (x) modify, cancel, change, supplement, alter or amend the any Ground Lease, either orally or waive, excuse, condone or in writing, any way release or (y) vacate discharge any Ground Lessor of or from any of the premises upon the land underlying the material covenants and conditions to be performed or observed by such Ground LeaseLessor.
(bc) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but shall be under no not the obligation, to pay perform any sums obligations of Borrower or Owner under the terms of any Ground Lease during the continuance of an Event of Default. All costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) so incurred, shall be treated as an advance secured by this Agreement, shall bear interest thereon at the Default Rate from the date of payment by Lender until paid in full and shall be paid by Borrower to Lender during the continuance of an Event of Default on demand. No performance by Lender of any obligations of Borrower or Owner shall constitute a waiver of any Event of Default arising by reason of Borrower’s or Owner’s failure to perform the same. If Lender shall make any payment or perform any act or take any action as may be appropriate to cause all in accordance with this Section 2.36(c), Lender will notify Borrower of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy making of any written notice such payment, the performance of default under any such act, or the Ground Lease, taking of any such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. action.
(d) Borrower shall cause Mortgage Borrower Owner to exercise each individual option, if any, to extend or renew the term of the any Ground Lease not less than thirty (30) days prior to the last day upon which any such option may be exercised (and in all events within five (5) days after demand by Lender made at any time within one (1) year prior to of the last day upon which any such option may be exercised), and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon on behalf of BorrowerOwner to so exercise such option if Borrower fails to cause Owner to exercise as herein required, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇Borrower shall give Lender notice of Owner’s exercise of any such option to extend or renew the term of any Ground Lease within five (5) days of the exercise of any such option.▇
(e) Subject to Mortgage Lender’s rights under the Mortgage Loan, Intermediate Mez Lender’s rights under the Intermediate Mez Loan and Senior Mez Lender’s rights under the Senior Mez Loan, Borrower shall cause Owner to assign, transfer and set over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by any Ground Lessor of any Ground Lease under the Bankruptcy Code. Borrower shall notify Lender promptly (and in any event within ten (10) days) of any claim, suit, action or proceeding relating to the rejection of any Ground Lease. Subject to Mortgage Lender’s rights under the Mortgage Loan, Intermediate Mez Lender’s rights under the Intermediate Mez Loan and Senior Mez Lender’s rights under the Senior Mez Loan, the Lender is hereby irrevocably appointed as Borrower’s attorney-in-fact, coupled with an interest, with exclusive power to file and prosecute, to the exclusion of Borrower, any proofs of claim, complaints, motions, applications, notices and other documents, in any case in respect of any Ground Lessor under the Bankruptcy Code during the continuance of an Event of Default. Borrower may make any compromise or settlement in connection with such proceedings (subject to Lender’s reasonable approval); provided, however, that Lender, subject to Mortgage Lender’s rights under the Mortgage Loan, Intermediate Mez Lender’s rights under the Intermediate Mez Loan and Senior Mez Lender’s rights under the Senior Mez Loan, shall be authorized and entitled to compromise or settle any such proceeding if such compromise or settlement is made after the occurrence and during the continuance of an Event of Default. Borrower shall promptly execute and deliver to Lender any and all instruments reasonably required in connection with any such proceeding after request therefor by Lender. Except as set forth above, Borrower shall not, nor permit Owner to, adjust, compromise, settle or enter into any agreement with respect to such proceedings without the prior written consent of Lender, which consent shall not be unreasonably withheld or delayed.▇▇▇▇▇▇▇▇
(f) Borrower shall not permit Owner to, without Lender’s prior written consent, elect to treat any Ground Lease as terminated under Section 365(h)(1) of the Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(g) If pursuant to Section 365(h)(2) of the Bankruptcy Code, Owner seeks to offset against the rent reserved in any Ground Lease the amount of any damages caused by the non-performance by any Ground Lessor of any of such Ground Lessor’s obligations under the applicable Ground Lease after the rejection by such Ground Lessor of the Ground Lease under the Bankruptcy Code, Borrower shall, prior to Owner effecting such offset, notify Lender of its intention to do so, setting forth the amounts proposed to be so offset and the basis therefor. If Lender has failed to object as aforesaid within ten (10) days after notice from Borrower in accordance with the first sentence of this Section 2.35(g), Borrower may permit Owner to proceed to effect such offset in the amounts set forth in Borrower’s notice. Neither Lender’s failure to object as aforesaid nor any objection or other communication between Lender and Borrower relating to such offset shall constitute an approval of any such offset by Lender. Borrower shall indemnify and save Lender harmless from and against any and all claims, demands, actions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever (including, without limitation, reasonable attorneys’ fees and disbursements) arising from or relating to any such offset by Owner against the rent reserved in the Ground Lease.
(h) Borrower shall immediately, after obtaining knowledge thereof, notify Lender of any filing by or against any Ground Lessor of a petition under the Bankruptcy Code. Borrower shall thereafter forthwith give written notice of such filing to Lender, setting forth any information available to Borrower or Owner as to the date of such filing, the court in which such petition was filed, and the relief sought therein. Borrower shall promptly deliver to Lender following receipt any and all notices, summonses, pleadings, applications and other documents received by Borrower or Owner in connection with any such petition and any proceedings relating thereto.
(i) Borrower shall, and shall cause Owner to, perform all other covenants with respect to any Ground Lease as set forth in the Mortgage for so long as any portion of the Debt remains outstanding (regardless of whether the Mortgage Loan remains outstanding).
Appears in 2 contracts
Sources: Loan and Security Agreement (Ashford Hospitality Trust Inc), Loan and Security Agreement (Ashford Hospitality Trust Inc)
Ground Lease. (a) With respect Ground Lessee and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting to the Ground Lease, Borrower shall Lender such lien as would cause Mortgage Borrower to (i) except the fee simple title to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required Property to be paid by Mortgage Borrower, as tenant under sold free and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions clear of the Ground Lease on the part of Mortgage at foreclosure sale. Ground Lessee and Borrower hereby jointly and severally waive any right, arising at law or in equity, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, as tenant thereunderor anyone holding or claiming under or through them, (iii) promptly notify Lender to have their separate estates sold separately upon foreclosure, whether under principles of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization marshalling or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Leaseotherwise.
(b) With Except as specified in Section 11.02, in any action commenced to enforce the Obligations created or arising under this Instrument, any resulting judgment or decree shall be enforceable against Ground Lessee only to the extent of Ground Lessee’s interest in the Property or other property subject to any security interest securing the Note. Subject to Section 11.01, (i) any execution on such judgment or decree, with respect to the assets of Ground LeaseLessee, if Mortgage shall be limited to the Property or other property subject to any security interest securing the Note, and (ii) Ground Lessee shall not be personally liable for the payment of the indebtedness or other Obligations secured by this Instrument, nor shall execution on any judgment or decree resulting from any action to enforce the Obligations be or be caused to be a lien on any other asset of Ground Lessee other than the Property or other property subject to any security interest securing the Note.
(c) Ground Lessee and Borrower shall default each agree that neither this Instrument nor any obligation of Ground Lessee and Borrower hereunder will be released, impaired or subordinated by any amendment to this Instrument or any other document or extension of time or waiver of right or remedy as to Ground Lessee, Borrower, or any other party, or any other act or thing which, but for this provision, would so release, impair, or subordinate.
(d) Ground Lessee and Ground Lessee’s interest in the performance or observance of any term, covenant or condition of the Ground Lease on and the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but Property shall be under no obligation, subject 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 provisions of the Ground Lease on the part Section 5.01.
(e) Under no circumstances shall Lender or any of Mortgage Borrower to be performed its successors or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy assigns have any obligation or liability of any written notice of default kind or nature based upon or arising under the Ground Lease, regardless of whether such notice shall constitute full protection obligation or liability (i) is an obligation or liability of either ground lessee or ground lessor under the Ground Lease, or (ii) arises either before or after Lender acquired title to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. the Property.
(f) Ground Lessee and Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term hereby acknowledge and agree that all of the Ground Lease upon demand by Lender made at Lessee’s rights and remedies under the Ground Lease, including without limitation any time within one (1) year prior rights of first refusal or any purchase rights, are subject to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact subordinate to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇this Instrument.▇.▇▇▇▇▇▇▇▇
Appears in 2 contracts
Sources: Second Priority Mortgage and Security Agreement (250 West 57th St Associates L.L.C.), Mortgage Agreement (60 East 42nd Street Associates L.L.C.)
Ground Lease. (a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇result
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Ground Lease. (a) With respect Grantor hereby represents and warrants, as of the Effective Date, (i) Grantor has delivered a true and correct copy of each Ground Lease to Grantee prior to or simultaneously with its execution of this Security Instrument; (ii) the Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, except as specified in [Exhibit [A/B] [and Exhibit [B/C]] attached hereto]; (iii) the Grantor enjoys the quiet and peaceful possession of the Ground Leasehold Estate subject only to Permitted Liens; (iv) to the best of Grantor's knowledge, there is no material default under the Ground Leasehold by any party thereunder, and no event has occurred which but for the passage of time, or the giving of notice, or both would constitute a material default under the Ground Lease; (v) except to the extent nonpayment would not have a Material Adverse Effect, all rents, additional rents, and other sums due and payable under the Ground Lease have been paid in full except as permitted under the express terms of the Ground Lease; (vi) to the best of Grantor's knowledge, no Person has commenced any action or given or received any notice for the purpose of terminating such Ground Lease; (vii) the consummation of the transactions contemplated hereby will not result in any breach of, or constitute a default under, the Ground Lease, Borrower (viii) all actions which must be taken for Grantee to have the rights of a leasehold mortgagee or mortgagee pursuant to the Ground Lease have been taken and completed; (ix) the Grantor or any Affiliate thereof has not granted any other leasehold mortgage or made any other assignment, pledge or hypothecation of its interest under the Ground Lease; (x) the Ground Lease or a memorandum thereof has been duly recorded; (xi) the Ground Lease permits the interest of the lessee thereunder to be encumbered by the Security Instrument; (xii) the Ground Lease is not subject to any Liens (other than Permitted Liens) superior to, or of equal priority with, the Security Instrument; (xiii) the Ground Lease, either by its express terms or after giving effect to any estoppel and consent agreement, [(v) cannot be cancelled, terminated, surrendered or amended without the prior written consent of Grantee; (w) requires Fee Owner to enter into a new lease on similar terms and conditions upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a proceeding under the Bankruptcy Code or any other Creditors Rights Laws; (x) is assignable upon notice to, but without the consent of, the Fee Owner and, in the event that it is so assigned, it is further assignable upon notice to, but without the need to obtain the consent of Fee Owner, (y) provides that notice of termination given under the Ground Lease is not effective against Grantee or any Secured Party unless a copy of such notice has been delivered to Grantee in the manner described in the Ground Lease and (z) provides that Grantee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the Grantor under the Ground Leases) to cure any default under the Ground Lease, which is curable after the receipt of notice of any default, before Fee Owner may terminate the Ground Lease;] (xiv) the Ground Lease has a term which extends [not less than twenty-five (25) years] beyond the date on which no Secured Obligations continue to be outstanding; (xv) under the terms of the Ground Lease, and the applicable Note Documents, taken together, any Net Loss Proceeds will be applied in accordance with the terms of the Indenture; and [(xvi) the Ground Lease does not impose restrictions on subletting.]
(b) Grantor hereby covenants and agrees that, so long as the Secured Obligations remain outstanding, it shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreementnonpayment would not have a Material Adverse Effect, pay all rents, additional rents and other sums required to be paid by Mortgage BorrowerGrantor, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe in all material respects all of the terms, covenants and conditions of the Ground Lease to be performed and observed on the part of Mortgage Borrowersuch Grantor, as tenant thereunder, (iii) reasonably promptly notify Lender Grantee of the giving of any written notice by the lessor under any Ground Lease Fee Owner to Mortgage Borrower Grantor of any material default by Mortgage BorrowerGrantor, as tenant thereunder, and deliver to Lender Grantee a true copy of each such notice within two five (25) Business Days days of Grantor's receipt and (iv) reasonably promptly notify Lender Grantee of any notice of bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereofFee Owner, and deliver to Lender Grantee a true copy of such notice within two notice.
(2c) Business Days In the event of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received any uncured default by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result Grantor in the surrender performance of the leasehold estate created by the Ground Lease or the termination or cancellation any of its obligations under the Ground Lease, including, without limitation, any uncured default in the payment of rent and other charges and impositions made payable by the lessee thereunder, then, in the case of an uncured default in the payment of any monetary obligation, [Grantee has the right, but not the obligation, without notice, to make payment to cure such default, or, in the case of an uncured default in the performance of any non-monetary obligation, Grantee has the right, but not the obligation, to cause the default or defaults to be remedied and otherwise exercise any and all of the rights of the Grantor thereunder in the name of and on behalf of the Grantor]. Grantor shall, on demand, reimburse Grantee for all advances made and reasonable expenses incurred by Grantee in curing any such default (xincluding, without limitation, reasonable attorneys' fees), together with interest thereon computed at the Default Rate (as hereinafter defined) modifyfrom the date that an advance is made or expense is incurred, change, supplement, alter or amend to and including the Ground Lease, either orally or in writing, or (y) vacate date the premises upon the land underlying the Ground Leasesame is paid.
(bd) With Notwithstanding anything to the contrary contained herein with respect to the Ground Lease, if Mortgage Borrower shall default in :
(i) the performance or observance Lien of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail this Security Instrument attaches to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 Grantor's rights and conditions remedies at any time arising under or pursuant to subsection 365(h) of the Ground Lease on Bankruptcy Code, including, without limitation, all of the part of Mortgage Borrower to be performed or observed on behalf of Mortgage BorrowerGrantor's rights, as debtor, to remain in possession of the end that the rights of Mortgage Borrower in, related Property which is subject to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease;
(ii) The Grantor shall not, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. without ▇▇▇▇▇▇▇▇.▇.'s written consent, elect to treat a Ground Lease as terminated under subsection 365(h)(1) of the Bankruptcy Code. Any such election made without ▇▇▇▇▇▇▇▇'s prior written consent shall be void;
(iii) As security for the Secured Obligations, Grantor unconditionally assigns, transfers and sets over to Grantee for the benefit of the Secured Parties all of Grantor's claims and rights to the payment of damages arising from any rejection of the Ground Lease by Fee Owner under the Bankruptcy Code. Grantee and Grantor shall proceed jointly or in the name of Grantor in respect of any claim, suit, action or proceeding relating to the rejection of the Ground 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 Fee Owner 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 Secured Obligations shall have been satisfied and discharged in full. Any amounts received by Grantee or Grantor as damages arising out of the rejection of the Ground Lease as aforesaid shall be applied to all costs and expenses of Grantee (including, without limitation, reasonable attorneys' fees and costs) incurred in connection with the exercise of any of its rights or remedies in accordance with the applicable provisions hereof;
(iv) Upon or anytime after the rejection of the Ground Lease by Fee Owner, pursuant to the Bankruptcy Code, Grantor shall not, without the prior written consent of Grantee, effect, or seek to cause, any offset of the amount of damages caused by such rejection, as against any rent or other amounts due under such Ground Lease. Grantor shall request such consent of Grantee in writing prior to seeking any such offset. If Grantee has failed to object to any such proposed offset within ten (10) Business Days after receiving notice thereof from the Grantor, the Grantor may proceed to offset damages only up to the amounts set forth in Grantor's notice to Grantee;
(v) If any action, proceeding, motion or notice shall be commenced or filed in respect of the Fee Owner of all or any part the Property subject to the Ground Lease in connection with any case under the Bankruptcy Code, Grantee and Grantor shall cooperatively conduct and control any such litigation with counsel agreed upon between Grantor and Grantee in connection with such litigation. Grantor shall, upon demand, pay to Grantee all reasonable costs and expenses (including attorneys' fees and costs) actually paid or actually incurred by Grantee or any Secured Party in connection with the cooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be secured by the Lien of this Security Instrument; and
(vi) Grantor shall reasonably promptly, after obtaining knowledge of such filing, notify Grantee in writing of any filing by or against Fee Owner of a petition under the Bankruptcy Code, such notice setting forth any information available to Grantor as to the date of such filing, the court in which such petition was filed, and the relief sought in such filing. Grantor shall promptly deliver to Grantee any and all notices, summons, pleadings, applications and other documents received by Grantor in connection with any such petition and any proceedings relating to such petition.
Appears in 1 contract
Sources: Deed of Trust (FelCor Lodging LP)
Ground Lease. (a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to)not, without the prior consent of Lender’s written consent, (w) take any action or fail to take exercise any action which would result in the surrender of the leasehold estate created by the Ground Lease option or the termination right to renew or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand in accordance with the terms of the related Ground Lease, and shall give immediate written notice to Lender and shall execute, acknowledge, deliver and record any document requested by Lender made at to evidence the lien of the related Mortgage on such extended or renewed lease term; provided, however, Borrower shall not be required to exercise any time within one particular such option or right to renew or extend (1or to permit the term of the Ground Lease to renew or extend automatically) year prior to the last day upon extent Borrower shall have received the prior written consent of Lender (which any consent may not be unreasonably withheld, delayed or conditioned) allowing Borrower to forego exercising such option may be exercised, and or right to renew or extend. If Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact shall fail to exercise any such option or right as aforesaid within thirty (30) days prior to the date when required, Lender may exercise the option or right as Borrower’s agent and attorney in fact as provided above in Lender’s own name or in the name of and upon on behalf of Borrowera nominee of Lender, as Lender may determine in the exercise of its sole and absolute discretion.
(b) Borrower shall not waive, excuse, condone or in any way release or discharge the Ground Lessor under the Ground Lease of or from the Ground Lessor’s material obligations, covenant and/or conditions under the related Ground Lease without the prior written consent of Lender (which power consent will not be unreasonably withheld, delayed or conditioned).
(c) Borrower shall not, without Lender’s prior written consent, surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modify or amend in a material adverse manner, the Ground Lease, other than an expiration of attorney the Ground Lease pursuant to its terms. Consent to one amendment, change, agreement or modification shall be irrevocable and shall not be deemed to be coupled with an interesta waiver of the right to require consent to other, future or successive amendments, changes, agreements or modifications. ▇▇▇▇▇▇▇▇Any acquisition of Ground Lessor’s interest in the Ground Lease by Borrower or any Affiliate of Borrower shall be accomplished by Borrower in such a manner so as to avoid a merger of the interests of lessor and lessee in the Ground Lease, unless consent to such merger is granted by Lender.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Ground Lease. (a) With respect to the Ground Lease, The applicable Borrower shall cause Mortgage Borrower to shall:
(i) except to Pay (or cause the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay payment of) all rents, additional rents and other sums required to be paid by Mortgage such Borrower, as tenant under and pursuant to the provisions of the subject Ground Lease, as and when such rent or other charge is payable (provided that such payments shall not be in duplication of any payments made by Lender pursuant to Section 3.12 hereof);
(ii) diligently perform and observe all of the terms, covenants and conditions of the subject Ground Lease on the part of Mortgage such Borrower, as tenant thereunder, to be performed and observed, prior to the expiration of any applicable grace period therein provided; and
(iii) promptly notify Lender of the giving of any written notice by the lessor Ground Lessor under any Ground Lease to Mortgage such Borrower of any default by Mortgage any Borrower in the performance or observance of any of the terms, covenants or conditions of such Ground Lease on the part of such Borrower, as tenant thereunder, to be performed or observed, and deliver to Lender a true copy of each such notice within two notice.
(2b) Business Days of receipt and Except as expressly permitted in this Agreement, Borrowers shall not, (ivi) promptly notify Lender cause or permit the occurrence of any bankruptcy, reorganization or insolvency proceeding of the lessor under any event that would cause a Ground Lease to terminate without notice or of any action by the landlord thereunder or would entitle such landlord to terminate such Ground Lease and the term thereof by giving notice thereofto Borrowers, and deliver to Lender a true copy of such notice within two (2ii) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the a Ground Lease or terminate or cancel such Ground Lease or (iii) without the termination prior consent of Lender, change, supplement, alter or cancellation amend a Ground Lease, either orally or in writing, and each applicable Borrowers hereby assigns to Lender, as further security for the payment of the Debt and for the performance and observance of the terms, covenants and conditions of the Mortgages, this Agreement and the other Loan Documents, all of the rights, privileges and prerogatives of the applicable Borrowers, as tenant under the Ground Lease, (x) to surrender the leasehold estate created by such Ground Lease or to terminate, cancel, modify, change, supplement, alter or amend such Ground Lease in any material respect, and any such surrender of the leasehold estate created by such Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of such Ground Lease in any material respect without the prior consent of Lender shall be void and of no force and effect. Notwithstanding anything herein to the contrary, and for the avoidance of doubt, the New Orleans Ground Lease may be terminated by the New Orleans Ground Lessor without the prior consent of Lender in accordance with the terms and conditions of Section 4 of the New Orleans Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(bc) With respect to the Ground Lease, if Mortgage If any Borrower shall default beyond all applicable notice and cure periods in the performance or observance of any material term, covenant or condition of the any Ground Lease on the part of Mortgage such Borrower, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of the Mortgage, this Agreement and shall fail to cure the same prior to the expiration other Loan Documents, and without waiving or releasing any Borrower from any of any applicable cure period provided thereunderits obligations hereunder, Lender 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 material terms, covenants and conditions of the such Ground Lease on the part of Mortgage Borrower such Borrower, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Mortgage such Borrower, to the end that the rights of Mortgage Borrower the applicable Borrowers in, to and under the such Ground Lease shall be kept unimpaired as a result thereof and free from default, even though the existence of such event of default or the nature thereof be questioned or denied by such Borrower or by any party on behalf of such Borrower. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Borrowers of the making of any such payment, the performance of any such act or the taking of any such action. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases or of parties to any REA, Lender and any Person designated as Lender's agent by Lender shall have, and are hereby granted, the right to enter upon the applicable Property at any reasonable time, on reasonable notice (which may be given verbally) and from time to time for the purpose of taking any such action. Lender may pay and expend such sums of money as Lender reasonably deems necessary for any such purpose and upon so doing shall be subrogated to any and all rights of the landlord under the subject Ground Lease Lease. Each Borrower hereby agrees to pay to Lender within five (5) Business Days after demand, all such sums so paid and expended by Lender, together with interest thereon from the day of such payment at the Default Rate. All sums so paid and expended by Lender and the interest thereon shall be secured by the legal operation and effect of the Mortgages.
(d) If a Ground Lessor shall deliver to Lender a copy of any written notice of default sent by said lessor to any Borrower, as tenant under the a Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. No Borrowers will subordinate or consent to the subordination of any Ground Lease to any mortgage, security deed, lease or other interest on or in the landlord's interest in all or any part of the Property, unless, in each such case, the written consent of Lender shall have been first had and obtained.
(e) No Borrower shall cause Mortgage Borrower acquire or permit any Affiliate or any other entity in which Guarantor owns an interest to exercise each individual optionacquire, if any, to extend or renew the term of the a Ground Lessor's interest in any Ground Lease upon demand by Lender made at any time within one (1) year prior to i.e., the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option fee interest in the name Property), whether through the exercise of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇any purchase option contained in such Ground Lease or otherwise unless Lender has consented thereto.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Loan Agreement (Parking REIT, Inc.)
Ground Lease. (a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower Property Owner to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage BorrowerProperty Owner, as tenant under and pursuant to the provisions of the any Ground Lease, (ii) diligently perform and observe all of the material terms, covenants and conditions of the each Ground Lease on the part of Mortgage BorrowerProperty Owner, as tenant thereunder, to be performed and observed, and (iii) promptly notify Lender of the giving of any written notice by the lessor landlord under any Ground Lease to Mortgage Borrower Property Owner of any event of default thereunder by Mortgage BorrowerProperty Owner in the performance or observance of any of the terms, covenants or conditions of any Ground Lease on the part of Property Owner, as tenant thereunder, to be performed or observed, and deliver to Lender a true copy of each such notice within two fifteen (215) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor landlord under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two fifteen (215) Business Days of Mortgage Property Owner’s or Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower Property Owner to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the any Ground Lease or the termination terminate or cancellation of the cancel any Ground Lease, (x) Lease or modify, change, supplement, alter or amend any Ground Lease (other than any modification with respect to (x) a reduction of Property Owner’s obligations thereunder including a reduction in the rent payable thereunder (which does not result in the termination or cancellation of the Ground Lease, either orally or in writing, or ) and (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect to the Ground Lease, if Mortgage Borrower otherwise of a ministerial nature). If Property Owner shall default in the performance or observance of any material term, covenant or condition of the any Ground Lease on the part of Mortgage BorrowerProperty Owner, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then, without limiting the generality of the other provisions of the Mortgage, this Agreement and the other Loan Documents, and without waiving or releasing Borrower from any of its obligations hereunder, subject to the terms of the Ground Lease and subject to the rights of Mortgage Lender, Lender 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 the any Ground Lease on the part of Mortgage Borrower Property Owner to be performed or observed on behalf of Mortgage BorrowerProperty Owner, to the end that the rights of Mortgage Borrower Property Owner in, to and under the such Ground Lease shall be kept unimpaired and free from default. If the landlord under the any Ground Lease shall deliver to Lender a copy of any written notice of an event of default under the such Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower Property Owner to exercise each individual option, if any, to extend or renew the term of each Ground Lease in accordance with the terms of the Ground Lease and/or upon prior written demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and and, subject to the rights of Mortgage Lender, Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of BorrowerBorrower (on behalf of Property Owner), which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇.▇
(b) Notwithstanding anything contained in any Ground Lease to the contrary, Borrower shall not permit Property Owner to further sublet any portion of any Property (other than as permitted pursuant to Section 5.7 of this Agreement) without prior written consent of Lender.▇▇▇▇▇▇▇▇
Appears in 1 contract
Ground Lease. (a) With respect to Grantor hereby represents and warrants that it holds all right, title, and interest in, to, and under the Ground Lease, Borrower both as to the lessor and lessee thereunder, and all representations, warranties, and agreements made hereunder are being made by Grantor in its capacity as both lessor and lessee. Grantor hereby agrees that the Ground Lease, together with all extensions, replacements, and modifications thereof, are and at all times shall cause Mortgage Borrower be subject and subordinate to (i) except this Deed of Trust and all terms hereof and, to the extent reserved for by Mortgage Lender pursuant to Section 9.8 that any provisions of the Mortgage Ground Lease are in conflict with any provisions of this Deed of Trust or any other Loan AgreementDocuments,
(b) Grantor shall at all times promptly and faithfully keep, pay observe and perform in all rentsmaterial respects, additional rents and other sums required or cause to be paid by Mortgage Borrowerkept, as tenant under observed and pursuant performed in all material respects, all the covenants, agreements and conditions contained in the Ground Lease, to be kept, observed and performed, and shall in all material respects conform to and comply with the provisions terms and conditions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower Grantor shall not (and shall not do or permit Mortgage Borrower to)any thing to be done, without the prior consent doing of Lenderwhich, (w) take or refrain from doing any action thing, the omission of which, would impair or fail tend to take any action which impair the security of this Deed of Trust, or would result in the surrender of the leasehold estate created by be grounds for a termination the Ground Lease or the termination or cancellation a declaration of a forfeiture of any interest in the Ground Lease, .
(xc) Grantor shall not modify, change, supplement, alter or amend the Ground LeaseLease in any respect, either orally or in writing, and Grantor shall not terminate, cancel, sever or (y) vacate surrender, or suffer the premises upon the land underlying termination, cancellation, severance or surrender of, the Ground Lease.
(b) With respect Lease or the ground leasehold estate, and shall not in any way release or discharge any party to or under the Ground Lease, if Mortgage Borrower or any of its successors or assigns, of or from any obligations, covenants, conditions and agreements by said party to be kept, observed or performed. Grantor hereby expressly assigns, releases, relinquishes and surrenders unto Beneficiary all its right, power and authority to cancel, terminate, surrender, sever, amend, modify or alter in any respect the terms and provisions of the Ground Lease, the leasehold estate, and any
(d) No release or forbearance of any of Grantor's obligations under the Ground Lease pursuant to the terms thereof, or otherwise, shall release Grantor of its obligations under this Deed of Trust or any instrument supplemental hereto.
(e) Grantor shall give Beneficiary immediate notice of any default under the Ground Lease and Grantor shall furnish to Beneficiary immediately any and all information which Beneficiary may request concerning the performance and observance of all covenants, agreements and conditions contained in the performance Ground Lease, observed and performed and concerning the compliance with all terms and conditions of the Ground Lease. Grantor hereby authorizes Beneficiary or its representatives to make investigations and examinations concerning such performance, observance and compliance, and Grantor, upon request, shall promptly deposit with Beneficiary any and all documentary evidence relating to such performance, observance and compliance and copies of any termand all notices, covenant communications, plans, specifications or other instruments or documents received or given by Grantor in any way relating to or affecting the Ground Lease which may concern or affect the estate of the lessor or the lessee in or under the Ground Lease or in the leased premises thereby demised.
(f) In the event of any failure by Grantor to keep, observe or perform any covenant, agreement or condition contained in the
(g) Grantor shall not, without Beneficiary's prior written consent, elect to treat the Ground Lease or the leasehold estate as terminated under Subsection 365(h)(1) of the Bankruptcy Code, after rejection or disaffirmance of the Ground Lease on by the part of Mortgage Borrower, as tenant lessor thereunder, or its successors and assigns, or by any trustee of any such party, and any such election made without such consent shall be void and ineffective.
(h) Grantor hereby unconditionally assigns, transfers and sets over unto Beneficiary all of Grantor's claims and rights to the payment of damages that may hereafter arise as a result of any rejection or disaffirmance of the Ground Lease by the lessor thereunder, or its successors and assigns, or by any trustee of any such party pursuant to the Bankruptcy Code. Beneficiary shall have and is hereby granted the right to proceed, in its own name or in the name of Grantor, in
(i) In the event, that, pursuant to Subsection 365(h)(2) of the Bankruptcy Code, Grantor seeks to offset against the rent or other payments payable under the Ground Lease, the amount of any damages caused by the nonperformance by the lessor thereunder, or its successors and assigns, of such party's obligations under the Ground Lease after rejection or disaffirmance thereof under the Bankruptcy Code, Grantor shall, prior to effecting such offset, notify Beneficiary of Grantor's intent to do so, setting forth the amounts proposed to be so offset and the basis therefor. Beneficiary shall
(j) Grantor shall, promptly after obtaining knowledge thereof, give written notice to Beneficiary of any actual or contemplated filing by or against the lessor under the Ground Lease, or its successors and assigns, of a petition under the Bankruptcy Code, and use its best efforts to give prompt oral notice to Beneficiary of such actual or contemplated filing. The aforesaid written notice shall set forth any information available to Grantor concerning the date on which such petition was filed or is expected to be filed, and the relief sought therein. Grantor shall promptly after receipt thereof, deliver to Beneficiary any and all notices, summonses, pleadings, applications and other documents received by Grantor in connection with any such petition and any proceedings relating thereto.
(k) In the event that any action, proceeding, motion or notice shall be commenced or filed in respect of either party under the Ground Lease, or its successors and assigns, or the leased premises, or the Security or any part thereof, in connection with any cause under the Bankruptcy Code, Beneficiary shall have, and is hereby granted, the option, to the exclusion of Grantor exercisable upon notice from Beneficiary to Grantor, to conduct and control any such litigation with counsel of Beneficiary's choice. Beneficiary may proceed, in its own name or in the name of Grantor, in connection with any such litigation, and Grantor agrees to execute any and all powers, pleadings, authorizations, consents and other documents required by Beneficiary in connection therewith. Notwithstanding the foregoing, Grantor shall be entitled to participate in any such actions or proceedings, at its own expense and with counsel of its choice, if and so long as Beneficiary shall be satisfied that Grantor's participation therein and the positions asserted by Grantor in connection therewith will not materially impair the security of this Deed of Trust. Grantor shall, upon demand, pay to Beneficiary all costs and expenses (including, without limitation, attorneys' fees) paid or incurred by Beneficiary in connection with the prosecution or conduct of any such proceedings, together with interest at the Default Rate, and, to the extent permitted by law, such costs, expenses and interest shall be added to the Indebtedness and shall fail be secured hereby. Grantor shall not, without the prior written consent of Beneficiary, commence any action, suit, proceeding or case, or file any application or make any motion, in respect of the Ground Lease in any such case under the Bankruptcy Code.
(l) In the event that a petition under the Bankruptcy Code shall be filed by or against Grantor and Grantor or any trustee of Grantor shall decide to cure reject or disaffirm the same prior Ground Lease pursuant to the expiration Bankruptcy Code, Grantor shall give Beneficiary at least ten (10) business days prior written notice of any applicable cure period provided thereunder, Lender the date on which application shall be made to the court for authority to reject or disaffirm the Ground Lease. Beneficiary shall have the right, but shall be under no not the obligation, to pay any sums serve upon Grantor or such trustee within such ten (10) day period a notice stating that (i) Beneficiary demands that Grantor or such trustee assume and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of assign the Ground Lease on to Beneficiary pursuant to Section 365 of the part Bankruptcy Code, and (ii) Beneficiary covenants to cure, or provide adequate assurance of Mortgage Borrower to be performed or observed on behalf prompt cure of, all defaults and provide adequate assurance of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default future performance under the Ground Lease. In the event that Beneficiary serves such notice upon Grantor or such trustee, neither Grantor nor such trustee shall seek to reject or disaffirm the Ground Lease and Grantor and such trustee shall comply with such demand within thirty (30) days after such notice shall constitute full protection have been given, subject to Lender for Beneficiary's performance of such covenant.
(m) In the event that a petition under the Bankruptcy Code shall be filed by or against Grantor, and if within thirty (30) days after the date of filing of such petition neither Grantor nor any trustee of Grantor shall take any affirmative action taken to assume, reject or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of disaffirm the Ground Lease upon demand by Lender made at any time within one (1) year prior pursuant to the last day Bankruptcy Code, then Beneficiary shall have the right, but not the obligation, to serve upon Grantor or such trustee a notice stating that (i) Beneficiary demands
(n) Grantor hereby assigns, transfers and sets over to Beneficiary a nonexclusive right to apply to the Bankruptcy Court under Subsection 365(d)(4) of the Bankruptcy Code for an order extending the period during which any such option the Ground Lease may be exercisedrejected, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise disaffirmed or assumed after the entry of any such option order for relief in respect of Grantor under Chapter 7 of the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇Bankruptcy Code.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Deed of Trust and Security Agreement (Cornerstone Properties Inc)
Ground Lease. (a) With respect to the Ground Lease, The Co-Borrower shall pay or cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay be paid all rents, additional rents and other sums required to be paid by Mortgage the Co-Borrower, as tenant under and pursuant to the provisions of each Ground Lease on or before the date on which such rent or other charge is payable. Upon request of the Administrative Agent, the Co-Borrower shall deliver to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all such rents and other sums payable, pursuant to each Ground Lease, which are then due and payable, have been paid.
(iib) The Co-Borrower shall diligently perform and observe all of the terms, covenants and conditions of the each Ground Lease on the part of Mortgage the Co-Borrower, as tenant thereunder, to be performed and observed prior to the expiration of any applicable grace period therein provided and do everything necessary to preserve and to keep unimpaired and in full force and effect each Ground Lease.
(iiic) The Co-Borrower shall promptly notify Lender the Administrative Agent of the giving of any written notice by the lessor under any Ground Lease to Mortgage the Co-Borrower of any default by Mortgage the Co-Borrower, as tenant lessee thereunder, and promptly deliver to Lender the Administrative Agent a true copy of each such notice within two notice.
(2d) Business Days The Co-Borrower shall enforce each covenant or obligation of receipt and each Ground Lease in accordance with its terms.
(ive) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding Upon the request of the Administrative Agent, the Co-Borrower shall cooperate with the Administrative Agent and the Lenders and, to the extent such conditions have not already been satisfied by each lessor’s execution and delivery of the applicable Ground Lease Estoppel, do such acts as are within its rights and powers to cause the Administrative Agent or its successor on behalf of the Lenders to be deemed a “leasehold mortgagee” or its equivalent under each Ground Lease during all times prior to the satisfaction of the Obligations in full.
(f) The Co-Borrower shall deliver to each Ground Lessor under each Ground Lease, if requested by the Administrative Agent or any successor, written notice of the identity of each successor to the Administrative Agent.
(g) The Co-Borrower shall furnish to the Administrative Agent all information that the Administrative Agent may reasonably request from time to time concerning each Ground Lease and the Co-Borrower’s compliance with each Ground Lease.
(h) The Co-Borrower, promptly upon learning that any lessor under any Ground Lease has failed to perform the terms and provisions under such Ground Lease and immediately upon learning of a rejection or disaffirmance or purported rejection or disaffirmance of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease pursuant to any state or federal bankruptcy law, shall notify the termination or cancellation Administrative Agent thereof. Promptly after execution of any amendment to the Deed of Trust covering any Project subject to a Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or Co-Borrower shall notify the applicable lessor in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect a form satisfactory to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition Administrative Agent of the Ground Lease on execution and delivery of the part Deed of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender Trust or such amendment. The Administrative Agent shall have the right, but shall be under no not the obligation, to pay give any sums lessor under any Ground Lease at any time any notice described in this subsection or otherwise relating to the Deed of Trust or the Loans.
(i) The Co-Borrower shall promptly notify the Administrative Agent of any request that any party to any Ground Lease makes for arbitration or other dispute resolution procedure pursuant to any such Ground Lease and to perform any act or take any action as may be appropriate to cause all of the termsinstitution of any such arbitration or dispute resolution. The Co-Borrower hereby authorizes the Administrative Agent to participate in any such arbitration or dispute resolution but such participation shall not, covenants and conditions unless an Event of Default exists, be to the exclusion of the Co-Borrower. The Co-Borrower shall promptly deliver to the Administrative Agent a copy of the determination of each such arbitration or dispute resolution mechanism.
(j) If after an Event of Default the Administrative Agent or its designee shall acquire or obtain a new ground lease following a termination of any Ground Lease, then the Co-Borrower shall have no right, title or interest whatsoever in or to such new Ground Lease, or any proceeds or income arising from the estate arising under any such new Ground Lease, including from any sale or other disposition thereof. The Administrative Agent or its designee shall hold such new ground lease free and clear of any right or claim of the Co-Borrower.
(k) In the case of any Project subject to a Ground Lease, and without limiting any provision in the applicable Deed of Trust, upon the acquisition by the Co-Borrower or any Affiliate of the Underlying Fee Estate in the portion of such Project that is subject to a Ground Lease on there shall be no merger of the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and leasehold estate under the Ground Lease with such Underlying Fee Estate without the prior written consent of the Administrative Agent, except as expressly permitted in Section 9.14.
(l) Notwithstanding anything to the contrary contained in the Loan Agreement or the other Loan Documents, Sections 9.01(a) and 9.03 of the Loan Agreement shall not prohibit a merger of the Co-Borrower into the Borrower or the transfer of all of the interests in the Co-Borrower or all of the Co-Borrower Projects to the Borrower, subject in each case to the Liens and security interests created by the Loan Documents.
(m) Co-Borrower shall be kept unimpaired permitted to transfer the Co-Borrower Projects (either with or without the Projects owned by the Borrower) on the same terms and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, conditions as set forth in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term Section 9.03(a)(iii) of the Ground Lease upon demand Loan Agreement; provided, however, that no such transfer
(xix) Insert a new Section 9.03(a)(ix) as follows: “(ix) Transfers by Lender made at HBRCT LLC, a Hawaii limited liability company, or any time within one successor in interest thereto, of its direct or indirect ownership or other Equity Interests in the Co-Borrower.”;
(1xx) year prior to The text “(except for the Permitted Public REIT Transfer, any Transfer of publicly-traded stocks in the Permitted Public REIT or any Transfers following a Permitted Public REIT Transfer that are permitted by Section 9.03(a)(viii))” in the second sentence of the last day upon which paragraph of Section 9.03 shall be restated as follows: “(except for the Permitted Public REIT Transfer, any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorneyTransfer of publicly-in-fact to exercise any such option traded stocks in the name of and upon behalf of BorrowerPermitted Public REIT, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇any Transfer permitted by Section 9.03(a)(ix) or any Transfers following a Permitted Public REIT Transfer that are permitted by Section 9.03(a)(viii))”;
(xxi) Insert a new Section 9.04(i) as follows:
Appears in 1 contract
Sources: Joinder and Supplement Agreement (Douglas Emmett Inc)
Ground Lease. (a) With respect to Borrower will, and will cause Owner to, comply in all material respects with the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants terms and conditions of the Ground Lease on Lease. Borrower will not, and will not permit Owner to, do or permit anything to be done, the part doing of Mortgage Borrowerwhich, as tenant thereunderor refrain from doing anything, (iii) promptly notify Lender the omission of which, will impair or tend to impair the security of the giving of any written notice by the lessor Premises under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation will be grounds for declaring a forfeiture of the Ground Lease. Borrower shall, and shall cause Owner to, promptly send copies of all notices of default which Owner may receive under the Ground Lease to Lender.
(xb) Borrower shall, and shall cause Owner to, enforce the Ground Lease and not terminate, modify, cancel, change, supplement, alter or amend the Ground Lease, either orally or waive, excuse, condone or in writing, any way release or (y) vacate discharge Ground Lessor of or from any of the premises upon the land underlying the material covenants and conditions to be performed or observed by Ground LeaseLessor.
(bc) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but shall be under no not the obligation, to pay perform any sums obligations of Borrower or Owner under the terms of the Ground Lease during the continuance of an Event of Default. All costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) so incurred, shall be treated as an advance secured by this Agreement, shall bear interest thereon at the Default Rate from the date of payment by Lender until paid in full and shall be paid by Borrower to Lender during the continuance of an Event of Default on demand. No performance by Lender of any obligations of Borrower or Owner shall constitute a waiver of any Event of Default arising by reason of Borrower’s or Owner’s failure to perform the same. If Lender shall make any payment or perform any act or take any action as may be appropriate to cause all in accordance with this Section 2.36(c), Lender will notify Borrower of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy making of any written notice such payment, the performance of default under any such act, or the Ground Lease, taking of any such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. action.
(d) Borrower shall cause Mortgage Borrower Owner to exercise each individual option, if any, to extend or renew the term of the Ground Lease not less than thirty (30) days prior to the last day upon which any such option may be exercised (and in all events within five (5) days after demand by Lender made at any time within one (1) year prior to of the last day upon which any such option may be exercised), and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon on behalf of BorrowerOwner to so exercise such option if Borrower fails to cause Owner to exercise as herein required, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇Borrower shall give Lender notice of Owner’s exercise of any such option to extend or renew the term of the Ground Lease within five (5) days of the exercise of any such option.▇
(e) Subject to Mortgage Lender’s rights under the Mortgage Loan and Senior Mezz Lender’s rights under the Senior Mezz Loan, Borrower shall cause Owner to assign, transfer and set over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by the Ground Lessor of the Ground Lease under the Bankruptcy Code. Borrower shall notify Lender promptly (and in any event within ten (10) days) of any claim, suit, action or proceeding relating to the rejection of the Ground Lease. Lender is hereby irrevocably appointed as Borrower’s attorney-in-fact, coupled with an interest, with exclusive power to file and prosecute, to the exclusion of Borrower, any proofs of claim, complaints, motions, applications, notices and other documents, in any case in respect of the Ground Lessor under the Bankruptcy Code during the continuance of an Event of Default. Borrower may make any compromise or settlement in connection with such proceedings (subject to Lender’s reasonable approval); provided, however, that Lender shall be authorized and entitled to compromise or settle any such proceeding if such compromise or settlement is made after the occurrence and during the continuance of an Event of Default. Borrower shall promptly execute and deliver to Lender any and all instruments reasonably required in connection with any such proceeding after request therefor by Lender. Except as set forth above, Borrower shall not, nor permit Owner to, adjust, compromise, settle or enter into any agreement with respect to such proceedings without the prior written consent of Lender, which consent shall not be unreasonably withheld or delayed.▇▇▇▇▇▇▇▇
(f) Borrower shall not permit Owner to, without Lender’s prior written consent, elect to treat the Ground Lease as terminated under Section 365(h)(1) of the Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(g) If pursuant to Section 365(h)(2) of the Bankruptcy Code, Owner seeks to offset against the rent reserved in the Ground Lease the amount of any damages caused by the non-performance by the Ground Lessor of any of the Ground Lessor’s obligations under the Ground Lease after the rejection by the Ground Lessor of the Ground Lease under the Bankruptcy Code, Borrower shall, prior to Owner effecting such offset, notify Lender of its intention to do so, setting forth the amounts proposed to be so offset and the basis therefor. If Lender has failed to object as aforesaid within ten (10) days after notice from Borrower in accordance with the first sentence of this Section 2.35(g), Borrower may permit Owner to proceed to effect such offset in the amounts set forth in Borrower’s notice. Neither Lender’s failure to object as aforesaid nor any objection or other communication between Lender and Borrower relating to such offset shall constitute an approval of any such offset by Lender. Borrower shall indemnify and save Lender harmless from and against any and all claims, demands, actions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever (including, without limitation, reasonable attorneys’ fees and disbursements) arising from or relating to any such offset by Owner against the rent reserved in the Ground Lease.
(h) Borrower shall immediately, after obtaining knowledge thereof, notify Lender of any filing by or against the Ground Lessor of a petition under the Bankruptcy Code. Borrower shall thereafter forthwith give written notice of such filing to Lender, setting forth any information available to Borrower or Owner as to the date of such filing, the court in which such petition was filed, and the relief sought therein. Borrower shall promptly deliver to Lender following receipt any and all notices, summonses, pleadings, applications and other documents received by Borrower or Owner in connection with any such petition and any proceedings relating thereto.
(i) Borrower shall, and shall cause Owner to, perform all other covenants with respect to the Ground Lease as set forth in the Mortgage for so long as any portion of the Debt remains outstanding (regardless of whether the Mortgage Loan remains outstanding).
Appears in 1 contract
Sources: Loan and Security Agreement (Morgans Hotel Group Co.)
Ground Lease. (a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground LeaseLease as and when such rent or other charge is payable, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed and observed prior to the expiration of any applicable grace period therein provided, and (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease Lessor to Mortgage Borrower of any default by Mortgage Borrower in the performance or observance of any of the terms, covenants or conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receiptnotice. Borrower shall not (and shall not permit Mortgage Borrower to)not, without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination terminate or cancellation of cancel the Ground Lease, (x) Lease or modify, change, supplement, alter or amend the Ground Lease, in any respect, either orally or in writing, or (y) vacate and Borrower hereby assigns to Lender, as further security for the premises upon payment of the land underlying Debt and for the Ground Lease.
(b) With respect to performance and observance of the terms, covenants and conditions of this Loan Agreement, all of the rights, privileges and prerogatives of Borrower, as tenant under the Ground Lease, if Mortgage to surrender the leasehold estate created by the Ground Lease or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease, and any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease without the prior consent of Lender shall be void and of no force and effect. If Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of this Loan Agreement, and shall fail to cure the same prior to the expiration without waiving or releasing Borrower from any of any applicable cure period provided thereunderits obligations hereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower Borrower, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default, even though the existence of such event of default or the nature thereof be questioned or denied by Borrower or by any party on behalf of Borrower. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Borrower of the making of any such payment, the performance of any such act, or the taking of any such action. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any person designated by Lender shall have, and are hereby granted, the right to enter upon the Project at any time and from time to time for the purpose of taking any such action. Lender may pay and expend such sums of money as Lender deems necessary for any such purpose and upon so doing shall be subrogated to any and all rights of the Ground Lessor. Borrower hereby agrees to pay to Lender immediately and without demand, all such sums so paid and expended by Lender, together with interest thereon from the day of such payment at the Default Rate. All sums so paid and expended by Lender and the interest thereon shall be secured by the legal operation and effect of the Mortgage. If the landlord under the Ground Lease Lessor shall deliver to Lender a copy of any written notice of default sent by said Ground Lessor to Borrower, as tenant under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower will not subordinate or consent to exercise each individual option, if any, to extend or renew the term subordination of the Ground Lease upon demand to any mortgage, security deed, lease or other interest on or in the Ground Lessor’s interest in all or any part of the Project, unless, in each such case, the written consent of Lender shall have been first had and obtained. Each Lease hereafter made and each renewal of any existing Lease shall provide that, (a) in the event of the termination of the Ground Lease, the Lease shall not terminate or be terminated by Lender made at the tenant; (b) in the event of any time within one action for the foreclosure of the Mortgage, the Lease shall not terminate or be terminable by the subtenant by reason of the termination of the Ground Lease unless the tenant is specifically named and joined in any such action and unless a judgment is obtained therein against the tenant; and (1c) year prior in the event that the Ground Lease is terminated as aforesaid, the tenant shall attorn to the last day upon which any Ground Lessor or to the purchaser at the sale of the Project on such option foreclosure, as the case may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇be.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Leasehold Deed to Secure Debt and Security Agreement (Meredith Enterprises Inc)
Ground Lease. (a) With respect to the each Ground Lease, Borrower shall cause Mortgage Borrower to covenants and agrees as follows: (i) to promptly and faithfully observe, perform and comply with all the terms, covenants and provisions thereof on its part to be observed, performed and complied with, at the times set forth therein, and to do all things necessary to preserve unimpaired its rights thereunder; (ii) not to do, permit, suffer or refrain from doing anything, as a result of which there would reasonably be expected to be a default under any of the terms thereof; (iii) not to terminate (pursuant to the terms thereof or otherwise), cancel, surrender, modify, amend or in any way alter or permit the alteration of any of the terms thereof and not to release the Ground Lessor under the Ground Lease from any obligations imposed upon it thereby without the consent of Lender, not to be unreasonably withheld, delayed or conditioned (provided that, notwithstanding anything contained herein or in any other Loan Document, Borrower may extend the term of any Ground Lease pursuant to the terms thereof without obtaining the consent of Lender); (iv) not to assign the Ground Lease in whole or in part nor sublet the premises demised under the Ground Lease in whole except in accordance with the provisions of this Agreement; (v) to the extent reserved for by Mortgage Lender pursuant to Section 9.8 Borrower has actual knowledge of the Mortgage Loan Agreementsame, pay to give Lender prompt written notice of any default under the Ground Lease by Borrower that continues to exist beyond any notice and cure period available to Borrower under the applicable Ground Lease or the Ground Lessor, and to deliver to Lender copies of each notice of default and all rentsother material notices, communications, plans, specifications and other similar instruments received or delivered by Borrower in connection therewith within two (2) Business Days of Borrower’s receipt of the same; and (vi) to furnish to Lender such information and evidence as Lender may reasonably require concerning Borrower’s due observance, performance and compliance with the terms, covenants and provisions thereof provided such evidence is in Borrower’s possession or readily available at no material out-of-pocket cost to Borrower. Notwithstanding anything to the contrary contained herein, to the extent Lender’s prior approval is required for any matters set forth in this Section 5.1.24, Lender shall have ten (10) Business Days from receipt of written request together with such other information as is necessary for Lender’s review of the request, to approve or disapprove such matter, provided that the front page of any such request to Lender is marked, in not less than fourteen (14) point bold face type, underlined and using all capital letters, as follows: “LENDER’S RESPONSE IS REQUIRED WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER.” In the event additional information is reasonably requested by Lender within such ten (10) Business Day period, Lender shall have five (5) Business Days from receipt of all additional requested information in which to approve or disapprove such the applicable matter, notwithstanding the date of the original request. In the event that Lender fails to respond to the applicable matter in question within such time frames as set forth above, Lender’s failure to respond shall constitute Lender’s deemed approval of the particular approval request.
(b) In the event of any (A) default by Borrower in the performance of any part of its obligations under any Ground Lease that continues to exist beyond any notice and cure period available to Borrower under the applicable Ground Lease, including, without limitation, any default in the payment of rent, additional rents rent and other sums required charges and impositions made payable by the tenant thereunder, or (B) receipt by Lender of any written notice from a Ground Lessor of any default by Borrower under the related Ground Lease which notice starts any cure period available to Lender under such Ground Lease to cure such default, then, in each and every case under (A) or (B) above, Lender may, at its option and without notice, cause such default or defaults to be remedied and otherwise exercise any and all of the rights of Borrower thereunder in the name of and on behalf of Borrower but no such action by Lender shall release Borrower from any default under this Agreement. Borrower shall, on demand, reimburse Lender for all advances made and expenses incurred by Lender in curing any such default (including, without limitation, reasonable attorneys’ fees and disbursements), together with interest thereon at the Default Rate from the date that an advance is made or expense is incurred, to and including the date the same is paid and such monies so expended by Mortgage Lender with interest thereon shall be secured by this Agreement.
(c) If Borrower acquires the fee title or any other estate, title or interest in any Ground Lease Property, or any part thereof, the lien of the applicable Security Instrument shall attach to, cover and be a lien upon such acquired estate, title or interest and same shall thereupon be and become a part of the Property. Borrower agrees to execute all instruments and documents which Lender may reasonably require to ratify, confirm and further evidence Lender’s lien on the acquired estate, title or interest. Furthermore, Borrower hereby appoints Lender its true and lawful attorney-in-fact to execute and deliver all such instruments and documents in the name and on behalf of Borrower. This power, being coupled with an interest, shall be irrevocable as long as the Debt remains unpaid but may only be exercised if an Event of Default exists.
(d) If any Ground Lease is canceled or terminated, and if Lender or its nominee shall acquire an interest in any new lease or all or any part of the related Ground Lease Property, Borrower shall have no right, title or interest in or to the new lease or the leasehold estate created by such new lease.
(e) Borrower shall use commercially reasonable efforts at no material out-of-pocket cost to Borrower, as tenant under obtain and pursuant deliver to Lender from time to time within ten (10) Business Days after written demand by Lender, an estoppel certificate from any Ground Lessor setting forth, with respect to the provisions related Ground Lease (i) the name of the tenant thereunder, (ii) that the Ground Lease has not been modified or, if it has been modified, the date of each modification (together with copies of each such modification), (iii) the base rent and additional rent and other charges payable under the Ground Lease, (iiiv) diligently perform the date to which all rental charges have been paid by the tenant under the Ground Lease, and observe (v) whether there are any defaults or alleged defaults of the tenant under the Ground Lease or if there are any events which have occurred which with notice, the passage of time or both, would constitute a default under the Ground Lease, and, if there are, setting forth the nature thereof in reasonable detail, provided that, unless an Event of Default exists, Borrower shall not be required to use commercially reasonable efforts to obtain such estoppel more than one (1) time per year.
(f) Notwithstanding anything to the contrary contained herein, this Agreement shall not constitute an assignment of any Ground Lease within the meaning of any provision thereof prohibiting its assignment and Lender shall have no liability or obligation thereunder by reason of its acceptance of this Agreement. Lender shall be liable for the obligations of the tenant arising under any Ground Lease for only that period of time which Lender is in possession of the related Ground Lease Property and has acquired, by foreclosure or otherwise, and is holding all of Borrower’s right, title and interest therein.
(g) No release or forbearance of any of Borrower’s obligations under any Ground Lease, pursuant to the Ground Lease or otherwise, shall release Borrower from any of its obligations under this Agreement or the other Loan Documents.
(h) Borrower shall enforce the obligations of each Ground Lessor under the applicable Ground Lease to the end that Borrower may enjoy all of the rights granted to it under the Ground Lease, and will promptly notify Lender of any default known to Borrower by the Ground Lessor in the performance or observance of any of the terms, covenants and conditions of the Ground Lease on the part of Mortgage BorrowerLease. If, as tenant thereunder, (iii) promptly notify Lender of the giving of pursuant to any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the related Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease Lessor shall deliver to Lender a copy of any written notice of default given to Borrower, as lessee under the such Ground Lease, and which notice starts any cure period available to Lender under such Ground Lease to cure such default, such notice shall constitute full authority and protection to Lender for any action taken or omitted to be taken by Lender, in good faith, faith and in reliance thereon. .
(i) Borrower shall cause Mortgage give Lender prompt notice of the commencement of any arbitration or appraisal proceeding under and pursuant to the provisions of any Ground Lease. Lender shall have the right to intervene and participate in any such proceeding and Borrower shall confer with Lender and its attorneys and experts and cooperate with them to the extent that Lender deems reasonably necessary for the protection of Lender.
(j) Upon the request of Lender, Borrower will exercise all rights of arbitration conferred upon it by any Ground Lease. If at any time such proceeding shall be continuing, a default by Borrower beyond any applicable cure period in the performance or observance of any covenant, condition or other requirement of any Ground Lease or of this Agreement, on the part of Borrower to exercise each individual optionbe performed or observed shall have occurred and be continuing, if anyLender shall have, and is hereby granted, the sole and exclusive right to designate and appoint on behalf of Borrower, the arbitrator or arbitrators, or appraiser, in such proceeding.
(k) With respect to any Ground Lease requiring the periodic payment of any rent, Borrower shall deliver to Lender reasonably satisfactory proof of payment thereof within thirty (30) days following Lender’s request therefore.
(l) Borrower hereby unconditionally and irrevocably assigns to Lender (i) any right which Borrower has pursuant of the terms of any Ground Lease to renew and/or extend or renew the term thereof; provided, however, that Lender shall only exercise such right during the continuance of an existing Event of Default or in the event Lender reasonably determines that such exercise is necessary to protect its interest in the related Ground Lease Property; (ii) any right which Borrower has pursuant to the terms of any Ground Lease to cancel or terminate the Ground Lease; provided, however, that Lender shall only exercise such right after a foreclosure or its acceptance of a deed-in-lieu of foreclosure; and (iii) any option or right that Borrower has pursuant to any Ground Lease to purchase any or all of the premises demised thereunder.
(m) In the event that it is claimed by any Governmental Authority that any tax or governmental charge or imposition is due, unpaid or payable by Borrower upon or in connection with any Ground Lease, Borrower shall promptly either (i) pay such tax, charge or imposition when due and deliver to Lender reasonably satisfactory proof of payment thereof or (ii) contest such tax in accordance with the applicable provisions of the Loan Documents. If liability for such tax is asserted against Lender, Lender will give to Borrower prompt notice of such claim, and Borrower, upon complying with the provisions of the Loan Documents shall have full right and authority to contest such claim of taxability.
(n) Notwithstanding anything to the contrary contained in this Agreement with respect to any Ground Lease:
(i) If any Ground Lease is terminated for any reason in the event of the rejection or disaffirmance of the Ground Lease upon demand by Lender made at any time within one (1) year prior the related Ground Lessor pursuant to the last day upon which Bankruptcy Code, or any other law affecting creditor’s rights, (i) Borrower, promptly after obtaining notice thereof, shall give notice thereof to Lender, (ii) Borrower, without the prior written consent of Lender, shall not elect to treat such option may be exercisedGround Lease as terminated pursuant to Section 365(h) of the Bankruptcy Code or any comparable federal or state statute or law, and any election by Borrower made without such consent shall be void, and (iii) the terms, covenants and conditions of this Loan Agreement and the Loan Documents hereby extends to and covers Borrower’s possessory rights under Section 365(h) of the Bankruptcy Code and to any claim for damages due to the rejection of such Ground Lease or other termination of such Ground Lease. In addition, Borrower hereby expressly authorizes assigns irrevocably to Lender Borrower’s rights to treat any Ground Lease as terminated pursuant to Section 365(h) of the Bankruptcy Code and appoints to offset rents under any Ground Lease in the event any case, proceeding or other action is commenced by or against the related Ground Lessor under the Bankruptcy Code or any comparable federal or state statute or law. Without Lender’s prior written consent, Borrower shall not seek to offset, pursuant to Subsection 365(h) of the Bankruptcy Code, against the rent reserved in any Ground Lease, the amount of any damages caused by the nonperformance by the related Ground Lessor of any of its obligations under such Ground Lease after the rejection by such Ground Lessor of such Ground Lease under the Bankruptcy Code.
(ii) As security for the Debt, Borrower unconditionally assigns, transfers and sets over to Lender its attorneyall of Borrower’s (a) right to reject any Ground Lease under Section 365 of the Bankruptcy Code or any comparable federal or state statute or law with respect to any case, proceeding or other action commenced by or against Borrower under the Bankruptcy Code or comparable federal or state statute or law, (b) right to seek an extension of the 60-in-fact day period within which Borrower must assume or reject any Ground Lease under Section 365 of the Bankruptcy Code or any comparable federal or state statue or law with respect to exercise any such option case, proceeding or other action commenced by or against Borrower under the Bankruptcy Code or comparable federal or state statute or law ,and (c) claims and rights to the payment of damages arising from any rejection by any Ground Lessor of any Ground Lease under the Bankruptcy Code. Lender shall have the right to proceed in the name of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of any Ground Lease, including, without limitation, the right to file and upon behalf prosecute any proofs of Borrowerclaim, which power complaints, motions, applications, notices and other documents in any case in respect of attorney the related Ground Lessor 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 Debt shall have been satisfied and discharged in full. Any amounts received by Lender or Borrower as damages arising out of the rejection of any Ground Lease as aforesaid shall be irrevocable applied to all reasonable out-of-pocket costs and expenses of Lender (including, without limitation, reasonable out-of-pocket attorneys’ fees and costs) incurred in connection with the exercise of any of its rights or remedies in accordance with the applicable provisions of this Agreement. If the foregoing assignment is not effective under applicable law and Borrower shall desire to so reject any Ground Lease, at Lender’s request, Borrower shall assign its interest in such Ground Lease to Lender in lieu of rejecting such Ground Lease, upon receipt by Borrower of notice from Lender of such request together with Lender’s agreement to cure any existing defaults of Borrower under such Ground Lease.
(iii) If any action, proceeding, motion or notice shall be deemed commenced or filed in respect of any Ground Lessor or all or any part of the related Ground Lease Property in connection with any case under the Bankruptcy Code, Lender and Borrower shall cooperatively conduct and control any such litigation with counsel agreed upon between Borrower and Lender in connection with such litigation. Borrower shall, upon demand, pay to be coupled with an interest. ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇Lender all reasonable out-of-pocket costs and expenses (including reasonable out-of-pocket attorneys’ fees and costs) actually paid or actually incur
Appears in 1 contract
Ground Lease. (a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇its
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Ground Lease. (a) With respect Borrower shall not cause or permit Mortgage Borrower to, without Lender’s written consent (which consent may not be unreasonably withheld, delayed or conditioned), fail to exercise any option or right to renew or extend the term of any Ground Lease, and Borrower shall give prompt written notice to Lender; provided, however, Borrower shall not be required to cause Mortgage Borrower to (i) except exercise any particular such option or right to renew or extend to the extent reserved for by Borrower shall have received the prior written consent of Lender (which consent may not be unreasonably withheld, delayed or conditioned) allowing Borrower to permit Mortgage Borrower to forego exercising such option or right to renew or extend. If Borrower shall fail to cause Mortgage Borrower or Mortgage Borrower shall fail to exercise any such option or right as aforesaid, Lender may, subject to the rights of Mortgage Lender pursuant to Section 9.8 of under the Mortgage Loan AgreementDocuments, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, exercise the option or right as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receiptor Borrower’s agent and attorney-in-fact, together with copies as provided above in Lender’s own name or in the name of all noticesand on behalf of a nominee of Lender, pleadingsafter the occurrence of an Event of Default for which Lender has accelerated the Loan, schedules as Lender may determine in the exercise of its sole and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two absolute discretion.
(2b) Business Days after receipt. Borrower shall not (and shall not permit or cause Mortgage Borrower to) waive, excuse, condone or in any way release or discharge any Ground Lessor under any Ground Lease of or from such Ground Lessor’s obligations, covenant and/or conditions under the related Ground Lease without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed.
(c) Borrower shall not (and shall not permit or cause Mortgage Borrower to), without Lender’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), surrender, terminate, forfeit, or suffer or permit the prior consent of Lendersurrender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Leaseforfeiture of, (x) modify, or change, supplement, alter modify or amend the Ground Lease. Consent to one amendment, either orally change, agreement or modification shall not be deemed to be a waiver of the right to require consent to other, future or successive amendments, changes, agreements or modifications. Any acquisition of Ground Lessor’s interest in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect Lease by Mortgage Borrower, Borrower or any Affiliate of Mortgage Borrower or Borrower shall be accomplished by Mortgage Borrower or Borrower in such a manner so as to avoid a merger of the interests of lessor and lessee in the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail unless consent to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken merger is granted by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Ground Lease. (a) With respect to By reason of that certain underlying lease of October 1,1992, by and between Lee G. Tipton and Margaret B. Tipton and the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. A.H. Root Building Lim▇▇▇▇ ▇▇▇▇▇▇▇▇.y Com▇.▇▇▇, ▇ ▇▇▇▇▇▇▇▇ ▇imited liability company, notice of such underlying leases provided hereby and in the public records for the City and County of Denver, Colorado (such underlying leases hereinafter referred to as the "Ground Lease"), this Lease is a sublease agreement and this Lease, and therefore the rights of Tenant hereunder, shall be and are hereby made subject and subordinate to the Ground Lease and all replacements and extensions thereof. Although the provisions of this Subsection B shall be self operating, Tenant, or its successors in interest, shall upon Landlord's request, execute and deliver any and all instruments reasonably desired by Prime Landlord, acknowledging, in the manner reasonably requested by Prime Landlord, this Lease as a sublease. Landlord is hereby irrevocably appointed and authorized as agent and attorney-in-fact of Tenant to execute such instruments required by Prime Landlord in the event Tenant fails to execute said instruments within five (5) days after thereof. Said notice from Landlord demanding the execution notice may be given in the manner hereinafter provided for giving notice. As of the date of this Lease, Landlord represents and warrants that Landlord is not in default of any of the terms and conditions of the Ground Lease and that the terms and conditions of this Lease will not violate any terms or conditions of the Ground Lease. Should the Ground Lease be terminated for reasons other that condemnation, fire or other damage, and this sublease is then in existence without default on the part of Tenant, then Tenant agrees to attorn to the Prime Landlord as Landlord herein and if Prime Landlord accepts such attornment by Tenant then this Lease, from and after such attornment and acceptance, shall continue in force and effect as a direct lease between and binding upon Tenant and such Prime Landlord, except that Prime Landlord shall not be (i) liable for any act or omission of Landlord; (ii) subject to any offsets or defenses which Tenant might have against Landlord, or (iii) bound by any rent or additional rent which Tenant may have paid to Landlord more than one (1) month in advance. Should Landlord, during the term of this Lease, acquire the Prime Landlord's fee interest in the Property demised by the Ground Lease, being the land described in Appendix B hereto, then notwithstanding the fact that Landlord holds both a fee and leasehold estate, this Lease shall continue in full force as a direct lease between Landlord and Tenant and Tenant, at the time of Landlord's acquisition of the Prime Landlord's interest and estate, shall be deemed to have attorned to Landlord and Landlord shall be deemed to have accepted such attornment by Tenant, under each of the terms, covenants and conditions set forth in this Lease. Landlord, at the request of Tenant, agrees to request the Prime Landlord to enter into a Non-Disturbance Agreement with Tenant, in a form acceptable to Prime Landlord, providing that Tenant's right to the continued use and possession of the Leased Premises shall be under the same terms and conditions as set forth in this Lease notwithstanding termination of the Ground Lease for default on the part of Landlord provided that at such time Tenant is not in default of its obligations herein and that Tenant attorn to Prime Landlord and thereafter keep and perform the terms and conditions of this Lease.
Appears in 1 contract
Sources: Standard Building Lease (Integrated Information Systems Inc)
Ground Lease. From and after the Funding Date:
(a) With respect to the Ground Lease, Borrower Lessee shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage BorrowerGround Lessee, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage BorrowerGround Lessee, as tenant thereunder, (iii) promptly notify Lender Administrative Agent of the giving of any written notice by the lessor landlord under any the Ground Lease to Mortgage any Borrower of any default by Mortgage BorrowerGround Lessee, as tenant thereunder, and deliver to Lender Administrative Agent a true copy of each such notice within two five (25) Business Days days of receipt receipt, and (iv) promptly notify Lender Administrative Agent of any bankruptcy, reorganization or insolvency proceeding of the lessor landlord under any the Ground Lease or of any notice thereof, and deliver to Lender Administrative Agent a true copy of such notice within two five (25) Business Days days of Mortgage such Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower Ground Lessee shall not (and shall not permit Mortgage Borrower to)not, without the prior consent of LenderAdministrative Agent, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination terminate or cancellation of cancel the Ground Lease, (x) Lease or modify, change, supplement, alter alter, amend or amend waive any material term of the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the and if Ground Lease.
(b) With respect to the Ground Lease, if Mortgage Borrower Lessee shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage BorrowerGround Lessee, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower Ground Lessee to be performed or observed on behalf of Mortgage BorrowerGround Lessee, to the end that the rights of Mortgage Borrower Ground Lessee in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender Administrative Agent a copy of any written notice of default under the Ground Lease, such notice notices shall constitute full protection to Lender Administrative Agent for any action taken or omitted to be taken by LenderAdministrative Agent, in good faith, in reliance thereon. Borrower Ground Lessee shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender Administrative Agent made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower Ground Lessee hereby expressly authorizes and appoints Lender Administrative Agent its attorney-in-fact to exercise any such option in the name of and upon behalf of BorrowerGround Lessee, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
(b) Notwithstanding anything contained in the Ground Lease to the contrary and except for the French Quarter Hotel Operating Lease, Ground Lessee shall not further sublet any portion of the related Collateral Property (other than as permitted pursuant to Section 7.16) without prior written consent of Administrative Agent. ▇▇▇▇▇▇▇▇To the extent that Administrative Agent’s consent or approval is required under this Section 7.23 any such proposed sublease submitted to Administrative Agent for approval shall be deemed approved if (i) Borrowers deliver to Administrative Agent a written request for such approval marked in bold lettering with the following language: “ADMINISTRATIVE AGENT’S RESPONSE IS REQUIRED WITHIN FIFTEEN (15) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND ADMINISTRATIVE AGENT” and the envelope containing the request must be marked “PRIORITY”; and (ii) Administrative Agent shall have failed to notify Borrowers of its approval or disapproval within such fifteen (15) Business Days following Administrative Agent’s receipt of Borrowers’ written request together with such proposed sublease and any and all other information and documentation relating thereto reasonably required by Administrative Agent to reach a decision. In no event shall Administrative Agent be deemed under the preceding sentence to have approved any sublease that may have a Material Adverse Effect. Upon a Borrower’s request, Administrative Agent shall deliver to such Borrower a reasonably detailed description of the reasons for any disapprovals under this Section 7.23.▇
(c) Notwithstanding anything to the contrary contained herein with respect to the Ground Lease:
(i) The Liens of the applicable Mortgage attach to all of Ground Lessee’s rights and remedies at any time arising under or pursuant to subsection 365(h) of the Bankruptcy Code, including, without limitation, all of Ground Lessee’s rights, as debtor, to remain in possession of the French Quarter Hotel Property;
(ii) Ground Lessee shall not, without Administrative Agent’s written consent, elect to treat the Ground Lease as terminated under subsection 365(h)(1) of the Bankruptcy Code. Any such election made without Administrative Agent’s prior written consent shall be void;
(iii) As security for the Obligations, Ground Lessee unconditionally assigns, transfers and sets over to Administrative Agent all of Ground Lessee’s claims and rights to the payment of damages arising from any rejection by Ground Lessee under the Bankruptcy Code. Administrative Agent and Ground Lessee shall proceed jointly or in the name of Ground Lessee in respect of any claim, suit, action or proceeding relating to the rejection of the Ground 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 Ground Lessee 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 Administrative Agent or Ground Lessee as damages arising out of the rejection of the Ground Lease as aforesaid shall be applied to all costs and expenses of Administrative Agent (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with the exercise of any of its rights or remedies in accordance with the applicable provisions hereof;
(iv) If, pursuant to subsection 365(h) of the Bankruptcy Code, Ground Lessee seeks to offset, against the rent reserved in the Ground Lease, the amount of any damages caused by the nonperformance by Ground Lessee of any of its obligations thereunder after the rejection by Ground Lessee under the Bankruptcy Code, then Ground Lessee shall not affect any offset of the amounts objected to by Administrative Agent. If Administrative Agent has failed to object as aforesaid within ten (10) days after notice from Ground Lessee in accordance with the first sentence of this subsection, Ground Lessee may proceed to offset the amounts set forth in Ground Lessee’s notice to Administrative Agent;
(v) In any action, proceeding, motion or notice shall be commenced or filed in respect of Ground Lessee of all or any part any Collateral Property subject to the Ground Lease in connection with any case under the Bankruptcy Code, Administrative Agent and Ground Lessee shall cooperatively conduct and control any such litigation with counsel agreed upon between Ground Lessee and Administrative Agent in connection with such litigation. Borrowers shall, upon demand, pay to Administrative Agent all costs and expenses (including reasonable attorneys’ fees and costs) actually paid or actually incurred by Administrative Agent or any Lender in connection with the cooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be secured by the Lien of the applicable Mortgage; and
(vi) Ground Lessee shall promptly, after obtaining knowledge of such filing, notify Administrative Agent orally of any filing by or against Ground Lessor of a petition under the Bankruptcy Code. Ground Lessee shall thereafter promptly give written notice of such filing to Administrative Agent, setting forth any information available to Ground Lessee as to the date of such filing, the court in which such petition was filed, and the relief sought in such filing. Ground Lessee shall promptly deliver to Administrative Agent any and all notices, summons, pleadings, applications and other documents received by Administrative Agent in connection with any such petition and any proceedings relating to such petition.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Credit Agreement (FelCor Lodging LP)
Ground Lease. (a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to Mortgagor will: (i) except to pay the extent reserved for rent required by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, Lease as the same becomes due and payable; (ii) diligently promptly perform and observe all of the termsmaterial covenants, covenants agreements, obligations and conditions of required to be performed and observed by Mortgagor under the Ground Lease on the part of Mortgage BorrowerLease, as tenant and do all things necessary to preserve and keep unimpaired its rights thereunder, ; (iii) promptly notify Lender in writing of the giving commencement of any written notice a proceeding under the federal bankruptcy laws by or against Mortgagor or, upon Mortgagor's receipt of notification thereof, the lessor under the Ground Lease; (iv) if any of the indebtedness secured hereby remains unpaid at the time when notice may be given by the lessee under the Ground Lease of the exercise of any right to Mortgage Borrower renew or extend the term of the Ground Lease, promptly give notice to the lessor thereunder of the exercise of such right of extension or renewal; (v) in case any proceeds of insurance upon the Property or any part thereof are deposited with any Person other than Mortgagee, promptly notify Mortgagee in writing of the name and address of the Person with whom such proceeds have been deposited and the amount so deposited; (vi) promptly notify Mortgagee in writing of the receipt by Mortgagor of any notice (other than notices customarily sent on a regular periodic basis) from the lessor under the Ground Lease and of any notice noting or claiming any default by Mortgage BorrowerMortgagor in the performance or observance of any of the terms, as tenant thereundercovenants, or conditions on the part of Mortgagor to be performed or observed under the Ground Lease; (vii) promptly notify Mortgagee in writing of the receipt by Mortgagor of any notice from the lessor of any termination of the Ground Lease and deliver to Lender promptly cause a true copy of each such notice within two (2) Business Days of receipt to be delivered to Mortgagee; and (ivviii) promptly notify Lender Mortgagee in writing of any bankruptcyrequest made by either party to the Ground Lease to the other party thereto for arbitration or appraisal proceedings pursuant to the Ground Lease, reorganization or insolvency proceeding and of the lessor under institution of any arbitration or appraisal proceedings and promptly deliver to Mortgagee a copy of the determination of the arbitrators or appraisers in each such proceeding.
(b) Except as set forth in Article 11 of the Ground Lease in connection with the transfer of fee title to the Property to Mortgagor, Mortgagor will not surrender the Ground Lease or of any notice thereofMortgagor's leasehold estate and interest therein, nor terminate or cancel the Ground Lease; and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to)will not, without the prior written consent of LenderMortgagee, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate and as further security for the premises upon repayment of the land underlying indebtedness hereby secured and for the performance of the covenants, agreements, obligations and conditions herein and in the Ground Lease.
(b) With respect Lease contained, Mortgagor hereby assigns to Mortgagee all of its rights, privileges and prerogatives as lessee under the Ground Lease to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease and any such termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease, if Mortgage Borrower without the prior written consent thereto by Mortgagee, shall default be void and of no force and effect. Without limiting the generality of the foregoing, Mortgagor will not reject the Ground Lease pursuant to Section 365(a) of the Bankruptcy Code or any successor law, or allow the Ground Lease to be deemed rejected by inaction and lapse of time, and will not elect to treat the Ground Lease as terminated by the related lessor's rejection of such Ground Lease pursuant to Section 365(h)(1) of the Bankruptcy Code or any successor law, and as further security for the repayment of the indebtedness secured hereby and for the performance of the covenants, agreements, obligations and conditions herein and in the performance Ground Lease contained. Mortgagor hereby assigns to Mortgagee all of its rights, privileges and prerogatives of Mortgagor and Mortgagor's bankruptcy trustee to deal with the Ground Lease, which right may arise as a result of the commencement of a proceeding under the federal bankruptcy laws by or observance of against Mortgagor or any termlessor under the Ground Lease including, covenant without limitation, the right to assume or condition reject, or to compel the assumption or rejection of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail pursuant to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 Section 365(a) of the termsBankruptcy Code or any successor law, covenants the right to seek and conditions obtain extensions of time to assume or reject the Ground Lease, the right to elect whether to treat the Ground Lease on as terminated by the part lessor's rejection of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the such Ground Lease or to remain in possession of the Property and offset damages pursuant to Section 365(b)(1) of the Bankruptcy Code or any successor law; and any exercise of such rights, privileges or prerogatives by Mortgagor or Mortgagor's bankruptcy trustee without the prior written consent thereto by Mortgagee shall be kept unimpaired void and free from defaultof no force and effect. If the landlord under the Ground Lease shall deliver to Lender a copy No release or forbearance of any written notice of default Mortgagor's obligations as lessee under the Ground Lease, such notice whether pursuant to the Ground Lease or otherwise, shall constitute full protection release Mortgagor from any of its obligations under this Mortgage, including, but not limited to, Mortgagor's obligations with respect to Lender the payment of rent as provided for any action taken or omitted in the Ground Lease and the observance and performance of all of the covenants, agreements, obligations and conditions contained in the Ground Lease to be taken observed and performed by Lenderthe lessee thereunder. Unless Mortgagee shall otherwise expressly consent in writing, the fee title to the real property demised by the Ground Lease and the leasehold estate thereunder shall not merge, but shall always remain separate and distinct, notwithstanding the union of such estates either in good faithMortgagor or in a third party by purchase or otherwise.
(c) Upon the written demand of Mortgagee, Mortgagor will promptly deliver to Mortgagee a certificate stating that the Ground Lease is in reliance thereon. Borrower shall cause Mortgage Borrower full force and effect, is unmodified, that no notice of termination thereon has been served on Mortgagor, stating the date to exercise each individual optionwhich the net rent has been paid and stating, to the knowledge of Mortgagor, whether or not there are any defaults thereunder and specifying the nature of such defaults, if any. Mortgagor shall deliver to Mortgagee such certificate within twenty (20) days after Mortgagee's demand therefor.
(d) Mortgagor will furnish to Mortgagee upon demand, proof of payment of all items which are required to extend or renew the term of be paid by Mortgagor pursuant to the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇Lease.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Mortgage, Assignment of Rents, Security Agreement (Glimcher Realty Trust)
Ground Lease. (a) With respect Borrower shall promptly:
(i) Perform, observe and comply with all of the obligations, covenants and agreements required to be performed, observed and complied with by the lessee under the Ground Lease, Borrower shall cause Mortgage and do all things necessary to preserve and to keep unimpaired its rights thereunder;
(ii) Notify Bank of any material default in the performance or observance of any of the covenants or agreements on the part of Borrower to (i) except to the extent reserved for be performed or observed by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant Borrower under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of or the giving of any written notice by the lessor under any the Ground Lease to Mortgage Borrower (A) claiming such a default, or (B) of such lessor’s intention to exercise any default by Mortgage Borrower, as tenant remedy reserved to the lessor thereunder, and deliver to Lender ; and
(iii) Cause a true copy of each such notice within two given by such lessor to Borrower to be delivered to Bank.
(2b) Business Days of receipt In addition to any insurance required pursuant to this Mortgage or any other Loan Document, Borrower will take out and (iv) promptly notify Lender of any bankruptcycontinuously maintain in effect, reorganization or insolvency proceeding of cause to be taken out and thereafter continuously maintained in effect, the lessor insurance required to be maintained by the lessee under any the Ground Lease or of any notice thereof, and deliver Lease. All such insurance policies shall name as additional insured Bank as its interest shall appear. All certificates evidencing the insurance so required to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created be carried by the Ground Lease and this Mortgage shall be deposited with Bank. Within the time periods required by Section 7.3 of the Credit Agreement, Borrower will furnish to Bank evidence satisfactory to Bank that such policy has been renewed or replaced by another policy. Borrower covenants, represents and warrants to Bank that so long as this Mortgage remains unsatisfied, it will comply with all the termination obligations required on its part to be performed under the Ground Lease. In the event that Borrower fails or cancellation refuses to perform any of its obligations under the Ground Lease following the expiration of any applicable grace or cure period, Bank may, but shall not be obligated to, perform any and all such obligations of Borrower under such Ground Lease, including, but not limited to, the payment of any or all rent and other sums due from Borrower thereunder. Any costs or expenses incurred by Bank in performing the obligations of Borrower under the Ground Lease, including any rent or other sums paid by Bank, shall constitute part of the Obligations and shall be secured hereby.
(xc) If Borrower shall fail to perform, observe or comply with any of the obligations, covenants or agreements required to be performed, observed or complied with by it under the Ground Lease following the expiration of any applicable grace or cure period, including, without limitation, payment of all ground rent and other charges due thereunder, Bank, after five (5) days’ written notice (except in emergencies or in situations where a failure sooner to perform or observe the same may result in a forfeiture under the Ground Lease) may, but shall not be obligated to, take such action as is appropriate to cause such covenants, agreements or obligations promptly to be performed, observed or complied with on behalf of Borrower, including, but not limited to, the payment of any or all rent and other sums due from Borrower thereunder, but no action so taken by Bank shall release Borrower from any of its obligations under this Mortgage. Upon receipt by Bank from the lessor under Ground Lease of any notice of default by Borrower thereunder that has not been cured within any applicable grace or cure period, Bank may rely thereon and take any such action as aforesaid to cure such default even though the existence of such default or the nature thereof may be questioned or denied by Borrower or by any party on behalf of Borrower. Any costs or expenses incurred by Bank in taking any action as provided for in this paragraph, including any rent or other sums paid by Bank, shall constitute part of the Obligations and shall be secured hereby.
(d) Borrower shall not surrender its leasehold estate under the Ground Lease, nor terminate or cancel the Ground Lease to which Borrower is a party, and Borrower shall not modify, change, supplement, alter or amend in any material respect the Ground Lease, either orally or in writing, or (y) vacate and any attempt on the premises upon part of Borrower to exercise any such right without the land underlying the Ground Leaseconsent of Bank shall be null and void.
(be) With respect The fee title to the properties demised by the Ground Lease and the leasehold estate shall not merge, but always shall remain separate and distinct, notwithstanding the union of such estates either in the lessor or in the lessee under the Ground Lease or in a third party by purchase or otherwise.
(f) Borrower shall give Bank prompt notice of the commencement of any arbitration or appraisal proceeding pursuant to the Ground Lease, if Mortgage . Bank shall have the right to intervene and participate in any such proceeding and Borrower shall confer with Bank and its attorneys and experts and cooperate with them to the extent Bank deems reasonably necessary for the protection of Bank. Upon the request of Bank, Borrower shall exercise all rights of arbitration or appraisal conferred upon it by the Ground Lease. If at the time any such proceeding shall be commenced, Borrower shall be in default in the performance or observance of any term, covenant or condition of agreement contained in the Ground Lease Lease, or in this Mortgage, on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed observed, beyond any applicable grace period, Bank shall have, and is hereby granted, the sole and exclusive right to designate and appoint on behalf of Mortgage Borrower, Borrower the arbitrator(s) or appraiser(s) in such proceeding.
(g) Borrower shall use its reasonable efforts to obtain from the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default lessor under the Ground Lease, such notice shall constitute and deliver to Bank, within twenty (20) days after written request by Bank, a statement in writing certifying that the Ground Lease is unmodified and in full protection force and effect (or if modified, stating the modifications) and the dates to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual optionwhich the ground rent and other charges, if any, have been paid in advance, and stating whether or not, to extend or renew the term best knowledge of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any signer of such option may be exercisedcertificate, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option is in default in the name performance of and upon behalf any covenant or agreement contained in the Ground Lease, and, if so, specifying each such default of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇the signer may have knowledge.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Leasehold Mortgage / Mortgage and Security Agreement (CNL Healthcare Properties II, Inc.)
Ground Lease. (a) With respect In consideration of the mutual covenants and agreements of this Interlocal Agreement, and other good and valuable and consideration, but without the necessity of payment of any monetary rent as such, EPCC as Landlord, demises and leases to EPISD as Tenant, and EPISD leases from EPCC, on the Ground Leaseground lease basis, Borrower that real property upon which the EPISD portable and modular buildings have been placed, in accordance with the site drawing submitted with the Agreement signed in 2008. EPCC grants EPISD reasonable ingress and egress, including, without limitation, the right to use all adjacent streets, sidewalks, alleys, and other means of access, to and from the real property covered by this ground lease through adjoining property owned and/or controlled by EPCC. The term of this ground lease shall cause Mortgage Borrower to (i) except be coterminous with the term of this Interlocal Agreement, provided, however, that to the extent reserved the ownership of any buildings is transferred hereunder to EPCC, EPISD shall be considered to have a lease on the building itself as well as the underlying real property for so long as this Interlocal Agreement is in effect. EPISD has inspected the real property, and accepts same in its present condition AS IS, such property, in EPISD’s sole judgment and opinion, being suitable for EPISD’s intended use and purpose. After certain sites on the property are prepared by Mortgage Lender pursuant to Section 9.8 EPCC for the installation of portable and modular buildings, EPISD shall inspect such sites and the corresponding preparation, and should installation of the Mortgage Loan Agreementbuildings then proceed, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and EPISD shall be deemed to have accepted the real property and improvements in such condition. AS IS, WHERE IS, as being suitable for EPISD’s use and purpose. EPCC makes no representation or warranty, express or implied, regarding the real property or the improvements EPCC is to make, as to merchantability or fitness for a particular purpose or use in any manner whatsoever. Provided, however, that EPCC shall remain responsible to correct and repair any defects in materials or workmanship which may be coupled with an interest. ▇▇▇▇▇▇▇▇discovered within one year of the effective date of this Agreement regarding the items that it is responsible to provide under Article 6.A (i) and (ii) hereinabove, including the pads, footings, and stub-outs.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Interlocal Agreement
Ground Lease. (a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to The Mortgagor represents and warrants that (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents Exhibit A contains a correct and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions complete description of the Ground Lease, ; (ii) diligently perform and observe all of the terms, covenants and conditions Mortgagor has furnished to the Mortgagee a copy of the Ground Lease on certified as true and correct by the part of Mortgage Borrower, as tenant thereunder, Mortgagor; (iii) promptly notify Lender except as described in Exhibit A, the Ground Lease has not been modified or assigned by the Mortgagor or, to the knowledge of the Mortgagor, assigned by the landlord thereunder; (iv) the Ground Lease is in full force and effect and, to the knowledge of the Mortgagor, there is no default under the Ground Lease and there is existing no condition which with the giving of any written notice by the lessor or passage of time or both would cause a default under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease; and (v) the execution, delivery and performance of this Mortgage do not require any consent (xother than those consents which have been obtained and are in full force and effect) modifyunder, changeand will not contravene any provision of or cause a default under, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect The Mortgagor shall (i) duly and punctually pay, perform and observe all of its obligations under the Ground Lease; (ii) shall do all things necessary or appropriate to enforce, preserve and keep unimpaired the rights of the Mortgagor and the obligations of each of the other parties under the Ground Lease; (iii) shall not terminate or surrender the Ground Lease; (iv) shall not modify or amend the Ground Lease except as permitted by Section 7.08 of the Credit Agreement; (v) shall notify the Mortgagee in writing not later than 120 days prior to the last date on which the Mortgagor can exercise (A) any right to extend the term of the Ground Lease or (B) any option to purchase or otherwise acquire the interest of the landlord under the Ground Lease; (vi) unless the Required Lenders shall otherwise approve, shall exercise (not later than 60 days prior to the last date on which the Mortgagor may timely do so) each right or option of the Mortgagor under the Ground Lease (A) to extend the term thereof, or (B) to purchase or otherwise acquire the interest of the landlord under the Ground Lease and contemporaneously furnish to the Mortgagee a copy of the notice exercising such right or option; and (vii) shall notify the Mortgagee (A) promptly after receipt or contemporaneously when given, as the case may be, of the receipt or giving by the Mortgagor of any notice of default under the Ground Lease or of any notice of the possible or actual termination thereof, any material right of the Mortgagor thereunder or any material obligation of any other party thereunder, accompanied by a copy of such notice; (B) promptly after learning about any such condition, of the existence of any condition which, with or without the giving of notice or the passage of time or both, would constitute a default under the Ground Lease or any termination thereof; (C) promptly after receiving or learning of the existence of any such assignment, or the existence of any assignment of the interest of the landlord under the Ground Lease, if Mortgage Borrower accompanied by a copy of any such assignment received by the Mortgagee; and (D) promptly after receipt or contemporaneously when given, as the case may be, of the receipt or giving of any notice relating to any option to purchase or right of first refusal under the Ground Lease, accompanied by a copy of such notice.
(c) The provisions of subsection (b) of this Section shall default also apply to any right of the Mortgagor to possession under Section 365 of the Bankruptcy Code in the performance event the Ground Lease is rejected by any other party thereunder or observance its trustee pursuant to said Section.
(d) In the event the Mortgagor acquires the fee simple title or any other greater estate or interest in the Land, such acquisition will not merge with the leasehold estate created by the Ground Lease, but such other title, estate or interest will remain discrete, shall immediately and automatically become subject to the Lien hereof and such title, estate or interest shall be part of the Mortgaged Property and included within the term and definition of "Land". The Mortgagor shall execute, acknowledge and deliver any instruments requested by the Mortgagee to confirm the coverage of the Lien hereof upon such other greater estate or interest. The Mortgagor shall pay any and all conveyance or mortgage taxes, and filing or similar fees in connection with the execution, delivery, filing or recording of any termsuch instrument.
(e) The Mortgagor hereby unconditionally assigns, covenant transfers and sets over to the Mortgagee all of the Mortgagor's claims and rights to the payment of damages arising from any rejection by the landlord under the Ground Lease pursuant to the Bankruptcy Code. The Mortgagee shall have the right to proceed in its own name or condition in the name of the Mortgagor in respect of any claim, suit, action or proceeding relating to the rejection of the Ground Lease, including, the right to file and prosecute, to the exclusion of the Mortgagor, any proofs of claim, complaints, motions, applications, notices and other documents, in any case in respect of such landlord 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 the termination of this Mortgage in the manner and at the time provided in Section 7.02. Any amounts received by the Mortgagee as damages arising out of the rejection of the Ground Lease on as aforesaid shall be applied and paid as set forth in Section 5.06.
(f) The Mortgagor shall not, without the Mortgagee's prior consent, elect to treat the Ground Lease as terminated under Section 365(h)(1) of the Bankruptcy Code. Any such election made without the Mortgagee's prior consent shall be void.
(g) If pursuant to Section 365(h)(1) of the Bankruptcy Code, the Mortgagor seeks to offset against the rent or other charges reserved in the Ground Lease the amount of any damages caused by the non-performance by the landlord of any of the landlord's obligations under the Ground Lease after the rejection by the landlord of the Ground Lease under the Bankruptcy Code, the Mortgagor shall, prior to effecting such offset, notify the Mortgagee of its intention to do so, setting forth the amounts proposed to be so offset and the basis therefor. The Mortgagee shall have the right, within ten (10) days after receipt of such notice from the Mortgagor, to reasonably object to all or any part of Mortgage Borrowersuch offset, and, in the event of such reasonable objection, the Mortgagor shall not effect any offset of the amounts so objected to by the Mortgagee for a period of thirty days after the Mortgagee has delivered its objection notice to the Mortgagor during which time the Mortgagee shall have the right to bring its objections to the attention of any court supervising the bankruptcy of the owner of the Ground Lease and both the Mortgagee and the Mortgagor agree to abide by the decision of any such court. If the Mortgagee has failed to object as aforesaid within the (10) days after notice from the Mortgagee or the court fails to render its decision within the above-mentioned thirty day period, the Mortgagor may proceed to effect such offset in the amounts set forth in the Mortgagor's notice. Neither the Mortgagee's failure to object as aforesaid nor any objection or other communication between the Mortgagee and the Mortgagor relating to such offset shall constitute an approval of any such offset by the Mortgagee.
(h) If any action, proceeding, motion or notice shall be commenced or filed in respect of the Mortgaged Property in connection with any case under the Bankruptcy Code (other than a case under the Bankruptcy Code commenced with respect to the Mortgagor), the Mortgagee shall have the option, to the exclusion of the Mortgagor, exercisable upon notice to the Mortgagor, to conduct and control any such litigation with counsel of the Mortgagee's choice. The Mortgagee may proceed in its own name or in the name of the Mortgagor in connection with any such litigation, and the Mortgagor agrees to execute any and all powers, authorizations, consents and other documents required by the Mortgagee in connection therewith. The Mortgagor shall pay to the Mortgagee all costs and expenses (including, without limitation, reasonable attorneys' fees and disbursements) paid or incurred by the Mortgagee in connection with the prosecution or conduct of any such proceedings within five (5) days after notice from the Mortgagee setting forth such costs and expenses in reasonable detail. Any such costs or expenses not paid by the Mortgagor as aforesaid shall be a part of the Secured Obligations and shall be secured by this Mortgage. The Mortgagor shall not commence any action, suit, proceeding or case, or file any application or make any motion, in respect of the Ground Lease in any such case under the Bankruptcy Code (other than a case under the Bankruptcy Code commenced with respect to the Mortgagor) without the prior consent of the Required Lenders, which consent shall not be unreasonably withheld.
(i) The Mortgagor shall promptly, after obtaining knowledge thereof, notify the Mortgagee orally of any filing by or against the landlord under the Ground Lease of a petition under the Bankruptcy Code. The Mortgagor shall thereafter forthwith give notice of such filing to the Mortgagee, setting forth any information available to the Mortgagor as to the date of such filing, the court in which such petition was filed, and the relief sought therein. The Mortgagor shall promptly deliver to the Mortgagee following receipt any and all notices, summonses, pleadings, applications and other documents received by the Mortgagor in connection with any such petition and any proceedings relating thereto.
(j) If there shall be filed by or against the Mortgagor a petition under the Bankruptcy Code, and the Mortgagor, as the tenant thereunderunder the Ground Lease, and shall fail determine to cure reject the same Ground Lease pursuant to Section 365(a) of the Bankruptcy Code, then the Mortgagor shall give the Mortgagee not less than ten (10) days' prior notice of the date on which the Mortgagor shall apply to the expiration of any applicable cure period provided thereunder, Lender bankruptcy court for authority to reject the Ground Lease. The Mortgagee shall have the right, but shall be under no not the obligation, to pay any sums serve upon the Mortgagor within such 10-day period a notice stating that the Mortgagee demands that the Mortgagor assume and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of assign the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that Mortgagee pursuant to Section 365 of the rights Bankruptcy Code and the Mortgagee covenants to cure or provide adequate assurance of Mortgage Borrower in, to prompt cure of all defaults and under provide adequate assurance of future performance of the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default Mortgagor's obligations under the Ground Lease. If the Mortgagee serves upon the Mortgagor the notice described in the preceding sentence, such notice the Mortgagor shall constitute full protection not seek to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of reject the Ground Lease upon and shall seek court approval to comply with the demand by Lender made at any time provided for in clause (i) of the preceding sentence within one thirty (130) year prior days after the notice shall have been given, subject to the last day performance by the Mortgagee of the covenant provided for in clause (ii) of the preceding sentence.
(k) Effective upon the entry of an order for relief in respect of the Mortgagor under the Bankruptcy Code, the Mortgagor hereby assigns and transfers to the Mortgagee a non-exclusive right to apply to the bankruptcy court under Section 365(d)(4) of the Bankruptcy Code for an order extending the period during which any such option the Ground Lease may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇rejected or assumed.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Debt Agreement (Vencor Inc)
Ground Lease. (a) With respect This Mortgage is prior and superior to the Ground Lease, and, in respect thereof, the Borrower hereby warrants, represents and covenants with the Lender that:
(a) the Ground Lease is valid, enforceable against Borrower in accordance with its terms and is in full force and effect on the date hereof; no Event of Default (as such term is defined in the Ground Lease) has occurred and no event has occurred which with the giving of notice or passage of time or both would constitute such an Event of Default;
(b) the Borrower shall cause Mortgage Borrower to not (i) except enter into any agreement with the Ground Lessee to amend, modify, renew, or in any manner change the terms of the Ground Lease or the rent thereunder, either orally or in writing and whether or not permitted to do so by the terms of the Ground Lease, without the prior written consent of the Lender which consent may be withheld in the Lender's sole and absolute discretion; or (ii) enter into any agreement with the Guarantor to amend, modify, renew, or in any manner change the terms of the Guaranty either orally or in writing and whether or not permitted to do so by the terms of the Guaranty, without the prior written consent of the Lender which consent may be withheld in the Lender's sole and absolute discretion;
(c) the occurrence of any Event of Default (as defined in the Ground Lease) under the Ground Lease shall ipso facto constitute a Default under this Mortgage;
(d) the Borrower shall (i) promptly notify the Lender in writing of the occurrence of any default or Event of Default known to the extent reserved for Borrower under the Ground Lease or any instrument or agreement related thereto including but not limited to the Guaranty, (ii) promptly notify the Lender of receipt by Mortgage the Borrower of any notice noting or claiming the occurrence of any default or Event of Default under the Ground Lease or any instrument or agreement relating thereto including but not limited to the Guaranty, and (iii) promptly cause a copy of each such notice received by the Borrower to be delivered to the Lender;
(e) the Borrower shall furnish to the Lender pursuant ten (10) days after the mailing by the Lender of a written request therefor, but not more than four (4) times per year, proof reasonably satisfactory to Section 9.8 the Lender of the Mortgage Loan Agreement, pay payment of all rents, additional rents and other sums items which are required to be paid by Mortgage Borrowerthe Ground Lessee or the Borrower under the Ground Lease or any instrument or agreement related thereto;
(f) the Lender shall have the right, as tenant at its option, to perform the obligations of the Borrower under and the Ground Lease without the Lender waiving any other of its rights under this Mortgage. Should the Lender exercise its right hereunder to cure a default under the Ground Lease, the Borrower shall reimburse the Lender for any expenses the Lender shall have incurred pursuant to the provisions of this Paragraph 5.22, and any such expenditures shall become a lien upon the Mortgaged Property and shall together with interest at the Default Interest Rate be secured by this Mortgage. The Borrower shall take all reasonable steps to insure the Lender will have a reasonable opportunity at Lender's option, in its sole and absolute discretion, to cure any or all defaults under the Ground Lease;
(g) the Borrower shall not agree, or consent, to any assignment of the Ground Lease by the Ground Lessee whether or not permitted to do so by the terms of the Ground Lease, (ii) diligently perform and observe all without the prior written consent of the termsLender, covenants including but not limited to agreeing or consenting to any leasehold mortgage made by Ground Lessee of its right, title and conditions of interest in and to the Premises under the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created thereby. Lender will grant its consent to a leasehold mortgage given to secure a loan to Ground Lessee the proceeds of which are used by Ground Lessee to construct the initial improvements on the Premises provided, however, (i) no Default has occurred and is continuing; (ii) no Event of Default has occurred under the Ground Lease and is continuing; (iii) no event has occurred which with the giving of notice or passage of time or both would constitute a Default under this Mortgage or an Event of Default under the Ground Lease; (iv) such leasehold mortgage is fully subordinate to this Mortgage; (v) the holder of such leasehold mortgage is and remains an entity which is a member of the IKEA Group of companies; (vi) such leasehold mortgage provides expressly that neither such leasehold mortgage nor any participation in such leasehold mortgage may be sold, assigned, collateralized or securitized; and (vii) such leasehold mortgage may not be recorded until all improvements, the cost which are funded by the proceeds of such loan, have been fully completed and the Ground Lessee shall have taken possession and commenced operation of such improvements pursuant to the Ground Lease;
(h) Except for this Mortgage, the Ground Lease and the Assignment of Leases and Rents, the Borrower shall not permit the Mortgaged Property, including but not limited to the Ground Lease or the termination rents payable thereunder, to be subject to any liens, charges, encumbrances or cancellation other security interests, without the prior written consent of the Bank; provided, however, that the foregoing restrictions shall not apply to (i) liens for taxes, assessments or other governmental charges or levies if the same shall not at the time be delinquent; (ii) liens arising out of pledges or deposits under workers' compensation laws, unemployment insurance, old age pensions, or social security or retirement benefits or similar legislation; (iii) liens of contractors, mechanics, materialmen, carriers, landlords and other similar common law or statutory liens arising in the ordinary course of business;(iv) a mortgage to finance Ground Lessee's construction of improvements as described in Paragraph 5.22(g); and (v) sublease financing consented to by the Lender;
(i) The Borrower shall not agree or consent to any sublease of the Ground Lease, (x) modifyor to any amendment, changemodification, supplement, alter renewal or amend any other change in any sublease or the Ground Leaserent thereunder, either orally or in writing, and whether or (y) vacate not permitted to do so by the premises upon the land underlying the Ground Lease.
(b) With respect to terms of the Ground Lease, if Mortgage Borrower shall default in without the performance or observance of any term, covenant or condition prior written consent of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail Lender. The Lender will not unreasonably withhold its consent to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 subleases of the terms, covenants and conditions of Mortgaged Property at fair market rents which meet the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under criteria for subleases set forth in the Ground Lease, and, if such notice consent is given, will grant sublessees recognition and non-disturbance and permit sublessee leasehold financing and recording of a mortgage securing such subleasehold financing; provided, however, that the Ground Lessee shall constitute full protection have furnished the Lender with (i) reasonably detailed information regarding the proposed sublessee, (ii) a term sheet which details the principal terms for the proposed sublease, (iii) financial statements for the proposed sublessee, (iv) the location of any sublease improvements on the Property to the extent the same differs from the proposed sublessee location plan attached to the Loan Agreement as Exhibit H (the "Location Plan"), and (v) the form of the proposed sublease, and provided, further, that if the subleases meet the requirements in this Paragraph 5.22
(i) subparagraphs (i) through (v), then the only grounds for withholding consent by the Lender to any such sublease shall be a lack of long-term financial viability of the proposed sublessee or a proposed use of the Mortgaged Property by the sublessee which is environmentally sensitive. The Lender's prior written consent shall also be required as to the location of any improvements on the Mortgaged Property by a sublessee to the extent the same differs from the Location Plan and the Lender shall not be required to consent to more than the number of subleases of the Mortgaged Property shown on the Location Plan in effect at any one time. This provision is a material inducement for any action taken or omitted the Lender extending the Loan to be taken by Lender, in good faith, in reliance thereon. the Borrower;
(j) The Borrower shall cause Mortgage Borrower not agree or consent to exercise each individual optionany cancellation, if any, to extend termination or renew the term surrender by Ground Lessee of the Ground Lease, without the Lender's prior written consent, which consent may be withheld in Lender's sole and absolute discretion; and
(k) The Ground Lease upon demand and the Guaranty shall provide that the Ground Lessee and the Guarantor shall be liable to Borrower and Lender for all costs, fees and expenses of, and court costs incurred by, any attorney employed by Lender made at in any time within one litigation affecting the Note, this Mortgage or any of the other Loan Documents, or any of the Mortgaged Property, or the Ground Lease or the Guaranty, or in preparation for the commencement or defense of any proceeding or threatened suit or proceeding in connection therewith, or any defense by Lender of any actions or claims attacking any liens granted to Lender under this Mortgage or any of the other Loan Documents (1) year prior without regard to whether Lender is the last day upon which any such option may be exercisedprevailing party), and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise arising or resulting from any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇claim or defense asserted by Ground Lessee and/or Guarantor.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Mortgage, Security Agreement and Fixture Financing Statement (Alexanders Inc)
Ground Lease. (a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreementhereof, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to)not, without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇prior
Appears in 1 contract
Ground Lease. (a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to shall:
(i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents Ground Rent and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground LeaseLease on or prior to the date that such Ground Rent or other charge is delinquent, without limiting Borrower’s right to use the funds in the Ground Rent Reserve so long as an Event of Default has not commenced and is continuing;
(ii) diligently perform and observe all of the other material terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed and observed prior to the expiration of any applicable grace period therein provided;
(iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease Lessor to Mortgage Borrower of any default by Mortgage Borrower in the performance or observance of any of the terms, covenants or conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed and deliver to Lender a true copy of each such notice within two notice; and
(2b) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender,
(wi) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination terminate or cancellation of cancel the Ground Lease, provided that, upon at least thirty (x30) days prior written notice to Lender, Borrower may acquire the fee interest in the Property if concurrently therewith (A) Borrower executes and delivers to Lender such documents as are required to (i) spread the Lien of the Mortgage to include such fee interest and (ii) amend the other Loan Documents to reflect the addition of Borrower’s fee interest to the Lien of the Mortgage prior to the acquisition thereof, (B) Borrower delivers to Lender an endorsement to the Title Insurance Policy confirming no change in the priority of the Mortgage, (C) Borrower shall pay all reasonable out-of pocket expenses incurred by Lender (including reasonable out-of-pocket attorneys’ fees) in connection with the foregoing and (D) Borrower shall have satisfied such other conditions as may be reasonably required by Lender or the Servicer;
(ii) modify, change, supplement, alter or amend the Ground Lease; or
(iii) subordinate or consent to the subordination of the Ground Lease to any mortgage, either orally security deed, lease or other interest on or in writingthe landlord’s interest in all or any part of the Property, or (y) vacate except as required by the premises upon the land underlying terms of the Ground Lease.
(b) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Ground Lease. (a) With respect Borrower shall not, without Lender’s written consent, fail to exercise any option or right to renew or extend the term of any Ground Lease in accordance with the terms of the related Ground Lease, and shall give immediate written notice to Lender and shall execute, acknowledge, deliver and record any document requested by Lender to evidence the lien of the related Security Instrument on such extended or renewed lease term; provided, however, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums not be required to be paid by Mortgage Borrower, as tenant under and pursuant exercise any particular such option or right to renew or extend (or to permit the provisions term of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage renew or extend automatically) to the extent Borrower shall have received the prior written consent of Lender (which consent may not be unreasonably withheld, delayed or conditioned) allowing Borrower to forego exercising such option or right to renew or extend. If Borrower shall fail to exercise any default by Mortgage Borrowersuch option or right as aforesaid within thirty days prior to the date when required, Lender may exercise the option or right as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies agent and attorney in fact as provided above in Lender’s own name or in the name of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent on behalf of a nominee of Lender, (w) take any action or fail to take any action which would result as Lender may determine in the surrender exercise of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Leaseits sole and absolute discretion.
(b) With respect to Borrower shall not waive, excuse, condone or in any way release or discharge any Ground Lessor under any Ground Lease of or from such Ground Lessor’s material obligations, covenant and/or conditions under the related Ground Lease without the prior written consent of Lender (which consent will not be unreasonably withheld, delayed or conditioned).
(c) Borrower shall not, without Lender’s prior written consent, surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modify or amend in a material adverse manner, any Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition other than an expiration of the Ground Lease on the part of Mortgage Borrowerpursuant to its terms. Consent to one amendment, as tenant thereunderchange, and agreement or modification shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall not be deemed to be coupled with an interesta waiver of the right to require consent to other, future or successive amendments, changes, agreements or modifications. ▇▇▇▇▇▇▇▇Any acquisition of Ground Lessor’s interest in any Ground Lease by Borrower or any Affiliate of Borrower shall be accomplished by Borrower in such a manner so as to avoid a merger of the interests of lessor and lessee in such Ground Lease, unless consent to such merger is granted by Lender.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Ground Lease. Borrower shall (a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground LeaseLease as and when such rent or other charge is payable, (iib) diligently perform and observe in all material respects all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed and observed prior to the expiration of any applicable grace period therein provided, and (iiic) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease Lessor to Mortgage Borrower of any material default by Mortgage Borrower in the performance or observance of any of the material terms, covenants or conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding notice. Subject to the terms of the lessor under any Ground Lease or of any notice thereofLoan Agreement, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to)not, without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination terminate or cancellation of cancel the Ground LeaseLease or without the prior written consent of Lender, (x) which consent shall not be unreasonably withheld, conditioned or delayed, modify, change, supplement, alter or amend the Ground Lease, in any respect, either orally or in writing, or (y) vacate and Borrower hereby assigns to Lender, as further security for the premises payment of the Debt and for the performance and observance of the terms, covenants and conditions of this Security Instrument and the Loan Agreement, all of the rights, privileges and prerogatives of Borrower, which rights, privileges and prerogatives may be exercised by Lender upon and during the land underlying the Ground Lease.
(b) With respect to continuance of an Event of Default, as tenant under the Ground Lease, if Mortgage to surrender the leasehold estate created by the Ground Lease or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease, and any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease without the prior consent of Lender (as provided in the Loan Agreement) shall be void and of no force and effect. If Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed or observed, and such default shall fail to cure the same prior to remain uncured after the expiration of any applicable cure period provided or grace period, then, without limiting the generality of the other provisions of this Security Instrument and the Loan Agreement, and without waiving or releasing Borrower from any of its obligations hereunder or thereunder, Lender shall have the right, but shall be under no obligation, upon three (3) business days written notice 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 the Ground Lease on the part of Mortgage Borrower Borrower, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the landlord preceding sentence, Lender will notify Borrower of the making of any such payment, the performance of any such act, or the taking of any such action. In any such event, subject to the terms of the Management Agreement and to the rights of tenants, subtenants and other occupants under the Leases, Lender and any person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time after such default by Borrower, which remains uncured after the expiration of any applicable cure or grace period, for the purpose of taking any such action. Lender may pay and expend such sums of money as Lender deems reasonably necessary for any such purpose and upon so doing shall be subrogated to any and all rights of the Ground Lease Lessor. Borrower hereby agrees to pay to Lender upon ten (10) days demand therefor, all such sums so paid and expended by Lender, together with interest thereon from the day of such demand at the Default Rate. All sums so paid and expended by Lender and the interest thereon shall be secured by the legal operation and effect of this Security Instrument. If the Ground Lessor shall deliver to Lender a copy of any written notice of default sent by said Ground Lessor to Borrower, as tenant under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower Subject to exercise each individual option, if any, to extend or renew the term terms of the Ground Lease upon demand by Lender made at any time within one (1) year prior and the terms of the Loan Agreement, Borrower will not subordinate or consent to the last day upon which subordination of the Ground Lease to any such option may be exercisedmortgage, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option security deed, lease or other interest on or in the name Ground Lessor’s interest in all or any part of the Property, unless, in each such case, the written consent of Lender shall have been first had and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇obtained.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Leasehold Mortgage, Security Agreement and Fixture Filing (FelCor Lodging Trust Inc)
Ground Lease. (a) With The Lessee covenants and agrees that while this Lease remains in effect with respect to the each Leased Asset subject to a Ground Lease, Borrower shall cause Mortgage Borrower if any, and at all times prior to the date on which the Lessee's right to occupy such Leased Asset has been terminated by the Lessor, the Lessee (and any sublessee or other party claiming by, through or under Lessee) has actually vacated such Leased Asset and the Lessee has executed and delivered to Lessor a written release of its rights and interests (other than its right to receive a portion of the Gross Proceeds from the sale of such Leased Asset) to, and confirmation of its surrender of possession in respect of, the Leased Asset, (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently Lessee will perform and observe all of the terms, covenants covenants, provisions, conditions and conditions agreements of the Ground Lease for each Leased Asset on the Lessor's part as lessee thereunder to be performed and observed (including, without limitation, payment of Mortgage Borrowerall rent, additional rent and other amounts payable by the Lessor as tenant lessee thereunder) to the end that all things shall be done which are necessary to keep unimpaired the rights of the Lessor as lessee thereunder, (iii) promptly notify Lender except to the extent such performance is solely under the control of the giving Lessor and (ii) the Lessor shall have no obligation or responsibility to provide services or equipment required to be provided or repairs or restorations required to be made in accordance with the provisions of any written notice Ground Lease, each of which shall be provided, made or effected by the Lessee hereunder. The Lessor and the Lessee mutually agree to cooperate fully with each other to enforce the Lessor's rights as the lessee under each Ground Lease as against the lessor under any such Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding Lease. The obligations of the lessor Lessee under this Section 32 shall survive the termination of this Lease and the rights of the Lessee hereunder but shall not, for any Ground Leased Asset, extend beyond the date after the termination of this Lease that Lessor shall have completed a sale or of any notice thereof, and deliver to Lender a true copy lease of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail Leased Asset to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Leasean unaffiliated third party.
(b) With respect The Lessee covenants and agrees pursuant to Section 26.1 hereof to indemnify and hold harmless each Indemnitee from and against any and all Claims by reason of the Lessee's failure to comply with the provisions of this Section 32.4, other than to the Ground Lease, if Mortgage Borrower shall default in extent arising from the performance gross negligence or observance willful misconduct of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇Indemnitee.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Ground Lease. (a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the any Ground Lease, (ii) diligently perform and observe all of the material terms, covenants and conditions of the each Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed and observed, and (iii) promptly notify Lender of the giving of any written notice by the lessor landlord under any Ground Lease to Mortgage Borrower of any event of default thereunder by Mortgage Borrower in the performance or observance of any of the terms, covenants or conditions of any Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed, and deliver to Lender a true copy of each such notice within two fifteen (215) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor landlord under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two fifteen (215) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to)not, without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the any Ground Lease or the termination terminate or cancellation of the cancel any Ground Lease, (x) Lease or modify, change, supplement, alter or amend any Ground Lease (other than any modification with respect to (x) a reduction of Borrower’s obligations thereunder including a reduction in the rent payable thereunder (which does not result in the termination or cancellation of the Ground Lease, either orally or in writing, or ) and (y) vacate otherwise of a ministerial nature). Borrower hereby assigns to Lender, as further security for the premises upon payment and performance of the land underlying obligations and for the Ground Lease.
(b) With respect to performance and observance of the terms, covenants and conditions of the Mortgage, this Agreement and the other Loan Documents, except as set forth in the immediately preceding sentence, all of the rights, privileges and prerogatives of Borrower, as tenant under each Ground Lease, if Mortgage to surrender the leasehold estate created by such Ground Lease or to terminate, cancel, modify, change, supplement, alter or amend such Ground Lease in any material respect, and, except as permitted pursuant to the immediately preceding sentence, any such surrender of the leasehold estate created by such Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of such Ground Lease in any material respect without the prior consent of Lender shall be void and of no force and effect. If Borrower shall default in the performance or observance of any material term, covenant or condition of the any Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then, without limiting the generality of the other provisions of the Mortgage, this Agreement and the other Loan Documents, and without waiving or releasing Borrower from any of its obligations hereunder, subject to the terms of the Ground Lease, Lender 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 the any Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the such Ground Lease shall be kept unimpaired and free from default. If the landlord under the any Ground Lease shall deliver to Lender a copy of any written notice of an event of default under the such Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease in accordance with the terms of the Ground Lease and/or upon prior written demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇Borrower will not subordinate or consent to the subordination of any Ground Lease to any mortgage, security deed, lease or other interest on or in the landlord’s interest in all or any part of any Property, unless, in each such case, the written consent of Lender shall have been first had and obtained. Borrower or any of its Affiliates shall be permitted to acquire the fee interest in any Property subject to a Ground Lease (a “Fee Acquisition”) so long as Borrower (or its Affiliate, as applicable) (i) does not merge the fee interest with the leasehold estate and (ii) if the Fee Acquisition is consummated by Borrower, Borrower delivers to Lender a mortgage or spreader in connection with the Fee Acquisition securing the obligations of Borrower hereunder.▇
(b) Notwithstanding anything contained in any Ground Lease to the contrary, Borrower shall not further sublet any portion of any Property (other than as permitted pursuant to Section 5.7 of this Agreement) without prior written consent of Lender.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Loan Agreement (Toys R Us Inc)
Ground Lease. (a) With respect to Borrower will, and will cause Owner to, comply in all material respects with the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants terms and conditions of the Ground Lease on Lease. Borrower will not, and will not permit Owner to, do or permit anything to be done, the part doing of Mortgage Borrowerwhich, as tenant thereunderor refrain from doing anything, (iii) promptly notify Lender the omission of which, will impair or tend to impair the security of the giving of any written notice by the lessor Premises under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation will be grounds for declaring a forfeiture of the Ground Lease. Borrower shall, and shall cause Owner to, promptly send copies of all notices of default which Owner may receive under the Ground Lease to Lender.
(xb) Borrower shall, and shall cause Owner to, enforce the Ground Lease and not terminate, modify, cancel, change, supplement, alter or amend the Ground Lease, either orally or waive, excuse, condone or in writing, any way release or (y) vacate discharge Ground Lessor of or from any of the premises upon the land underlying the material covenants and conditions to be performed or observed by Ground LeaseLessor.
(bc) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but shall be under no not the obligation, to pay perform any sums obligations of Borrower or Owner under the terms of the Ground Lease during the continuance of an Event of Default. All costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) so incurred, shall be treated as an advance secured by this Agreement, shall bear interest thereon at the Default Rate from the date of payment by Lender until paid in full and shall be paid by Borrower to Lender during the continuance of an Event of Default on demand. No performance by Lender of any obligations of Borrower or Owner shall constitute a waiver of any Event of Default arising by reason of Borrower’s or Owner’s failure to perform the same. If Lender shall make any payment or perform any act or take any action as may be appropriate to cause all in accordance with this Section 2.36(c), Lender will notify Borrower of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy making of any written notice such payment, the performance of default under any such act, or the Ground Lease, taking of any such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. action.
(d) Borrower shall cause Mortgage Borrower Owner to exercise each individual option, if any, to extend or renew the term of the Ground Lease not less than thirty (30) days prior to the last day upon which any such option may be exercised (and in all events within five (5) days after demand by Lender made at any time within one (1) year prior to of the last day upon which any such option may be exercised), and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon on behalf of BorrowerOwner to so exercise such option if Borrower fails to cause Owner to exercise as herein required, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇Borrower shall give Lender notice of Owner’s exercise of any such option to extend or renew the term of the Ground Lease within five (5) days of the exercise of any such option.▇
(e) Subject to Mortgage Lender’s rights under the Mortgage Loan, Senior Mezz Lender’s rights under the Senior Mezz Loan and Intermediate Mezz Lender’s rights under the Intermediate Mezz Loan, Borrower shall cause Owner to assign, transfer and set over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by the Ground Lessor of the Ground Lease under the Bankruptcy Code. Borrower shall notify Lender promptly (and in any event within ten (10) days) of any claim, suit, action or proceeding relating to the rejection of the Ground Lease. Lender is hereby irrevocably appointed as Borrower’s attorney-in-fact, coupled with an interest, with exclusive power to file and prosecute, to the exclusion of Borrower, any proofs of claim, complaints, motions, applications, notices and other documents, in any case in respect of the Ground Lessor under the Bankruptcy Code during the continuance of an Event of Default. Borrower may make any compromise or settlement in connection with such proceedings (subject to Lender’s reasonable approval); provided, however, that Lender shall be authorized and entitled to compromise or settle any such proceeding if such compromise or settlement is made after the occurrence and during the continuance of an Event of Default. Borrower shall promptly execute and deliver to Lender any and all instruments reasonably required in connection with any such proceeding after request therefor by Lender. Except as set forth above, Borrower shall not, nor permit Owner to, adjust, compromise, settle or enter into any agreement with respect to such proceedings without the prior written consent of Lender, which consent shall not be unreasonably withheld or delayed.▇▇▇▇▇▇▇▇
(f) Borrower shall not permit Owner to, without Lender’s prior written consent, elect to treat the Ground Lease as terminated under Section 365(h)(1) of the Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(g) If pursuant to Section 365(h)(2) of the Bankruptcy Code, Owner seeks to offset against the rent reserved in the Ground Lease the amount of any damages caused by the non-performance by the Ground Lessor of any of the Ground Lessor’s obligations under the Ground Lease after the rejection by the Ground Lessor of the Ground Lease under the Bankruptcy Code, Borrower shall, prior to Owner effecting such offset, notify Lender of its intention to do so, setting forth the amounts proposed to be so offset and the basis therefor. If Lender has failed to object as aforesaid within ten (10) days after notice from Borrower in accordance with the first sentence of this Section 2.35(g), Borrower may permit Owner to proceed to effect such offset in the amounts set forth in Borrower’s notice. Neither Lender’s failure to object as aforesaid nor any objection or other communication between Lender and Borrower relating to such offset shall constitute an approval of any such offset by Lender. Borrower shall indemnify and save Lender harmless from and against any and all claims, demands, actions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever (including, without limitation, reasonable attorneys’ fees and disbursements) arising from or relating to any such offset by Owner against the rent reserved in the Ground Lease.
(h) Borrower shall immediately, after obtaining knowledge thereof, notify Lender of any filing by or against the Ground Lessor of a petition under the Bankruptcy Code. Borrower shall thereafter forthwith give written notice of such filing to Lender, setting forth any information available to Borrower or Owner as to the date of such filing, the court in which such petition was filed, and the relief sought therein. Borrower shall promptly deliver to Lender following receipt any and all notices, summonses, pleadings, applications and other documents received by Borrower or Owner in connection with any such petition and any proceedings relating thereto.
(i) Borrower shall, and shall cause Owner to, perform all other covenants with respect to the Ground Lease as set forth in the Mortgage for so long as any portion of the Debt remains outstanding (regardless of whether the Mortgage Loan remains outstanding).
Appears in 1 contract
Sources: Loan and Security Agreement (Morgans Hotel Group Co.)
Ground Lease. (a) With respect Borrower shall not, without Lender’s written consent (which consent may not be unreasonably withheld, delayed or conditioned), fail to exercise any option or right to renew or extend the term of any Ground Lease, and shall give prompt written notice to Lender and shall execute, acknowledge, deliver and record any document reasonably requested by Lender to evidence the Lien of the related Security Instruments on such extended or renewed lease term; provided, however, Borrower shall cause Mortgage Borrower not be required to (i) except exercise any particular such option or right to renew or extend to the extent reserved for by Mortgage Borrower shall have received the prior written consent of Lender pursuant (which consent may not be unreasonably withheld, delayed or conditioned) allowing Borrower to Section 9.8 of forego exercising such option or right to renew or extend. If Borrower shall fail to exercise any such option or right as aforesaid, Lender may exercise the Mortgage Loan Agreement, pay all rents, additional rents option or right as Borrower’s agent and other sums required to be paid by Mortgage Borrowerattorney-in-fact, as tenant under provided above in Lender’s own name or in the name of and pursuant to on behalf of a nominee of Lender, after the provisions occurrence of an Event of Default for which Lender has accelerated the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage BorrowerLoan, as tenant thereunderLender may determine in the exercise of its sole and absolute discretion.
(b) Borrower shall not waive, (iii) promptly notify Lender of the giving of excuse, condone or in any written notice by the lessor way release or discharge any Ground Lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borroweror from such Ground Lessor’s obligations, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of covenant and/or conditions under the lessor under any related Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed.
(wc) take any action Borrower shall not, without Lender’s prior written consent (which consent shall not be unreasonably withheld, conditioned or fail to take any action which would result in delayed), surrender, terminate, forfeit, or suffer or permit the surrender of the leasehold estate created by the Ground Lease or the surrender, termination or cancellation of the Ground Leaseforfeiture of, (x) modify, or change, supplement, alter modify or amend the Ground Lease. Consent to one amendment, either orally change, agreement or modification shall not be deemed to be a waiver of the right to require consent to other, future or successive amendments, changes, agreements or modifications. Any acquisition of Ground Lessor’s interest in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect Lease by Borrower or any Affiliate of Borrower shall be accomplished by Borrower in such a manner so as to avoid a merger of the interests of lessor and lessee in the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail unless consent to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken merger is granted by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Loan Agreement (New York REIT, Inc.)
Ground Lease. (a) With Without limitation of the other provisions herein, Ground Lessee makes the following covenants with respect to the Ground Lease, Borrower shall cause Mortgage Borrower to Leases:
(i) except Ground Lessee shall (1) pay (or cause to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay be paid) all rents, additional rents and other sums required to be paid by Mortgage BorrowerGround Lessee, as tenant under and pursuant to the provisions of the Ground LeaseLeases, (ii2) diligently perform and observe (or cause to be performed and observed) all of the terms, covenants and conditions of the Ground Lease Leases on the part of Mortgage BorrowerGround Lessee, as tenant thereunder, (iii3) promptly notify Lender Administrative Agent of the giving of any written notice by the lessor Ground Lessor under any the Ground Lease to Mortgage Borrower Ground Lessee of any event of default (whether or not any applicable notice and cure periods have expired) by Mortgage Borrower, as tenant thereunder, Ground Lessee and deliver to Lender Agent a true copy of each such notice within two (2) Business Days of receipt receipt, and (iv4) promptly notify Lender Administrative Agent of any bankruptcy, reorganization or insolvency proceeding of the lessor Ground Lessor under any the Ground Lease Leases or of any notice thereof, and deliver to Lender Administrative Agent a true copy of such notice within two (2) Business Days of Mortgage BorrowerGround Lessee’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower Ground Lessee in connection with such bankruptcy, reorganization or insolvency proceeding within two five (25) Business Days days after receipt. Borrower .
(ii) Ground Lessee shall not (and shall not permit Mortgage Borrower to)not, without the prior written consent of Lenderthe Required Lenders, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease Leases or sublet (unless on terms acceptable to the termination Administrative Agent), terminate or cancellation of cancel the Ground Lease, (x) Leases or modify, change, supplement, alter or amend the Ground LeaseLeases, either orally or in writing, or (y) vacate the premises upon the land underlying the and if Ground Lease.
(b) With respect to the Ground Lease, if Mortgage Borrower Lessee shall default in the performance or observance of any term, covenant or condition of the Ground Lease Leases on the part of Mortgage Borrower, as tenant thereunder, Ground Lessee and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease Leases on the part of Mortgage Borrower Ground Lessee to be performed or observed on behalf of Mortgage BorrowerGround Lessee, to the end that the rights of Mortgage Borrower Ground Lessee in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord Ground Lessor under the Ground Lease Leases shall deliver to Lender Administrative Agent a copy of any written notice of default under the Ground LeaseLeases, such notice shall constitute full protection to Lender Administrative Agent for any action taken or omitted to be taken by LenderAdministrative Agent, in good faith, in reliance thereon. Borrower Ground Lessee shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease Leases upon demand by Lender Administrative Agent made at any time within one sixty (160) year days prior to the last day upon which any such option may be exercised, and Borrower Ground Lessee hereby expressly authorizes and appoints Lender Administrative Agent its attorney-in-fact to exercise any such option in the name of and upon on behalf of BorrowerGround Lessee, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Financing Agreement (Wheeler Real Estate Investment Trust, Inc.)
Ground Lease. (a) With respect to To the Ground Leasebest of Seller’s knowledge, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground LeaseLease is in full force and effect, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrowerhas not been amended, as tenant thereunder, and (iii) promptly notify Lender there are no defaults by Seller thereunder. Notwithstanding and without limiting the foregoing, (i) if any of the giving representations or warranties of Seller that survive Closing contained in this Agreement or in any document or instrument delivered in connection herewith are materially false or inaccurate, or Seller is in material breach or default of any written notice by the lessor of its obligations under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunderthis Agreement that survive Closing, and deliver Purchaser nonetheless closes the transactions hereunder and purchases the Property, then Seller shall have no liability or obligation respecting such false or inaccurate representations or warranties or other breach or default (and any cause of action resulting therefrom shall terminate upon the Closing) in the event that on or prior to Lender a true copy Closing, Purchaser shall have had actual knowledge of each such notice within two (2) Business Days of receipt the false or inaccurate representations or warranties or other breach or default and (ivii) promptly notify Lender of if any bankruptcy, reorganization or insolvency proceeding of the lessor under representations or warranties of Seller contained in this Agreement or in any Ground Lease document or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower instrument delivered in connection with such bankruptcy, reorganization herewith are false or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (inaccurate and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender the Due Diligence Period Purchaser 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 had knowledge of the termsfalse or inaccurate representations or warranties, covenants then Seller shall have no liability or obligation respecting such false or inaccurate representations or warranties (and conditions Purchaser shall have no cause of the Ground Lease on the part of Mortgage Borrower action or right to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercisedterminate this Agreement with respect thereto), and Borrower hereby expressly authorizes such representations and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and warranties shall be deemed modified to be coupled with an interestthe extent necessary to eliminate all false and inaccurate information and to make such representations and warranties true and accurate in all respects. References to the “knowledge”, “best knowledge” and/or “actual knowledge” of Seller or words of similar import shall refer only to the current actual (as opposed to implied or constructive) knowledge of ▇▇▇▇▇▇▇▇.▇.▇ ▇ ▇▇▇▇▇▇▇ and shall not be construed, by imputation or otherwise, to refer to the knowledge of Seller or any parent, subsidiary or affiliate of Seller or to any other officer, agent, manager, representative or employee of Seller or to impose upon ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ any duty to investigate the matter to which such actual knowledge, or the absence thereof, pertains. Notwithstanding anything to the contrary contained in this Agreement, ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ shall have no personal liability hereunder. The provisions of this Section 7.1.1 shall survive the Closing for a period of two hundred seventy (270) days.
Appears in 1 contract
Ground Lease. (a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to covenants and agrees as follows: (i) except to promptly and faithfully observe, perform and comply with all the extent reserved for by Mortgage Lender pursuant terms, covenants and provisions thereof on its part to Section 9.8 be observed, performed and complied with, at the times set forth therein, and to do all things necessary to preserve unimpaired its rights thereunder; (ii) not to do, permit, suffer or refrain from doing anything, as a result of which there could be a default under or breach of any of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required terms thereof; (iii) not to be paid by Mortgage Borrower, as tenant under and terminate (pursuant to the terms thereof or otherwise), cancel, surrender, modify, amend or in any way alter or permit the alteration of any of the terms thereof and not to release the Ground Lessor under the Ground Lease from any obligations imposed upon it thereby; (iv) not to assign the Ground Lease in whole or in part nor sublet the premises demised under the Ground Lease in whole except in accordance with the provisions of this Agreement; (v) to give Lender immediate written notice of any default by Borrower or the Ground Lessor under the Ground Lease and to immediately deliver to Lender copies of each notice of default and all other material notices, communications, plans, specifications and other similar instruments received or delivered by Borrower in connection therewith; and (vi) to furnish to Lender such information and evidence as Lender may reasonably require concerning Borrower's due observance, performance and compliance with the terms, covenants and provisions thereof.
(b) In the event of any default by Borrower in the performance of any part of its obligations under the Ground Lease, including, without limitation, any default in the payment of rent, additional rent and other charges and impositions made payable by the tenant thereunder, then, in each and every case, Lender may, at its option and without notice, cause the default or defaults to be remedied and otherwise exercise any and all of the rights of Borrower thereunder in the name of and on behalf of Borrower but no such action by Lender shall release Borrower from any default under this Agreement. Borrower shall, on demand, reimburse Lender for all advances made and expenses incurred by Lender in curing any such default (including, without limitation, reasonable attorneys' fees and disbursements), together with interest thereon at the Default Rate from the date that an advance is made or expense is incurred, to and including the date the same is paid and such monies so expended by Lender with interest thereon shall be secured by this Agreement.
(c) If Borrower acquires the fee title or any other estate, title or interest in the Ground Lease Property, or any part thereof, the lien of the Security Instrument shall attach to, cover and be a lien upon such acquired estate, title or interest and same shall thereupon be and become a part of the Property. Borrower agrees to execute all instruments and documents which Lender may reasonably require to ratify, confirm and further evidence Lender's lien on the acquired estate, title or interest. Furthermore, Borrower hereby appoints Lender its true and lawful attorney-in-fact to execute and deliver all such instruments and documents in the name and on behalf of Borrower. This power, being coupled with an interest, shall be irrevocable as long as the Debt remains unpaid.
(d) If the Ground Lease is canceled or terminated, and if Lender or its nominee shall acquire an interest in any new lease or all or any part of the Ground Lease Property, Borrower shall 67 have no right, title or interest in or to the new lease or the leasehold estate created by such new lease.
(e) Borrower shall exercise its best efforts to obtain and deliver to Lender from time to time within ten (10) Business Days after written demand by Lender, an estoppel certificate from the Ground Lessor setting forth, with respect to the Ground Lease (i) the name of the tenant thereunder, (ii) that the Ground Lease has not been modified or, if it has been modified, the date of each modification (together with copies of each such modification), (iii) the base rent and additional rent and other charges payable under the Ground Lease, (iiiv) diligently perform the date to which all rental charges have been paid by the tenant under the Ground Lease, and observe (v) whether there are any defaults or alleged defaults of the tenant under the Ground Lease or if there are any events which have occurred which with notice, the passage of time or both, would constitute a default under the Ground Lease, and, if there are, setting forth the nature thereof in reasonable detail.
(f) Notwithstanding anything to the contrary contained herein, this Agreement shall not constitute an assignment of the Ground Lease within the meaning of any provision thereof prohibiting its assignment and Lender shall have no liability or obligation thereunder by reason of its acceptance of this Agreement. Lender shall be liable for the obligations of the tenant arising under the Ground Lease for only that period of time which Lender is in possession of the Ground Lease Property and has acquired, by foreclosure or otherwise, and is holding all of Borrower's right, title and interest therein.
(g) No release or forbearance of any of Borrower's obligations under the Ground Lease, pursuant to the Ground Lease or otherwise, shall release Borrower from any of its obligations under this Agreement or the other Loan Documents.
(h) Borrower shall enforce the obligations of the Ground Lessor under the Ground Lease to the end that Borrower may enjoy all of the rights granted to it under the Ground Lease, and will immediately notify Lender of any default by the Ground Lessor or Borrower in the performance or observance of any of the terms, covenants and conditions of the Ground Lease on and Borrower will immediately advise Lender of the part occurrence of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender any of the events of default enumerated in the Ground Lease and of the giving of any written notice by the lessor Ground Lessor under any the Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, Borrower thereunder and will immediately deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcynotice. If, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect pursuant to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease Lessor shall deliver to Lender a copy of any written notice of default given to Borrower, as lessee under the Ground Lease, such notice shall constitute full authority and protection to Lender for any action taken or omitted to be taken by Lender, in good faith, faith and in reliance thereon. .
(i) Borrower shall cause Mortgage give Lender immediate notice of the commencement of any arbitration or appraisal proceeding under and pursuant to the provisions of the Ground Lease. Lender shall have the right to intervene and participate in any such proceeding and Borrower shall confer with Lender and its attorneys and experts and cooperate with them to the extent that Lender deems reasonably necessary for the protection of Lender.
(j) Upon the request of Lender, Borrower will exercise each individual optionall rights of arbitration conferred upon it by the Ground Lease. If at any time such proceeding shall be continuing, if anya default by 68 Borrower beyond any applicable cure period in the performance or observance of any covenant, to extend condition or renew the term other requirement of the Ground Lease upon demand by or of this Agreement, on the part of Borrower to be performed or observed shall have occurred and be continuing, Lender made at shall have, and is hereby granted, the sole and exclusive right to designate and appoint on behalf of Borrower, the arbitrator or arbitrators, or appraiser, in such proceeding.
(k) Borrower will, promptly after the execution and delivery of this Agreement or of any time within one instrument or agreement supplemental hereto, notify Ground Lessor in writing of the execution and delivery hereof and deliver to Ground Lessor a copy of each such instrument or agreement.
(1l) year prior Borrower hereby unconditionally and irrevocably assigns to Lender (i) any right which Borrower has pursuant of the terms of the Ground Lease to renew and/or extend the term thereof, (ii) any right which Borrower has pursuant to the last day upon which any such option may be exercisedterms of the Ground Lease to cancel or terminate the Ground Lease, and (iii) any option or right that Borrower has pursuant to the Ground Lease to purchase any or all of the premises demised thereunder; provided, however, that Lender shall not exercise any rights given it under the foregoing items (i) or (iii) in the absence of an existing Event of Default or in the event Lender reasonably determines that such exercise is necessary to protect its interest in the Ground Lease Property.
(m) In the event that it is claimed by any governmental agency, authority or subdivision that any tax or governmental charge or imposition is due, unpaid or payable by Borrower upon or in connection with the Ground Lease, Borrower shall promptly either (i) pay such tax, charge or imposition when due and deliver to Lender reasonably satisfactory proof of payment thereof or (ii) contest such tax in accordance with the applicable provisions of the Loan Documents. If liability for such tax is asserted against Lender, Lender will give to Borrower prompt notice of such claim, and Borrower, upon complying with the provisions of the Loan Documents shall have full right and authority to contest such claim of taxability.
(n) Notwithstanding anything to the contrary contained in this Agreement with respect to the Ground Lease:
(i) If the Ground Lease is terminated for any reason in the event of the rejection or disaffirmance of the Ground Lease by the Ground Lessor pursuant to the Bankruptcy Code, or any other law affecting creditor’s rights, (i) Borrower, immediately after obtaining notice thereof, shall give notice thereof to Lender, (ii) Borrower, without the prior written consent of Lender, shall not elect to treat the Ground Lease as terminated pursuant to Section 365(h) of the Bankruptcy Code or any comparable federal or state statute or law, and any election by Borrower made without such consent shall be void, and (iii) the terms, covenants and conditions of this Loan Agreement and the Loan Documents hereby extends to and covers Borrower’s possessory rights under Section 365(h) of the Bankruptcy Code and to any claim for damages due to the rejection of the Ground Lease or other termination of the Ground Lease. In addition, Borrower hereby expressly authorizes assigns irrevocably to Lender Borrower’s rights to treat the Ground Lease as terminated pursuant to Section 365(h) of the Bankruptcy Code and appoints to offset rents under the Ground Lease in the event any case, proceeding or other action is commenced by or against the Ground Lessor under the Bankruptcy Code or any comparable federal or state statute or law. Without Lender’s prior written consent, Borrower shall not seek to offset, pursuant to Subsection 365(h) of the Bankruptcy Code, against the rent reserved in the Ground Lease, the amount of any damages caused by the nonperformance by the related Ground Lessor of any of its obligations under the Ground Lease after the rejection by Ground Lessor of the Ground Lease under the Bankruptcy Code.
(ii) As security for the Debt, Borrower unconditionally assigns, transfers and sets over to Lender its attorneyall of Borrower’s (a) right to reject the Ground Lease under Section 365 of the Bankruptcy Code or any comparable federal or state statute or law with respect to any case, proceeding or other action commenced by or against Borrower under the Bankruptcy Code or comparable federal or state statute or law, (b) right to seek an extension of the 60-in-fact day period within which Borrower must assume or reject the Ground Lease under Section 365 of the Bankruptcy Code or any comparable federal or state statue or law with respect to exercise any such option case, proceeding or other action commenced by or against Borrower under the Bankruptcy Code or comparable federal or state statute or law ,and (c) claims and rights to the payment of damages arising from any rejection by Ground Lessor of the Ground Lease under the Bankruptcy Code. Lender shall have the right to proceed in the name of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of the Ground Lease, including, without limitation, the right to file and upon behalf prosecute any proofs of Borrowerclaim, which power complaints, motions, applications, notices and other documents in any case in respect of attorney Ground Lessor 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 Debt shall have been satisfied and discharged in full. Any amounts received by Lender or Borrower as damages arising out of the rejection of the Ground Lease as aforesaid shall be irrevocable applied to all costs and expenses of Lender (including, without limitation, attorneys’ fees and costs) incurred in connection with the exercise of any of its rights or remedies in accordance with the applicable provisions of this Agreement. If the foregoing assignment is not effective under applicable law and Borrower shall desire to so reject the Ground Lease, at Lender’s request, Borrower shall assign its interest in the Ground Lease to Lender in lieu of rejecting the Ground Lease, upon receipt by Borrower of notice from Lender of such request together with Lender’s agreement to cure any existing defaults of Borrower under the Ground Lease.
(iii) If any action, proceeding, motion or notice shall be commenced or filed in respect of Ground Lessor or all or any part of the Ground Lease Property in connection with any case under the Bankruptcy Code, Lender and Borrower shall cooperatively conduct and control any such litigation with counsel agreed upon between Borrower and Lender in connection with such litigation. Borrower shall, upon demand, pay to Lender all costs and expenses (including reasonable attorneys’ fees and costs) actually paid or actually incurred by Lender in connection with the cooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be deemed to be coupled secured by the Loan Documents.
(iv) Borrower shall promptly, after obtaining knowledge of such filing, notify Lender orally of any filing by or against Ground Lessor of a petition under the Bankruptcy Code. Borrower shall thereafter promptly give written notice of such filing to Lender, setting forth any information available to Borrower as to the date of such filing, the court in which such petition was filed, and the relief sought in such filing. Borrower shall promptly deliver to Lender any and all notices, summonses, pleadings, applications and other documents received by Borrower in connection with an interest. ▇▇▇▇▇▇▇▇any such petition and any proceedings relating to such petition.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Loan Agreement (Carter Validus Mission Critical REIT II, Inc.)
Ground Lease. (a) With respect to the Ground Lease, El Con Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to)not, without the prior consent of Lender’s written consent, (w) take any action or fail to take exercise any action which would result in the surrender of the leasehold estate created by the Ground Lease option or the termination right to renew or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand in accordance with the terms of the Ground Lease, and shall give immediate written notice to Lender and shall execute, acknowledge, deliver and record any document reasonably requested by Lender made at to evidence the Lien of the related Mortgage on such extended or renewed lease term; provided, however, El Con Borrower shall not be required to exercise any time within one (1) year prior particular such option or right to renew or extend to the last day upon extent El Con Borrower shall have received the prior written consent of Lender (which consent shall not be unreasonably withheld, conditioned, or delayed) allowing El Con Borrower to forego exercising such option or right to renew or extend. If El Con Borrower shall fail to exercise any such option or right as aforesaid, Lender may be exercised, exercise the option or right as El Con Borrower’s agent and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option as provided above in Lender’s own name or in the name of and upon on behalf of Borrowera nominee of Lender, as Lender may determine in the exercise of its sole and absolute discretion.
(b) El Con Borrower shall not waive, excuse, condone or in any way release or discharge Ground Lessor of or from Ground Lessor’s material obligations, covenants and/or conditions under the Ground Lease without the prior written consent of Lender, which power of attorney consent shall not be irrevocable unreasonably withheld, conditioned or delayed.
(c) El Con Borrower shall not, without Lender’s prior written consent, surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modify or amend in a material and adverse manner, the Ground Lease. Consent to one amendment, change, agreement or modification shall not be deemed to be coupled with an interesta waiver of the right to require consent to other, future or successive amendments, changes, agreements or modifications. ▇▇▇▇▇▇▇▇Any acquisition of lessor’s interest in the Ground Lease by El Con Borrower or any Affiliate of El Con Borrower shall be accomplished by El Con Borrower in such a manner so as to avoid a merger of the interests of lessor and lessee in the Ground Lease, unless consent to such merger is granted by Lender.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Ground Lease. (a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground LeaseLease (for the avoidance of doubt, Borrower hereby covenants and agrees that it shall pay 100% of all rents, additional rents and other sums due and payable under the Ground Lease notwithstanding the existence or obligations of any co-tenant thereunder (if any)), (ii) diligently perform and observe observe, in all material respects, all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed and observed, and (iii) promptly notify Lender Agent of the giving receipt of any written notice given by the lessor landlord under any the Ground Lease to Mortgage Borrower with respect to the Ground Lease Put or the Ground Lease ROFR and any notice of any default by Mortgage Borrower in the performance or observance of any of the terms, covenants or conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed, and deliver to Lender Agent a true copy of each such notice within two three (23) Business Days of receipt and (iv) promptly notify Lender Agent of any bankruptcy, reorganization or insolvency proceeding of the lessor landlord under any the Ground Lease or of any notice thereof, and deliver to Lender Agent a true copy of such notice within two three (23) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to)not, without the prior consent of LenderAgent (not to be unreasonably withheld, (w) take any action conditioned or fail to take any action which would result in the delayed), surrender of the leasehold estate created by the Ground Lease or the termination terminate or cancellation of cancel the Ground Lease, (x) Lease or modify, change, supplement, alter or amend the Ground Lease, either orally or in writing. Borrower hereby assigns to Agent, or (y) vacate as further security for the premises upon payment and performance of the land underlying obligations and for the Ground Lease.
(b) With respect to performance and observance of the terms, covenants and conditions of the Mortgage, this Agreement and the other Loan Documents, all of the rights, privileges and prerogatives of Borrower, as tenant under the Ground Lease, if Mortgage to surrender the leasehold estate created by the Ground Lease or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease in any respect, and any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease in any respect without the prior consent of Agent (not to be unreasonably withheld, conditioned or delayed) shall be void and of no force and effect. Furthermore, Borrower shall not elect not to restore the Property pursuant to the terms of the Ground Lease without Agent’s consent. If Borrower shall default in the performance or observance of any material term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunderthereunder (including, without limitation, any obligations under the Ground Lease or the Agreement Concerning Interests with respect to the Ground Lease Put and the Ground Lease ROFR), and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender then, without limiting the generality of the other provisions of the Mortgage, this Agreement and the other Loan Documents, and without waiving or releasing Borrower from any of its obligations hereunder, 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. Notwithstanding the foregoing or anything herein or in the Ground Lease or the Agreement Concerning Interests to the contrary, Borrower shall perform as required by the Ground Lease with respect to the Ground Lease Put on or before the date that is ten (10) days prior to the date the Association (as defined in the Agreement Concerning Interests) may compel Borrower to perform under the Ground Lease Put on the Association’s behalf under the Agreement Concerning Interests. If the landlord under the Ground Lease shall deliver to Lender Agent a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender Agent for any reasonable action taken or omitted to be taken by LenderAgent, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender Agent made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender Agent its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇Borrower will not subordinate or consent to the subordination of the Ground Lease to any mortgage, security deed, lease or other interest on or in the landlord’s interest in all or any part of the Property, unless, in each such case, the written consent (not to be unreasonably withheld, conditioned or delayed) of Agent shall have been first had and obtained.▇
(b) Notwithstanding anything contained in the Ground Lease to the contrary, Borrower shall not further sublet any portion of the Property (other than as permitted pursuant to Section 4.1.9 hereof) without prior written consent (not to be unreasonably withheld, conditioned or delayed) of Agent. Each such sublease hereafter made shall provide that (i) in the event of the termination of the Ground Lease, the sublease shall not terminate or be terminable by the lessee thereunder; (ii) in the event of any action for the foreclosure of the Mortgage, the sublease shall not terminate or be terminable by the lessee thereunder by reason of the termination of the Ground Lease unless such lessee is specifically named and joined in any such action and unless a judgment is obtained therein against such lessee; and (iii) in the event that the Ground Lease is terminated as aforesaid, the lessee under the sublease shall attorn to the ground lessor under the Ground Lease or to the purchaser at the sale of the Property on such foreclosure, as the case may be. In the event that any portion of the Property shall be sublet pursuant to the terms of this subsection, such sublease shall be deemed to be included in the Property.▇▇▇▇▇▇▇▇
(c) So long as any portion of the Debt shall remain unpaid, unless Agent shall otherwise consent (such consent not to be unreasonably withheld, conditioned or delayed), the fee title to the Property and the leasehold estate therein created pursuant to the provisions of the Ground Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Borrower, Agent, or in any other person by purchase, operation of law or otherwise. Agent reserves the right, at any time, to release portions of the Property, including, but not limited to, the leasehold estate created by the Ground Lease, with or without consideration, at Agent’s election, without waiving or affecting any of its rights under this Agreement or the other Loan Documents and any such release shall not affect Agent’s rights in connection with the portion of the Property not so released.
(d) If the Ground Lease is terminated for any reason in the event of the rejection or disaffirmance of the Ground Lease pursuant to the Bankruptcy Code, or any other law affecting creditor’s rights, (i) the Borrower, immediately after obtaining notice thereof, shall give notice thereto to Agent, (ii) Borrower, without the prior written consent of Agent, shall not elect to treat the Ground Lease as terminated pursuant to Section 365(h) of the Bankruptcy Code or any comparable federal or state statute or law, and any election by Borrower made without such consent shall be void and (iii) this Agreement, the Note, the Mortgage and the other Loan Documents and all the liens, terms, covenants and conditions of this Agreement, the Note, the Mortgage and the other Loan Documents hereby extends to and covers Borrower’s possessory rights under Section 365(h) of the Bankruptcy Code and to any claim for damages due to the rejection of the Ground Lease or other termination of the Ground Lease. In addition, Borrower hereby assigns irrevocably to Agent Borrower’s rights to treat the Ground Lease as terminated pursuant to Section 365(h) of the Bankruptcy Code and to offset rents under such Ground Lease in the event any case, proceeding or other action is commenced by or against the ground lessor under the Bankruptcy Code or any comparable federal or state statute or law.
(e) Borrower hereby assigns to Agent (i) Borrower’s right to reject the Ground Lease under Section 365 of the Bankruptcy Code or any comparable federal or state statute or law with respect to any case, proceeding or other action commenced by or against Borrower under the Bankruptcy Code or comparable federal or state statute or law and (ii) Borrower’s right to seek an extension of the sixty (60)-day period within which Borrower must accept or reject the Ground Lease under Section 365 of the Bankruptcy Code or any comparable federal or state statute or law with respect to any case, proceeding or other action commenced by or against Borrower under the Bankruptcy Code or comparable federal or state statute or law. Further, if the foregoing assignment is not effective under applicable law and Borrower shall desire to so reject the Ground Lease, at Agent’s request, Borrower shall assign its interest in the Ground Lease to Agent in lieu of rejecting the Ground Lease, upon receipt by Borrower of notice from Agent of such request together with Agent’s agreement to cure any existing defaults of Borrower under the Ground Lease.
(f) Borrower hereby agrees that if the Ground Lease is terminated for any reason in the event of the rejection or disaffirmance of the Ground Lease pursuant to the Bankruptcy Code or any other law affecting creditor’s rights, any property not removed by the Borrower as permitted or required by the Ground Lease, shall at the option of Agent be deemed abandoned by Borrower, provided that Agent may remove any such property required to be removed by Borrower pursuant to the Ground Lease and all reasonable, out-of-pocket costs and expenses incurred by Agent with respect to such removal shall be paid by Borrower within ten (10 Business Days of receipt by Borrower of an invoice for such removal costs and expenses.
(g) Borrower hereby agrees that if the Ground Lease is for any reason whatsoever terminated prior to the natural expiration of its term, and if, pursuant to any provisions of the Ground Lease or otherwise, Agent or its designee shall acquire from the ground lessor thereunder another lease of the Property, Borrower shall have no right, title or interest in or to such other lease or the leasehold estate created thereby.
(h) Borrower may acquire the Ground Lease Parcel Fee Interest in connection with the Ground Lease Put or the Ground Lease ROFR (the “Ground Lease Parcel Fee Interest Acquisition”) in accordance with the terms of the Ground Lease and the Agreement Concerning Interests; provided that, in connection therewith, each of the following conditions are satisfied: (i) Borrower shall provide Agent with prior written notice of the Ground Lease Parcel Fee Interest Acquisition, (ii) Borrower shall provide Agent documentation evidencing that the Ground Lease Parcel Fee Interest Acquisition (including, without limitation, the closing costs thereof and any transfer or similar taxes payable in connection therewith) has been paid in full, (iii) [intentionally omitted], (iv) Borrower and, if required by Agent, Guarantor shall enter into such amendments or other modifications to the Loan Documents as may be reasonably required by Agent (which such amendments or modifications shall be limited to such amendments or modifications as may be reasonably required to add the Ground Lease Parcel Fee Interest to the definition of “Property” thereunder and otherwise collateralize the same unless a specific fact or circumstance related to the Ground Lease Parcel Fee Interest, Borrower, Guarantor, the seller of the Ground Lease Parcel Fee Interest and/or the Property shall exist and shall reasonably necessitate additional amendments or modifications to the Loan Documents as reasonably determined by Agent), (v) Borrower shall provide Agent (A) a title search for the Property indicating that the Property is free from all liens, claims and other encumbrances other than Permitted Encumbrances and (B) such title insurance as may be reasonably required by Agent (which such title insurance shall be limited to the same as may be reasonably required for Agent to add the Ground Lease Parcel Fee Interest to the Title Insurance Policy unless a specific fact or circumstance related to the Ground Lease Parcel Fee Interest, Borrower, Guarantor, the seller of the Ground Lease Parcel Fee Interest and/or the Property shall exist that would have a Material Adverse Effect and shall reasonably necessitate additional title insurance as reasonably determined by Agent), (vi) Borrower shall provide Agent with copies of the documents and/or instruments entered into in connection with the Ground Lease Parcel Fee Interest Acquisition and deliver such legal opinions, in each case, as may be reasonably required by Agent (which such opinions shall be limited to the due authorization, execution, delivery and enforceability of any Loan Document amendments entered into in connection with this Section 4.1.20(h) unless a specific fact or circumstance related to the Ground Lease Parcel Fee Interest, Borrower, Guarantor, the seller of the Ground Lease Parcel Fee Interest and/or the Property shall exist that would have a Material Adverse Effect and shall reasonably necessitate additional opinions as reasonably determined by Agent), (vii) [intentionally omitted], (viii) Borrower shall pay all of its own costs and expenses (including, without limitation, the sums required to consummate the Ground Lease Parcel Fee Interest Acquisition) and shall pay all of Agent’s (and any Lender’s) reasonable, out-of-pocket costs and expenses incurred in connection therewith (including, without limitation, reasonable attorneys’ fees, mortgage or similar taxes and recording fees), and (ix) Borrower shall provide Agent an Officer’s Certificate certifying that, as of the consummation of the Ground Lease Parcel Fee Interest Acquisition, the terms and conditions of this Section 4.1.20(h) have been satisfied. Notwithstanding anything to the contrary contained herein or in any other Loan Document, after the consummation of the Ground Lease Parcel Fee Interest Acquisition in accordance with the terms and conditions hereof, (x) the defined term “Property” hereunder and under the other Loan Documents shall be deemed to include the Ground Lease Parcel Fee Interest and (y) Borrower shall have the right, with the prior consent of Agent, which consent shall not be unreasonably withheld, to terminate the Ground Lease.
Appears in 1 contract
Sources: Loan Agreement (Black Creek Diversified Property Fund Inc.)
Ground Lease. (a) With respect Borrower shall, at Borrower’s sole cost and expense, promptly and timely perform and observe all the material terms, covenants and conditions required to be performed and observed by Borrower as lessee under the Ground Lease (including, but not limited to, the payment of all rent, additional rent, percentage rent and other charges required to be paid under the Ground Lease). Borrower shall not provide any notice of non-renewal of any Ground Lease to the applicable Ground Lessor.
(b) Upon written request from Lender and provided that Borrower shall not have notified Lender or does not notify Lender within five (5) Business Days of receipt of such request of Lender, of its intent to release the Ground Leased Property in accordance with Section 2.5.2(l), if Borrower shall be in default under the Ground Lease, then, subject to the terms of the Ground Lease, Borrower shall grant Lender the right (but not the obligation), to cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of default or defaults under the Mortgage Loan Agreement, pay all rents, additional rents and other sums required Ground Lease to be paid by Mortgage Borrower, as tenant remedied and otherwise exercise any and all rights of Borrower under and pursuant to the provisions of the Ground Lease, (ii) diligently perform as may be necessary to prevent or cure any default provided such actions are necessary to protect Lender’s interest in the Individual Property under the Loan Documents, and observe Lender shall, subject to the rights of Tenants, Permitted Encumbrances and hotel guests and patrons, have the right to enter all or any portion of the termsrelated Ground Leased Property at such times and in such manner as Lender deems necessary, covenants and conditions to prevent or to cure any such default; provided that in each case, such actions are necessary to protect Lender’s interest under the Loan Documents.
(c) The actions or payments of Lender to cure any default by Borrower under the Ground Lease on the part of Mortgage Borrowershall not remove or waive, as tenant thereunderbetween Borrower and Lender, the default that occurred under this Agreement by virtue of the default by Borrower under the Ground Lease unless and until the Borrower shall have reimbursed Lender for all sums referenced in the immediately succeeding sentence and the applicable default shall have been cured. All sums expended by Lender to cure any such default shall be paid by Borrower to Lender, 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 Lender. All such indebtedness shall be deemed to be secured by the related Mortgage.
(iiid) promptly Borrower shall notify Lender promptly in writing of the giving occurrence of any material default by Ground Lessor under the Ground Lease or following the receipt by Borrower of any written notice by from Ground Lessor under the lessor under any Ground Lease to Mortgage Borrower noting or claiming the occurrence of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor Borrower under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination occurrence of any event that, with the passage of time or cancellation service of notice, or both, would constitute a default by Borrower under the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect to the Ground Lease, if Mortgage . Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall promptly deliver to Lender a copy of any such written notice of default.
(e) Upon written request from Lender, Borrower shall use commercially reasonable efforts to obtain from Ground Lessor under the Ground Lease and furnish to Lender the estoppel certificate of Ground 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, but in no event (so long as no Event of Default has occurred and is continuing) more than one (1) time in any Fiscal Year.
(f) Upon written request from Lender and provided that Borrower shall not have notified Lender or does not notify Lender within five (5) Business Days of receipt of such request of Lender, of its intent to release the Ground Leased Property in accordance with Section 2.5.2(l), Borrower shall promptly execute, acknowledge and deliver to Lender such instruments as may reasonably be required to permit Lender to cure any default under the Ground Lease or permit Lender to take such other action required to enable Lender to cure or remedy the matter in default and preserve the security interest of Lender under the Loan Documents with respect to each Ground Leased Property. Borrower irrevocably appoints Lender as its true and lawful attorney in fact to do, in its name or otherwise, unless Borrower has notified Lender of its intention to release the Ground Leased Property in accordance with Section 2.5.2(l), during the continuance of an Event of Default, any and all acts and to execute any and all documents that are necessary to preserve any rights of Borrower under or with respect to each Ground Lease, including, without limitation, the right to effectuate any extension or renewal of each Ground Lease, or to preserve any rights of Borrower whatsoever in respect of any part of each Ground Lease (and the above powers granted to Lender are coupled with an interest and shall be irrevocable).
(g) Notwithstanding anything to the contrary contained in this Agreement with respect to the Ground Lease:
(i) The lien of the related Mortgage attaches to all of Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, 11 U.S.C. Sections 101 et seq., including, without limitation, all of Borrower’s rights, as debtor, to remain in possession of the related Ground Leased Property.
(ii) Borrower shall not, without Lender’s written consent, elect to treat the Ground Lease as terminated under Subsection 365(h)(l) of the Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(iii) As security for the Debt, Borrower unconditionally assigns, transfers and sets over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by the lessor under the Ground Lease under the Bankruptcy Code. Lender, and Borrower shall proceed jointly or in the name of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of the Ground 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 lessor 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 Debt shall have been satisfied and discharged in full. Any amounts received by Lender or Borrower as damages arising out of the rejection of the Ground Lease as aforesaid shall be applied to all costs and expenses of Lender (including, without limitation, attorneys’ fees and costs) incurred in connection with the exercise of any of its rights or remedies in accordance with the applicable provisions of this Agreement.
(iv) If, pursuant to Subsection 365(h) of the Bankruptcy Code, Borrower seeks to offset, against the rent reserved in the Ground Lease, the amount of any damages caused by the nonperformance by the lessor of any of its obligations thereunder after the rejection by lessor of the Ground Lease under the Bankruptcy Code, then Borrower shall not affect any offset of such amounts unless it shall have provided written notice to Lender of its intent to do so and Lender shall have consented thereto (provided Lender shall be deemed to have consented thereto if it shall fail to object to the same in written notice to Borrower within ten (10) Business Days after receipt of the aforementioned notice in which case Borrower may proceed to offset the amounts set forth in Borrower’s notice.
(v) If any action, proceeding, motion or notice shall be commenced or filed in respect of any lessor of all or any part of the Ground Leased Property in connection with any case under the Bankruptcy Code, Lender and Borrower shall cooperatively conduct and control any such litigation with counsel agreed upon between Borrower and Lender in connection with such litigation. Borrower shall, upon demand, pay to Lender all reasonable actual out of pocket costs and expenses (including reasonable attorneys’ fees and costs) actually paid or actually incurred by Lender in connection with the cooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be secured by the lien of the related Mortgage.
(vi) Borrower shall promptly, after obtaining knowledge of such filing notify Lender orally of any filing by or against the lessor under the Ground Lease of a petition under the Bankruptcy Code, setting forth any information available to Borrower as to the date of such filing, the court in which such petition was filed, and the relief sought in such filing. Borrower shall promptly deliver to Lender any and all notices, summonses, pleadings, applications and other documents received by Borrower in connection with any such petition and any proceedings relating to such petition.
(h) If Lender, its nominee, designee, successor, or assignee acquires title and/or rights of Borrower under the Ground Lease by reason of foreclosure of the applicable Mortgage, deed in lieu of foreclosure or otherwise, such party shall (x) succeed to all of the rights of and benefits accruing to Borrower under the Ground Lease, and (y) be entitled to exercise all of the rights and benefits accruing to Borrower under the Ground Lease. At such notice time as Lender shall constitute full protection request, Borrower agrees to execute and deliver and use commercially reasonable efforts to cause any third party to execute and deliver to Lender for any action taken such documents as Lender and its counsel may reasonably require in order to insure that the provisions of this section will be validly and legally enforceable and effective against Borrower and all parties claiming by, through, under or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of against Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Ground Lease. (a) With respect to the Ground LeaseEach Mortgagor shall promptly:
(1) Perform, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 observe and comply with all of the Mortgage Loan Agreementobligations, pay all rents, additional rents covenants and other sums agreements required to be paid performed, observed and complied with by Mortgage Borrower, as tenant the lessee under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease to which such Mortgagor is a party, and do all things necessary to preserve and to keep unimpaired its rights thereunder;
(2) Notify Bank of any material default in the performance or observance of any of the covenants or agreements on the part of Mortgage Borrowersuch Mortgagor to be performed or observed by such Mortgagor under the Ground Lease to which such Mortgagor is a party, as tenant thereunder, (iii) promptly notify Lender of or the giving of any notice by the lessor under such Ground Lease to such Mortgagor (A) claiming such a default, or (B) of such lessor’s intention to exercise any remedy reserved to the lessor thereunder; and
(3) Cause a copy of each such notice given by such lessor to such Mortgagor to be delivered to Bank.
(b) In addition to any insurance required pursuant to this Deed of Trust or any other Loan Document, each Mortgagor will take out and continuously maintain in effect, or cause to be taken out and thereafter continuously maintained in effect, the insurance required to be maintained by the lessee under the Ground Lease to which such Mortgagor is a party. All such insurance policies shall name as additional insured Bank as its interest shall appear. All certificates evidencing the insurance so required to be carried by the Ground Leases and this Deed of Trust shall be deposited with Bank. Prior to the expiration or cancellation of any such policy, Mortgagors will furnish to Bank evidence satisfactory to Bank that such policy has been renewed or replaced by another policy. Each Mortgagor covenants, represents and warrants to Bank that so long as this Deed of Trust remains unsatisfied, it will comply with all the obligations required on its part to be performed under the Ground Lease to which such Mortgagor is a party. In the event that any Mortgagor fails or refuses to perform any of its obligations under the Ground Lease to which such Mortgagor is a party following the expiration of any applicable grace or cure period, Bank may, but shall not be obligated to, perform any and all such obligations of such Mortgagor under such Ground Lease, including, but not limited to, the payment of any or all rent and other sums due from such Mortgagor thereunder. Any costs or expenses incurred by Bank in performing the obligations of any Mortgagor under the Ground Lease to which such Mortgagor is a party, including any rent or other sums paid by Bank, shall constitute part of the Obligations and shall be secured hereby.
(c) If any Mortgagor shall fail to perform, observe or comply with any of the obligations, covenants or agreements required to be performed, observed or complied with by it under the Ground Lease to which such Mortgagor is a party following the expiration of any applicable grace or cure period, including, without limitation, payment of all ground rent and other charges due thereunder, Bank, after five (5) days’ written notice (except in emergencies or in situations where a failure sooner to perform or observe the same may result in a forfeiture under such Ground Lease) may, but shall not be obligated to, take such action as is appropriate to cause such covenants, agreements or obligations promptly to be performed, observed or complied with on behalf of such Mortgagor, including, but not limited to, the payment of any or all rent and other sums due from such Mortgagor thereunder, but no action so taken by Bank shall release any Mortgagor from any of its obligations under this Deed of Trust. Upon receipt by Bank from the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereofof default by the applicable Mortgagor thereunder that has not been cured within any applicable grace or cure period, Bank may rely thereon and deliver take any such action as aforesaid to Lender a true copy cure such default even though the existence of such notice within two (2) Business Days default or the nature thereof may be questioned or denied by such Mortgagor or by any party on behalf of Mortgage Borrower’s receiptsuch Mortgagor. Any costs or expenses incurred by Bank in taking any action as provided for in this paragraph, together with copies including any rent or other sums paid by Bank, shall constitute part of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (the Obligations and shall not permit Mortgage Borrower to), without the prior consent of Lender, be secured hereby.
(wd) take any action or fail to take any action which would result in the No Mortgagor shall surrender of the its leasehold estate created by under the Ground Lease to which such Mortgagor is a party, nor terminate or the termination or cancellation of cancel the Ground LeaseLease to which such Mortgagor is a party, (x) and Mortgagor shall not modify, change, supplement, alter or amend in any material respect the Ground LeaseLease to which such Mortgagor is a party, either orally or in writing, or (y) vacate and any attempt on the premises upon part of any Mortgagor to exercise any such right without the land underlying the Ground Leaseconsent of Bank shall be null and void.
(be) With respect The fee title to the properties demised by each Ground Lease and the leasehold estate shall not merge, but always shall remain separate and distinct, notwithstanding the union of such estates either in the lessor or in the lessee under such Ground Lease or in a third party by purchase or otherwise.
(f) Each Mortgagor shall give Bank prompt notice of the commencement of any arbitration or appraisal proceeding pursuant to the Ground LeaseLease to which such Mortgagor is a party. Bank shall have the right to intervene and participate in any such proceeding and each Mortgagor shall confer with Bank and its attorneys and experts and cooperate with them to the extent Bank deems reasonably necessary for the protection of Bank. Upon the request of Bank, if Mortgage Borrower each Mortgagor shall exercise all rights of arbitration or appraisal conferred upon it by the Ground Lease to which such Mortgagor is a party. If at the time any such proceeding shall be commenced, any Mortgagor shall be in default in the performance or observance of any term, covenant or condition of agreement contained in the Ground Lease to which such Mortgagor is a party, or in this Deed of Trust, on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower such Mortgagor to be performed or observed observed, beyond any applicable grace period, Bank shall have, and is hereby granted, the sole and exclusive right to designate and appoint on behalf of Mortgage Borrower, such Mortgagor the arbitrator(s) or appraiser(s) in such proceeding.
(g) Each Mortgagor shall use its reasonable efforts to obtain from the end that the rights of Mortgage Borrower in, to and lessor under the Ground Lease shall be kept unimpaired to which such Mortgagor is a party, and free from default. If the landlord under the deliver to Bank, within twenty (20) days after written request by Bank, a statement in writing certifying that such Ground Lease shall deliver is unmodified and in full force and effect (or if modified, stating the modifications) and the dates to Lender a copy of any written notice of default under which the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual optionground rent and other charges, if any, have been paid in advance, and stating whether or not, to extend or renew the term best knowledge of the signer of such certificate, such Mortgagor is in default in the performance of any covenant or agreement contained in such Ground Lease upon demand by Lender made Lease, and, if so, specifying each such default of which the signer may have knowledge.
(h) Each Mortgagor, at any time within one least six (16) year months prior to the last day upon which such Mortgagor, as lessee under the Ground Lease to which such Mortgagor is a party, may validly exercise any option to renew or extend the term of such option may be exercisedGround Lease (but in no event earlier than permitted by the applicable Ground Lease), (i) duly shall exercise such option, and Borrower (ii) shall give immediate notice thereof to Bank; if such Mortgagor shall fail so to do, Bank shall have, and is hereby expressly authorizes and appoints Lender its attorney-in-fact granted, the irrevocable right to exercise any such option option, either in its own name and behalf, or in the name of and upon behalf of Borrowersuch Mortgagor, as Bank shall in its sole discretion determine.
(i) Each Mortgagor promptly shall notify Bank of any change in ground rent payable by the lessee under the Ground Lease to which power such Mortgagor is a party.
(j) In the event that any proceeds of attorney insurance on any part of the Mortgaged Property, or any proceeds of any award for the taking by eminent domain of any part of the Mortgaged Property, shall be irrevocable deposited with any Person pursuant to the requirements of any Ground Lease, the applicable Mortgagor promptly shall notify Bank of the name and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇address of such person and the amount so deposited.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Leasehold Deed of Trust / Deed of Trust and Security Agreement (CNL Healthcare Properties, Inc.)
Ground Lease. (a) With respect The provisions of Sections 4.1.45 and 5.1.26 of the Loan Agreement are hereby incorporated by reference into this Mortgage to the same extent and with the same force as if fully set forth herein.
(b) If the Ground Lease is rejected in any case, proceeding or other action commenced by or against the lessor under the Ground Lease (or any person or party constituting or having an interest in the Ground Lease) under the Bankruptcy Code or any comparable federal or state statute or law, Borrower shall cause Mortgage Borrower to (i) except Mortgagor, immediately after obtaining notice thereof, shall give notice thereof to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground LeaseMortgagee, (ii) diligently perform and observe all Mortgagor, without the prior written consent of Mortgagee, shall not elect to treat the Ground Lease as terminated pursuant to Section 365(h)(1)(A)(i) of the Bankruptcy Code or any comparable federal or state statute or law, and any election by Mortgagor made without such consent shall be void and (iii) the Mortgage and all the liens, terms, covenants and conditions of the Mortgage shall extend to and cover Mortgagor’s possessory rights under Section 365(h) of the Bankruptcy Code and to any claim for damages due to lessor’s rejection of the Ground Lease. In addition, Mortgagor hereby assigns to Mortgagee Mortgagor’s rights to remain in possession of the premises demised under the Ground Lease on and to offset rents under the part of Mortgage Borrower, as tenant thereunder, (iiiGround Lease under Section 365(h)(1)(A)(ii) promptly notify Lender of the giving of Bankruptcy Code in the event any written notice case, proceeding or other action is commenced by or against the lessor under any the Ground Lease to Mortgage Borrower of under the Bankruptcy Code or any default by Mortgage Borrower, as tenant thereunder, comparable federal or state statute or law.
(c) It is hereby agreed that the fee title and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created in the property demised by the Ground Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of said estates in either the Ground Lessor, Mortgagor or a third party, whether by purchase or otherwise and Mortgagee shall continue to have and enjoy all of the termination rights and privileges of the Mortgagee as to the separate estates. If Mortgagor acquires the fee title, the interest of the Ground Lessor or cancellation of any other estate, title or interest in the property demised by the Ground Lease, (x) modifyor any part thereof, changethe lien of this Mortgage shall attach to, supplementcover and be a lien upon such acquired estate, alter title or amend interest and same shall thereupon be and become a part of the Ground LeaseProperty with the same force and effect as if specifically encumbered herein. Mortgagor agrees to execute all instruments and documents which Mortgagee may reasonably require to ratify, either orally confirm and further evidence Mortgagee’s lien on the acquired estate, title or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect interest and to provide such endorsements to the Ground Lease, if Mortgagee’s title policy issued in connection with the Loan insuring that this Mortgage Borrower shall default creates a first prior security interest on the Mortgagor’s fee interest in the performance Property; provided, however, that if Mortgagor elects to merge the fee simple estate in the Property with the leasehold estate in the Property, Mortgagee shall not unreasonably withhold, condition or observance of any termdelay its consent thereto. Furthermore, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, Mortgagor hereby appoints Mortgagee its true and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its lawful attorney-in-fact to exercise any execute and deliver all such option instruments and documents in the name of and upon on behalf of BorrowerMortgagor in the event that Mortgagor fails to do same. This power, which power of attorney shall be irrevocable and shall be deemed to be being coupled with an interest. ▇▇▇▇▇▇▇▇, shall be irrevocable as long as the Obligations remain unpaid.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Ground Lease. Borrower shall (a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground LeaseLease as and when such rent or other charge is payable, (iib) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed and observed at least thirty (iii30) days prior to the expiration of any applicable grace period therein provided, and (c) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease Lessor to Mortgage Borrower of any default by Mortgage Borrower in the performance or observance of any of the terms, covenants or conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receiptnotice. Borrower shall not (and shall not permit Mortgage Borrower to)not, without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination terminate or cancellation of cancel the Ground Lease, (x) Lease or modify, change, supplement, alter or amend the Ground Lease, in any material respect, either orally or in writing, or (y) vacate and Borrower hereby assigns to Lender, as further security for the premises upon payment of the land underlying Debt and for the performance and observance of the terms, covenants and conditions of this Mortgage, the Second Mortgage and the Loan Agreement, all of the rights, privileges and prerogatives of Borrower, as tenant under the Ground Lease.
(b) With , to surrender the leasehold estate created by the Ground Lease or to terminate, cancel, modify in any material respect, change in any material respect, supplement in any material respect, alter or amend in any material respect the Ground Lease, and any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease without the prior consent of Lender shall be void and of no force and effect. Borrower shall not exercise any option to purchase the Lease Property granted to Borrower pursuant to the Ground Lease, if Mortgage without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed. If Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of this Mortgage, the Second Mortgage and shall fail to cure the same prior to the expiration Loan Agreement, and without waiving or releasing Borrower from any of any applicable cure period provided its obligations hereunder or thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower Borrower, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from defaultdefault (subject to Borrower's right to contest in accordance with the Loan Agreement). If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Borrower of the making of any such payment, the performance of any such act, or the taking of any such action. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. Lender may pay and expend such sums of money as Lender deems reasonably necessary for any such purpose and upon so doing shall be subrogated to any and all rights of the Ground Lessor. Borrower hereby agrees to pay to Lender immediately upon demand therefor, all such sums so paid and expended by Lender, together with interest thereon from the day of such payment at the Default Rate. All sums so paid and expended by Lender and the interest thereon shall be secured by the legal operation and effect of the Mortgage and Second Mortgage. If the landlord under the Ground Lease Lessor shall deliver to Lender a copy of any written notice of default sent by said Ground Lessor to Borrower, as tenant under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to of the last day upon which any such option may be exercised, and and, if Borrower fails to exercise such option, Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇Borrower will not subordinate or consent to the subordination of the Ground Lease to any mortgage, security deed, lease or other interest on or in the Ground Lessor's interest in all or any part of the Property, unless, in each such case, the written consent of Lender shall have been first had and obtained, which consent shall be in Lender's sole and absolute discretion. Each Lease hereafter made and each renewal of any existing Lease shall provide that, (i) in the event of the termination of the Ground Lease, the Lease shall not terminate or be terminated by the tenant; (ii) in the event of any action for the foreclosure of the Mortgage or Second Mortgage, the Lease shall not terminate or be terminable by the tenant by reason of the foreclosure of the Ground Lease unless the tenant is specifically named and joined in any such action and unless a judgment is obtained therein against the tenant; and (iii) in the event that the Ground Lease is terminated as aforesaid, the tenant shall attorn to the Ground Lessor or to the purchaser at the sale of the Property on such foreclosure, as the case may be.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Ground Lease. (a) With respect (1) The Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, except as set forth on Schedule XII attached hereto, (ii) there are no existing defaults under the Ground Lease by Borrower, or, to Borrower’s knowledge, the lessor thereunder, and, to Borrower’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under the Ground Lease, Borrower shall cause Mortgage Borrower to (iiii) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be due and payable under the Ground Lease have been paid by Mortgage Borrowerin full, as tenant (iv) neither Borrower nor the lessor under and pursuant to the provisions Ground Lease has commenced any action or given or received any notice for the purpose of terminating the Ground Lease, (iiv) diligently perform to Borrower’s knowledge, the lessor under any Ground Lease, as debtor in possession or by a trustee for such lessor, has not given any notice of, and observe all of Borrower has not consented to, any attempt to sell or transfer the terms, covenants Ground Lessor Estate free and conditions clear of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, under Section 363(f) (iiior any similar provision) promptly notify Lender of the giving of any written notice by U.S. Bankruptcy Code, and (vi) to Borrower’s knowledge, the lessor under any Ground Lease is not subject to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding of and the lessor under Ground Lessor Estate is not an asset being administered in any Ground Lease voluntary or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such involuntary bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.proceeding;
(b) With respect The Ground Lease permits the interest of the lessee and/or sublessee, as applicable, thereunder to be encumbered by the Mortgages;
(c) The Ground LeaseLease or a memorandum of Ground Lease has been recorded and, if Mortgage Borrower shall default except as indicated in the performance or observance of any termTitle Insurance Policy, covenant or condition of Borrower’s interest in the Ground Lease is not subject to any Lien (other than the applicable Mortgage);
(d) Except as set forth on the part of Mortgage Schedule 4.44, Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 ’s interest in the Ground Lease is assignable to Lender (and its successors and/or assigns, including the trustee of any REMIC Trust) upon notice to, but without the consent of, the lessor thereunder and, in the event that it is so assigned, it is further assignable by Lender (and its successors and/or assigns, including any trustee of a REMIC Trust) upon notice to, but without the need to obtain the consent of, such lessor;
(e) Except as set forth on Schedule 4.44, the part Ground Lease requires the lessor thereunder to give notice of Mortgage any default by Borrower to be performed Lender provided Borrower gives such lessor written notice of Lender’s address, and the Ground Lease further provides that any right of Borrower or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and lessor under the Ground Lease shall be kept unimpaired and free from default. If the landlord under to terminate the Ground Lease shall deliver not be effectively exercised by Borrower or such lessor, as applicable, nor honored by Borrower or such lessor, as applicable, unless such right of termination shall be joined in and consented to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender;
(f) Except as set forth on Schedule 4.44, in good faithLender is permitted an opportunity (including, in reliance thereon. Borrower shall cause Mortgage Borrower where necessary, sufficient time to exercise each individual option, if any, to extend or renew the term gain possession of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and interest of Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. under ▇▇▇▇▇▇▇▇.▇▇.▇▇▇▇▇▇▇▇▇ 77 the Ground Lease) to cure any default under the Ground Lease, which is curable after the receipt of notice of any default before the lessor thereunder may terminate the Ground Lease;
(g) Except as set forth on Schedule 4.44, the Ground Lease has a term (with extensions) which extends not less than twenty (20) years beyond the Maturity Date;
(h) The Ground Lease requires the lessor thereunder to enter into a new lease with any permitted leasehold mortgagee upon termination of the Ground Lease for any reason, including rejection of the Ground Lease by Borrower in a bankruptcy proceeding;
(i) Except as set forth on Schedule 4.44, under the terms of the Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the applicable Ground Leased Property or to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon in the manner, and subject to the provisions of, the Ground Lease;
(j) The Ground Lease does not impose commercially unreasonable restrictions on subletting; and
(k) Borrower shall not exercise its purchase option right under the Portsmouth Ground Lease without first satisfying any conditions precedent that may be reasonably imposed by Lender to the exercise of such purchase option (including, without limitation, the execution of any amendments to the applicable Mortgage and a date down of the applicable Title Insurance Policy, together with any endorsements necessary to insure Lender’s Lien over the fee portion of the applicable Property).
Appears in 1 contract
Ground Lease. (a) With respect to the Ground Lease, Leasehold Borrower shall cause Mortgage Borrower to will: (i) except to pay the extent reserved for rent required by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, Lease as the same becomes due and payable; (ii) diligently promptly perform and observe all of the termsmaterial covenants, covenants agreements, obligations and conditions of required to be performed and observed by Leasehold Borrower under the Ground Lease on the part of Mortgage BorrowerLease, as tenant and do all things necessary to preserve and keep unimpaired its rights thereunder, ; (iii) promptly notify Lender in writing of the giving commencement of any written notice a proceeding under the federal bankruptcy laws by or against Leasehold Borrower or, upon Leasehold Borrower's receipt of notification thereof, the lessor under the Ground Lease; (iv) if any of the indebtedness secured hereby remains unpaid at the time when notice may be given by the lessee under the Ground Lease of the exercise of any right to Mortgage renew or extend the term of the Ground Lease, promptly give notice to the lessor thereunder of the exercise of such right of extension or renewal; (v) in case any proceeds of insurance upon the Property or any part thereof are deposited with any Person other than Lender, promptly notify Lender in writing of the name and address of the Person with whom such proceeds have been deposited and the amount so deposited; (vi) promptly notify Lender in writing of the receipt by Leasehold Borrower of any notice (other than notices customarily sent on a regular periodic basis) from the lessor under the Ground Lease and of any notice noting or claiming any default by Mortgage BorrowerLeasehold Borrower in the performance or observance of any of the terms, as tenant thereundercovenants, or conditions on the part of Leasehold Borrower to be performed or observed under the Ground Lease; (vii) promptly notify Lender in writing of the receipt by Leasehold Borrower of any notice from the lessor of any termination of the Ground Lease and deliver to Lender promptly cause a true copy of each such notice within two (2) Business Days of receipt to be delivered to Lender; and (ivviii) promptly notify Lender in writing of any bankruptcyrequest made by either party to the Ground Lease to the other party thereto for arbitration or appraisal proceedings pursuant to the Ground Lease, reorganization or insolvency proceeding and of the lessor under any Ground Lease or institution of any notice thereof, arbitration or appraisal proceedings and promptly deliver to Lender a true copy of the determination of the arbitrators or appraisers in each such notice within two proceeding.
(2b) Business Days of Mortgage Leasehold Borrower will not surrender the Ground Lease or Leasehold Borrower’s receipt's leasehold estate and interest therein, together with copies of all noticesnor terminate or cancel the Ground Lease; and except as set forth in the Loan Agreement, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to)will not, without the prior written consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate and as further security for the premises upon repayment of the land underlying indebtedness hereby secured and for the performance of the covenants, agreements, obligations and conditions herein and in the Ground Lease.
(b) With respect Lease contained, Leasehold Borrower hereby assigns to Lender all of its rights, privileges and prerogatives as lessee under the Ground Lease to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease and, except as set forth in the Loan Agreement, any such termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease, if Mortgage without the prior written consent thereto by Lender, shall be void and of no force and effect. Without limiting the generality of the foregoing, Leasehold Borrower shall default in the performance or observance of any term, covenant or condition of will not reject the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail pursuant to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 Section 365(a) of the termsBankruptcy Code or any successor law, covenants and conditions of or allow the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf deemed rejected by inaction and lapse of Mortgage Borrowertime, and will not elect to the end that the rights of Mortgage Borrower in, to and under treat the Ground Lease shall be kept unimpaired as terminated by the related lessor's rejection of such Ground Lease pursuant to Section 365(h)(1) of the Bankruptcy Code or any successor law, and free from default. If as further security for the landlord under repayment of the indebtedness secured hereby and for the performance of the covenants, agreements, obligations and conditions herein and in the Ground Lease shall deliver contained, Leasehold Borrower hereby assigns to Lender all of its rights, privileges and prerogatives of Leasehold Borrower and Leasehold Borrower's bankruptcy trustee to deal with the Ground Lease, which right may arise as a copy result of the commencement of a proceeding under the federal bankruptcy laws by or against Leasehold Borrower or any written notice of default lessor under the Ground Lease, such notice shall constitute full protection including, without limitation, the right to Lender for any action taken assume or omitted reject, or to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend compel the assumption or renew the term rejection of the Ground Lease upon demand pursuant to Section 365(a) of the Bankruptcy Code or any successor law, the right to seek and obtain extensions of time to assume or reject the Ground Lease, the right to elect whether to treat the Ground Lease as terminated by the lessor's rejection of such Ground Lease or to remain in possession of the Property and offset damages pursuant to Section 365(b)(1) of the Bankruptcy Code or any successor law; and any exercise of such rights, privileges or prerogatives by Leasehold Borrower or Leasehold Borrower's bankruptcy trustee without the prior written consent thereto by Lender made at shall be void and of no force and effect. No release or forbearance of any time within one (1) year prior of Leasehold Borrower's obligations as lessee under the Ground Lease, whether pursuant to the last day upon which Ground Lease or otherwise, shall release Leasehold Borrower from any such option may be exercisedof its obligations under this Security Instrument, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact including, but not limited to, Leasehold Borrower's obligations with respect to exercise any such option the payment of rent as provided for in the name Ground Lease and the observance and performance of all of the covenants, agreements, obligations and upon behalf conditions contained in the Ground Lease to be observed and performed by the lessee thereunder. Unless Lender shall otherwise expressly consent in writing, the fee title to the real property demised by the Ground Lease and the leasehold estate thereunder shall not merge, but shall always remain separate and distinct, notwithstanding the union of such estates either in Leasehold Borrower or in a third party by purchase or otherwise.
(c) Upon the written demand of Lender, Borrower will promptly deliver to Lender a certificate stating that the Ground Lease is in full force and effect, is unmodified, that no notice of termination thereon has been served on Borrower, stating the date to which the net rent has been paid and stating, to the knowledge of Borrower, whether or not there are any defaults thereunder and specifying the nature of such defaults, if any. Borrower shall deliver to Lender such certificate within twenty (20) days after Lender's demand therefor.
(d) Leasehold Borrower will furnish to Lender, upon demand, proof of payment of all items which power of attorney shall be irrevocable and shall be deemed are required to be coupled with an interest. ▇▇▇▇▇▇▇▇paid by Leasehold Borrower pursuant to the Ground Lease.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Ground Lease. Borrower shall, within thirty (a30) With respect to days of the Ground Leasedate hereof, Borrower shall cause Mortgage Borrower to satisfy one of the following requirements:
(i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.▇., as lessor under the Ground Lease (as defined in the Security Documents) (“▇▇▇▇▇▇▇”), to execute an Agreement by and among Borrower, the Bank and ▇▇▇▇▇▇▇ which will provide the Bank with express cure rights and the right to consent to any termination of the Ground Lease; or
(ii) provide the Bank with documentation evidencing the prepayment of all rent due under the Ground Lease for the twelve (12) month period commencing on the date hereof. Within thirty (30) days of each anniversary of this Agreement, if the Borrower has not otherwise satisfied the requirements of this Section 4.12 within the preceding twelve (12) month period, Borrower shall then be required to provide documentation evidencing the prepayment of all rent then due and owing under the Ground Lease for each subsequent twelve (12) month period; or
(iii) exercise the purchase option set forth in the Ground Lease and execute such documentation as the Bank may reasonably require to (A) insure that the Bank’s lien on Borrower’s leasehold interest in that portion of the Property (as defined in the Security Documents) subject to the Ground Lease continues to be a first and best lien on Borrower’s subsequent fee interest in such Property and (B) allows a title company to issue an endorsement to the title policy issued in connection herewith evidencing Borrower’s fee interest in such Property; or
(iv) obtain a partial release of that portion of the Property subject to the Ground Lease from the Bank’s lien by reducing the Facility (as defined in the Note) to seventy-five percent (75%) of As Is appraised value on the remaining Property; or
(v) reduce the Borrowing Base calculated in connection with each Compliance Certificate by the Purchase Option Price (as set forth in the Ground Lease) (the “Borrowing Base Reduction”). In the event that the Borrower elects this option, then Borrower expressly agrees and acknowledges that, upon a default under the Ground Lease by Borrower beyond any applicable notice and cure period, the Bank shall be permitted to advance the Borrowing Base Reduction from the Facility for the purpose of exercising the Purchase Option under the Ground Lease on behalf of Borrower. Borrower shall at such time, execute such documentation as the Bank may reasonably require to (A) insure that the Bank’s lien on Borrower’s leasehold interest in that portion of the Property subject to the Ground Lease continues to be a first and best lien on Borrower’s subsequent fee interest in such Property and (B) allows a title company to issue an endorsement to the title policy issued in connection herewith evidencing Borrower’s fee interest in such Property.
Appears in 1 contract
Sources: Loan Agreement (Phillips Edison - ARC Shopping Center REIT Inc.)
Ground Lease. (a) With respect to the each Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant subject to Section 9.8 of the Mortgage Loan Agreement, 9.10 pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor landlord under any the Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two five (25) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor landlord under any the Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two five (25) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to)not, without the prior written consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination terminate or cancellation of cancel the Ground Lease, (x) Lease or modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect to the Ground Lease, and if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one ninety (190) year days prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of BorrowerBorrower should Borrower fail to do so, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Loan Agreement (RFS Partnership Lp)
Ground Lease. (a) With respect Borrower shall not, without Lender’s written consent, fail to exercise any option or right to renew or extend the term of any Ground Lease in accordance with the terms of the related Ground Lease, and shall give immediate written notice to Lender and shall execute, acknowledge, deliver and record any document requested by Lender to evidence the lien of the related Security Instrument on such extended or renewed lease term; provided, however, Borrower shall cause Mortgage Borrower not be required to (i) except exercise any particular such option or right to renew or extend to the extent reserved Borrower shall have received the prior written consent of Lender (which consent may be withheld by Lender in its sole and absolute discretion) allowing Borrower to forego exercising such option or right to renew or extend and for by Mortgage Lender pursuant to Section 9.8 so long as any Mezzanine Loan is outstanding, the applicable Mezzanine Borrower shall have received the prior written consent of the Mortgage applicable Mezzanine Lender to the extent required under the applicable Mezzanine Loan Agreement. If Borrower shall fail to exercise any such option or right as aforesaid, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, Lender may exercise the option or right as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies agent and attorney-in-fact as provided above in Lender’s own name or in the name of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent on behalf of a nominee of Lender, (w) take any action or fail to take any action which would result as Lender may determine in the surrender exercise of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Leaseits sole and absolute discretion.
(b) With respect to Borrower shall not waive, excuse, condone or in any way release or discharge any Ground Lessor under any Ground Lease of or from such Ground Lessor’s material obligations, covenant and/or conditions under the related Ground Lease without the prior written consent of Lender.
(c) Borrower shall not, without Lender’s prior written consent, surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modify or amend in a material adverse manner, any Ground Lease. Consent to one amendment, if Mortgage Borrower shall default in the performance change, agreement or observance modification of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall not be deemed to be coupled with an interesta waiver of the right to require consent to other, future or successive amendments, changes, agreements or modifications. ▇▇▇▇▇▇▇▇Any acquisition of Ground Lessor’s interest in any Ground Lease by Borrower or any Affiliate of Borrower shall be accomplished by Borrower in such a manner so as to avoid a merger of the interests of lessor and lessee in such Ground Lease, unless consent to such merger is granted by Lender.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Loan Agreement (ESH Hospitality LLC)
Ground Lease. (a) With respect (4) The Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, except as set forth on Schedule XII attached hereto, (ii) there are no existing defaults under the Ground Lease by Mortgage Borrower, or, to Borrower’s knowledge, the lessor thereunder, and, to Borrower’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under the Ground Lease, Borrower shall cause Mortgage Borrower to (iiii) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be due and payable under the Ground Lease have been paid by in full, (iv) neither Mortgage Borrower, as tenant Borrower nor the lessor under and pursuant to the provisions Ground Lease has commenced any action or given or received any notice for the purpose of terminating the Ground Lease, (iiv) diligently perform to Borrower’s knowledge, the lessor under any Ground Lease, as debtor in possession or by a trustee for such lessor, has not given any notice of, and observe all of Mortgage Borrower has not consented to, any attempt to sell or transfer the terms, covenants Ground Lessor Estate free and conditions clear of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, under Section 363(f) (iiior any similar provision) promptly notify Lender of the giving of any written notice by U.S. Bankruptcy Code, and (vi) to Borrower’s knowledge, the lessor under any Ground Lease is not subject to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding of and the lessor under Ground Lessor Estate is not an asset being administered in any Ground Lease voluntary or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such involuntary bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.proceeding;
(b) With respect The Ground Lease permits the interest of the lessee and/or sublessee, as applicable, thereunder to be encumbered by the Mortgages;
(c) The Ground LeaseLease or a memorandum of Ground Lease has been recorded and, if Mortgage Borrower shall default except as indicated in the performance or observance of any termOwner’s Insurance Policy, covenant or condition of Mortgage Borrower’s interest in the Ground Lease is not subject to any Lien (other than the applicable Mortgage); ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇
(d) Except as set forth on the part of Schedule 4.44, Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 ’s interest in the Ground Lease is assignable to Lender, Mezzanine A Lender, Mezzanine B Lender, Mortgage Lender and each of their respective successors and/or assigns, including the trustee of any REMIC Trust, upon notice to, but without the consent of, the lessor thereunder and in the event that it is so assigned, it is further assignable by Lender, Mezzanine A Lender, Mezzanine B Lender, Mezzanine C Lender, Mortgage Lender and each of their respective successors and/or assigns, including the trustee of any REMIC Trust, without the need to obtain the consent of, such lessor;
(e) Except as set forth on Schedule 4.44, the part Ground Lease requires the lessor thereunder to give notice of any default by Mortgage Borrower to Lender provided Mortgage Borrower gives such lessor written notice of Lender’s address, and the Ground Lease further provides that any right of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and lessor under the Ground Lease shall be kept unimpaired and free from default. If the landlord under to terminate the Ground Lease shall deliver not be effectively exercised by Mortgage Borrower or such lessor, as applicable, nor honored by Mortgage Borrower or such lessor, as applicable, unless such right of termination shall be joined in and consented to by Lender;
(f) Except as set forth on Schedule 4.44, Lender a copy is permitted an opportunity (including, where necessary, sufficient time to gain possession of the interest of Borrower under the Ground Lease) to cure any written notice of default under the Ground Lease, such which is curable after the receipt of notice shall constitute full protection of any default before the lessor thereunder may terminate the Ground Lease;
(g) Except as set forth on Schedule 4.44, the Ground Lease has a term (with extensions) which extends not less than twenty (20) years beyond the Maturity Date;
(h) The Ground Lease requires the lessor thereunder to Lender enter into a new lease with any permitted leasehold mortgagee upon termination of the Ground Lease for any action reason, including rejection of the Ground Lease by Mortgage Borrower in a bankruptcy proceeding;
(i) Under the terms of the Ground Lease and the applicable Loan Documents and the Mortgage Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or omitted part of the applicable Ground Leased Property or to be taken by Lenderthe payment of the outstanding principal balance of the Mortgage Loan, the Mezzanine A Loan, the Mezzanine B Loan, the Mezzanine C Loan and the Loan together with any accrued interest thereon in good faiththe manner, in reliance thereon. and subject to the provisions of, the Ground Lease;
(j) The Ground Lease does not impose commercially unreasonable restrictions on subletting; and
(k) Borrower shall cause not permit Mortgage Borrower to exercise each individual optionits purchase option right under the Portsmouth Ground Lease without first satisfying any conditions precedent that may be reasonably imposed by Lender to the exercise of such purchase option (including, if anywithout limitation, to extend or renew the term a date down of the Ground Lease upon demand by Lender made at applicable Owner’s Insurance Policy, together with any time within one (1) year prior endorsements necessary to insure Mortgage Borrower’s ownership of the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in fee portion of the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interestapplicable Property). ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Ground Lease. (a) With respect regards to the Ground Lease, Borrower shall cause Mortgage Borrower to Mortgagor hereby covenants and agrees, for the benefit of Mortgagee and Lenders, as follows:
(ia) The Ground Lease is in full force and effect and has not been modified, amended, or supplemented, except to as set forth and described on Exhibit “B” attached hereto and made a part hereof, and Mortgagor is the extent reserved for by Mortgage Lender pursuant to Section 9.8 owner of the entire lessee's interest in the Ground Lease and has the right and authority under the Ground Lease to execute this Mortgage Loan Agreement, pay all rents, and to encumber Mortgagor’s interest therein; and
(b) All rents (including additional rents and other sums required charges) reserved in the Ground Lease have been paid to be paid by Mortgage Borrower, as tenant the extent they were due and payable to the date hereof; and
(c) There is no existing default (or any event which with the giving of notice or the passage of time would become a default) under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all Lease or in the performance of any of the terms, covenants covenants, conditions, or warranties thereof on the part of Mortgagor, as lessee, to be performed and observed; and
(d) At all times throughout the term of this Mortgage, Mortgagor hereby agrees to fully perform and comply with all agreements, covenants, terms, and conditions imposed upon or assumed by Mortgagor, as lessee, under the Ground Lease, including, without limitation, Mortgagor’s obligations with respect to the payment of rent, prior to the expiration of any applicable notice and/or cure period provided for in the Ground Lease, and if Mortgagor shall not comply as stated, then Mortgagee may (but shall not be obligated to) take any action Mortgagee deems necessary or desirable to prevent or cure any default by Mortgagor in the performance of or compliance with any of the agreements, covenants, terms or conditions imposed upon or assumed by Mortgagor, as lessee under the Ground Lease, including, without limitation, Mortgagor’s obligations with respect to the payment of rent and all amounts so expended by Mortgagee, with interest thereon at the highest Default Rate from the date of each such expenditure, shall be paid by Mortgagor to Mortgagee promptly upon demand by Mortgagee and shall be added to the debt secured by, and shall have the benefit of the lien created by, this Mortgage. Upon the receipt by Mortgagee from the landlord under the Ground Lease of any written notice of default by Mortgagor, as lessee thereunder, Mortgagee may rely on said notice and take any action as aforesaid to cure such default event though the existence of such default or the nature thereof may be questioned or denied by the Mortgagor. The curing by Mortgagee of any default by Mortgagor under the Ground Lease shall not remove or waive, as between Mortgagor and Mortgagee, the default which occurred hereunder by virtue of the default by Mortgagor under the Ground Lease. All sums expended by Mortgagee in order to cure any such default shall be paid by Mortgagor to Mortgagee, upon demand, with interest thereon at the highest Default Rate. All such indebtedness shall be deemed to be secured by this Mortgage. No action or payment taken or made by Mortgagee to prevent or cure a default by Mortgagor under the Ground Lease shall waive or cure the corresponding default under this Mortgage. Mortgagor hereby expressly grants to Mortgagee, and agrees that Mortgagee shall have, the absolute and immediate right to enter in and upon the Leasehold Premises or any part thereof, to such extent and as often as Mortgagee, in its sole and absolute discretion, deems necessary for any such purpose, subject only to applicable legal and regulatory requirements that Mortgagee’s representatives be accompanied by Mortgagor’s representatives in specified areas; and
(e) Mortgagor hereby irrevocably names, constitutes, appoints, ratifies and confirms Mortgagee, as Mortgagor’s attorney-in-fact in Mortgagor’s name, place, and stead, for the express purpose of, exercising any and all rights, privileges, powers and remedies granted to Mortgagor, as lessee under the Ground Lease. This power of attorney shall be binding upon any Person who claims an interest in the Leasehold Premises by or through Mortgagor until this Mortgage is satisfied and discharged of record; and
(f) Mortgagor hereby agrees that, at all times throughout the term of this Mortgage, (a) it shall not surrender its leasehold estate and interest in and to the Leasehold Premises, (b) it shall not terminate or cancel the Ground Lease (including, without limitation, a termination resulting from Mortgagor’s failure to remain in possession of its portion of the Leasehold Premises upon the occurrence of the institution of a proceeding under the Federal Bankruptcy Code, by or against the landlord under the Ground Lease and/or a termination resulting from Mortgagor’s rejection of the Ground Lease on in any proceeding under the part of Mortgage Borrower, as tenant thereunder, (iiiFederal Bankruptcy Code against Mortgagor) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (ivc) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower it shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend any of the terms, conditions or provisions of the Ground Lease without the prior express written consent of Mortgagee. Any such termination, cancellation, modification, change, supplement, alteration, or amendment of the Ground Lease without the prior express written consent thereto by Mortgagee shall be void and of no force or effect. As further security for the repayment of the indebtedness secured by this Mortgage, Mortgagor has delivered to Mortgagee, as of the date hereof, an executed original of the Ground Lease and any and all amendments, supplements, and assignments thereto or thereof, all of which Mortgagor hereby agrees shall be held by Mortgagee until such time as the indebtedness evidenced by the Notes and secured by this Mortgage is paid in full; and
(g) Solely for the benefit of Mortgagee and Lenders (and not for the benefit of any other Person) the Mortgagor hereby agrees that no release or forbearance of any of Mortgagor’s obligations as lessee under the Ground Lease (including their obligations with respect to the payment of rent as provided for in the Ground Lease and the performance of all of the other terms, provisions, covenants, conditions, and agreements contained in the Ground Lease, either orally to be kept, performed and complied with by Mortgagor, as lessee therein) shall discharge Mortgagor from any of its obligations under the Notes or any of the other Loan Documents; and
(h) Mortgagor hereby agrees that there shall be no merger of the Mortgagor’s interest in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
Lease and the leasehold estate and interest created thereunder, with the fee simple estate of the landlord under the Ground Lease by reason of the fact that the same Person may acquire, own or hold, directly or indirectly, all or part of the fee simple estate and the leasehold estate, and no such merger shall occur unless and until Mortgagee (a) shall join in a written instrument effecting such merger and (b) With respect shall duly record the same. If Mortgagor or any of its successors or assigns acquires fee title to the Land, this Mortgage shall automatically constitute and create a lien on such fee title and Mortgagor hereby covenants and agrees to execute any documentation reasonably requested by Mortgagee to evidence such lien; and
(i) Mortgagor shall enforce the obligations of the landlord under the Ground Lease, if Mortgage Borrower Lease to the end that Mortgagor may enjoy all of the rights granted to it under the Ground Lease and shall promptly notify Mortgagee in writing of any default in the performance or and/or observance of any termof the terms, covenant or condition conditions, and/or covenants of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and any party thereto. Mortgagor shall fail to cure further promptly advise Mortgagee in writing of the same prior to the expiration occurrence of any applicable cure period provided thereunder, Lender shall have event of default under the right, but shall be under no obligation, Ground Lease and of the giving of any notice to pay Mortgagor of any sums and to perform default of Mortgagor in the performance and/or observance of any act or take any action as may be appropriate to cause all of the terms, conditions and/or covenants and conditions of the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf by Mortgagor and shall deliver to Mortgagee a true copy of Mortgage Borrower, each such notice immediately upon its receipt of same; and
(j) If any action or proceeding shall be instituted to evict the end that Mortgagor or to recover possession of the rights of Mortgage Borrower in, to and under Leasehold Premises or for any other purpose affecting the Ground Lease shall be kept unimpaired or this Mortgage, Mortgagor shall, within three (3) business days of service thereof on or to Mortgagor, deliver to Mortgagee a true copy of each petition, summons, complaint, notice of motion, order to show cause and free from default. If any and all other provisions, pleadings and papers, however designated, served in any such action or proceeding; and
(k) Mortgagor hereby assigns, transfers, and sets over to Mortgagee, and hereby gives to and confer upon Mortgagee, the right, power, and authority, following the occurrence and during the continuance of an Event of Default, to make any and all elections and/or determinations which Mortgagor now has or at any time may have the right to make with respect to the Ground Lease under or pursuant to the “Bankruptcy Code” (as such term is defined in Paragraph 45(n) below), if the landlord under the Ground Lease is the subject of such bankruptcy proceeding. Mortgagor shall join with Mortgagee and execute and file such documents and instruments as shall be necessary to give effect to any such election or determination made by Mortgagee but will not otherwise act in any manner with respect to any such election or determination without first obtaining Mortgagee’s prior express written consent. Mortgagor shall give prompt written notice to Mortgagee if Mortgagor obtains knowledge of the actual or threatened commencement of any proceedings which may give rise to the right to make any such election or determination and shall deliver to Lender a copy Mortgagee copies of any written notice of default under the Ground Lease, and all papers served in connection therewith. Mortgagee may make any such notice shall constitute full protection to Lender for any action taken election or omitted to be taken by Lenderdetermination as, in good faithits sole discretion, in reliance thereon. Borrower it shall cause Mortgage Borrower determine; and
(l) Mortgagor shall exercise any option or right to exercise each individual option, if any, to renew or extend or renew the term of the Ground Lease upon demand by Lender made at any time within one least eighteen (118) year months prior to the last day upon which date of termination of any such option may be exercisedor right, shall give prompt written notice thereof to Mortgagee, and Borrower hereby expressly authorizes shall execute, deliver and appoints Lender its attorney-in-fact record any documents requested by Mortgagee to evidence the lien of this Mortgagee on such extended or renewed lease term. If Mortgagor fails to exercise any such option or right as required herein, Mortgagee may exercise the option or right as Mortgagor’s agent and attorney-in fact pursuant to this Mortgage, or in Mortgagee’s own name or in the name of and upon on behalf of Borrowera nominee; and
(m) Mortgagor shall not subordinate the Ground Lease or the leasehold created by the Ground Lease to any mortgage or other encumbrance of, which power or lien on, any interest in the real property subject to the Ground Lease without the prior written consent of attorney Mortgagee. Any such subordination without such consent shall, at Mortgagee’s option be void; and
(n) As used herein, “Bankruptcy Code” shall be irrevocable and shall be deemed mean 11 U.S.C. §§ 101 et seq., as modified or recodified from time to be coupled time. Notwithstanding anything to the contrary herein contained herein with an interest. ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇respect to the Ground Lease:
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Ground Lease. (a) With respect Tenant acknowledges that the Premises, the Project, and this Lease are and shall remain subject and subordinate to the Ground Lease and the Development Rights Agreement and to the rights of Ground Lessor thereunder, and to all amendments, restatements, renewals, modifications, assignments, and extensions thereof, without the necessity of any further instrument or act on the part of Tenant; provided, however, that so long as there is no Default hereunder, Tenant’s receipt from Ground Lessor (or any successor or assignee thereof, as appropriate) of a fully executed instrument containing appropriate non-disturbance provisions assuring Tenant’s quiet enjoyment of the Premises as set forth in Section 24 hereof shall be a condition precedent to the subordination of Tenant’s interest and rights hereunder and Tenant’s interest and rights hereunder shall not be disturbed by Ground Lessor. Tenant agrees, at the election of Ground Lessor, to attorn to Ground Lessor. Unless Ground Lessor and Tenant mutually agree upon and execute and deliver a different form of Subordination, Non-Disturbance and Attornment Agreement, Tenant shall, upon demand, execute, acknowledge, and deliver a Subordination, Non-Disturbance and Attornment Agreement substantially in the form attached hereto as Exhibit K (the “Lease Subordination Agreement”) or such other instruments, confirming such subordination and instruments of attornment as shall be reasonably requested by Ground Lessor, provided any such instruments contain the appropriate non-disturbance provisions described above. Tenant acknowledges that, among other things, notwithstanding the terms of this Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 final design and aesthetic of the Mortgage Loan Agreement, pay all rents, additional rents Premises and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground LeaseProject, (ii) diligently perform any Transfer, and observe all of (iii) any financing to be secured by Tenant’s interest in this Lease, may be subject to the terms, covenants and conditions requirements of the Ground Lease on and/or the part Development Rights Agreement and/or to the approval of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground LeaseLessor.
(b) With respect Tenant shall be responsible for, and hereby covenants to the Ground Leasesatisfy in a timely fashion, if Mortgage Borrower shall default in the performance or observance of any termand all obligations, covenant or condition covenants, responsibilities, and/or indemnities binding on Landlord as holder of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and ground lessee’s interest under the Ground Lease shall be kept unimpaired and free from default. If or as a party to the landlord under Development Rights Agreement (collectively, the “Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground LeaseObligations”), such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lenderincluding, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Net Greenhouse Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest▇.▇. ▇▇▇▇▇▇▇▇▇ Ave.▇, RTP/Paradigm Genetics, Inc. – Page 35 without limitation, the payment or reimbursement of all expenses to be paid or reimbursed by Landlord under the Ground Lease (but excluding the payment of the annual rent provided for in the Ground Lease (which shall be governed by the terms and conditions of the Office / Lab Lease)), the payment of the rent provided for in the Development Agreement, and the payment or reimbursement of all expenses to be paid or reimbursed by Landlord under the Development Rights Agreement; provided, however, that the terms and conditions of this Lease shall control to the extent the responsibility for satisfying any Ground Lease Obligation is expressly conferred on Landlord and/or allocated between Landlord and Tenant herein. For illustration purposes only, Sections 13 and 14 hereof allocate between Landlord and Tenant all maintenance and repair obligations with respect to the Premises and the Project and, therefore, such provisions control. If Tenant fails to satisfy, in a timely fashion, any of the Ground Lease Obligations in the manner required hereunder, Landlord shall have the right (but not the obligation) to satisfy the same, and any cost incurred by Landlord in doing so shall be payable to Landlord on demand as Additional Rent or includable by Landlord as an Operating Expense. Further, Tenant shall indemnify, defend, hold, and save Landlord harmless from and against any and all Claims arising out of or in connection with any such failure by Tenant. Conversely, if Tenant gives Landlord Notice requesting Landlord to take affirmative action to enforce any of Landlord’s rights as ground lessee under the Ground Lease or as a party to the Development Rights Agreement or to enforce any obligation, covenant, responsibility, and/or indemnity of Ground Lessor under the Ground Lease and/or the Development Rights Agreement (collectively, the “Ground Lease Rights”) and Landlord elects not to do so, Tenant shall have the right, at Tenant’s sole cost and expense, to take affirmative action to enforce any such Ground Lease Rights, and for such purpose Landlord, effective as of Landlord’s election not to take affirmative action, appoints Tenant attomey-in-fact for Landlord (such power of attorney being coupled with an interest); provided, however, that, notwithstanding the foregoing, the exercise of any Ground Lease Rights that relate to Hazardous Materials (as provided in Section 30(a) hereof) shall be subject to compliance with Section 3 of the Cost Sharing Agreement. Tenant shall indemnify, defend, hold, and save Landlord harmless from and against any and all Claims arising out of or in connection with any affirmative action taken by Tenant to enforce any Ground Lease Rights. Tenant’s rights and obligations under this Section shall terminate and be of no further force or effect as of the expiration or earlier termination of this Lease, provided that all obligations that have arisen and/or become binding hereunder but have not been fully satisfied as of the expiration or earlier termination of this Lease shall survive such expiration or earlier termination.▇▇▇▇▇▇▇▇
(c) Pursuant to the Development Rights Agreement, Ground Lessor is allocating to the Site the additional “Development Rights” (as defined in the Development Rights Agreement) necessary to permit the Greenhouse to be significantly larger than originally planned (as expressly desired by Tenant). Tenant acknowledges that Tenant has been expressly named in the Development Rights Agreement as an “intended third party beneficiary” entitled to enforce Landlord’s remedies against Ground Lessor in the event of a default by Ground Lessor under the Development Rights Agreement. If, at any time prior to the expiration or earlier termination of this Lease, there shall be insufficient Development Rights to permit either the Premises or the Office / Lab to remain, or to be restored to, the size and configuration contemplated in this Lease (a “Development Rights Deficiency”), Tenant’s sole and exclusive remedy at law, in equity, or otherwise shall be to pursue Ground Lessor under the Development Rights Agreement or at law or in equity, except to the extent, and only to the extent, that the Development Rights Deficiency is attributable to the gross negligence or willful misconduct of Landlord (a “Landlord Caused Development Rights Deficiency”). Tenant hereby expressly, absolutely, unconditionally, and irrevocably waives and relinquishes any right Tenant may now have or may hereafter acquire to initiate, institute, maintain, or prosecute any action or proceeding against Landlord for any claims, sums of money, compensation, damages, costs, losses, or expenses, of any type, kind, nature, description, or character, that in any way arise out of, are connected with, or relate to any Development Rights Deficiency other than a Landlord Caused Development Rights Deficiency.
Appears in 1 contract
Ground Lease. (a) With To Landlord’s knowledge, (i) the Leased Premises are free of Hazardous Materials at levels which would be violative of applicable Legal Requirements, and (ii) the Leased Premises are in material compliance with all other applicable Legal Requirements. Landlord has provided Tenant with a copy of a Phase I and environmental baseline survey conducted with respect to the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground LeasePhase I Premises.
(b) With Tenant shall comply, and shall cause any sub-tenants to comply (including Sub- Sublessee), with the Ground Lease and all Legal Requirements with respect to the Ground LeaseLeased Property, if Mortgage Borrower shall default the Tenant-Owned Improvements and the Phase I Premises, and in that connection, Tenant shall:
(i) neither cause nor permit a release or threatened release of Hazardous Materials onto the performance or observance Leased Premises and/or Phase I Premises as a result of any termintentional or unintentional act or omission on the part of Tenant, covenant its employees, agents or condition invitees;
(ii) comply with all Legal Requirements related to Hazardous Materials and with the requirements of the Ground Lease on the part of Mortgage Borrowerregarding Hazardous Materials;
(iii) conduct and complete all investigations, as tenant thereunderstudies, sampling, and shall fail to cure testing, and all remedial, removal, and other actions on, from, or affecting the same prior Leased Property and/or the Phase I Premises in accordance with such Legal Requirements and to the reasonable satisfaction of Landlord;
(iv) upon the expiration or termination of this Sublease, remove, remediate and deliver the Leased Property and the Phase I Premises to Landlord free of all Hazardous Materials, such obligation to survive any expiration or earlier termination of this Sublease;
(v) defend, indemnify, and hold harmless NASA, Landlord, NASA’s and Landlord’s employees and other agents from and against any claims, demands, penalties, fines, liabilities, settlements, damages, costs, or expenses of any applicable cure period provided thereunderkind or nature, Lender shall have known or unknown, contingent or otherwise (including, without limitation, accountants’, engineers’ and attorneys’ fees (including fees for the rightservices of paralegals and similar persons), but shall be under no obligationconsultant fees, investigation and laboratory fees, court costs, and litigation expenses before trial or administrative hearing, at trial or administrative hearing, and all appellate levels), arising out of, or in any way related to pay (a) the presence, disposal, release, or threatened release, by or caused by Tenant, its employees, agents or invitees, of any sums and to perform Hazardous Materials affecting the soil, water, air, vegetation, buildings, improvements personal property, persons, animals or otherwise at Exploration Park, including without limitation the Leased Property and/or the Phase I Premises (any act or take any action as may be appropriate to cause all of the termsforegoing, covenants and conditions “Tenant-Introduced Hazardous Materials”); (b) any personal injury, including wrongful death, or damage to property, real or personal, arising out of or related to Tenant-Introduced Hazardous Materials; (c) any lawsuit brought, threatened, or settled related to Tenant-Introduced Hazardous Materials; and/or (d) any violation of the Ground Lease on or Legal Requirements by Tenant related in any way to Tenant-Introduced Hazardous Materials;
(vi) cooperate, at its own expense, with any program, report or monitoring implemented by NASA or Landlord to ensure compliance with Legal Requirements related to Hazardous Materials, and Tenant shall allow representatives from NASA and/or Landlord access to inspect the part Leased Property, the Tenant-Owned Improvements and the Phase I Premises, with reasonable notice and subject to compliance with Tenant’s safety rules, for purposes of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease ensuring such compliance. Tenant shall be kept unimpaired responsible obtaining, at Tenant’s cost and free from default. If the landlord under the Ground Lease shall deliver expense, any permits relating to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term Tenant’s use of the Ground Lease upon demand by Lender made Leased Property or the environmental condition of the Leased Property during the Term. Tenant shall notify Landlord at any time within one the Name and Address of Landlord for Notices and the NASA-KSC Environmental Program Office (1) year prior to at the last day upon which any such option may be exercisedfollowing address: [NASA KSC Environmental Program Branch, and Borrower hereby expressly authorizes and appoints Lender its attorneyMail Stop: SI-in-fact to exercise any such option in the name of and upon behalf of BorrowerE2, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇ Space Center, FL 32899, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇)] 3 immediately to report (a) the release by Tenant of any Hazardous Materials in violation of the Ground Lease or any Legal Requirements or (b) any activity or event that results in a violation by Tenant of the Ground Lease or any Legal Requirements related to Hazardous Materials, including, without limitation, any environmental permits held by NASA, Landlord or any tenant in Exploration Park. Such notification shall include detailed information regarding the event, and Tenant shall cooperate in providing all additional information requested by Landlord or NASA. Tenant shall be responsible for all costs and expenses related Tenant-Introduced Hazardous Materials at Exploration Park, including without limitation all costs related to the disposal of any Tenant-Introduced Hazardous Materials. Tenant must obtain an EPA ID and dispose of its own hazardous wastes. Tenant may not use NASA’s centralized systems for the handling, treatment, storage and disposal of solid and hazardous wastes.
(c) The Landlord acknowledges that: notwithstanding the fact that contamination of the Phase I Premises may be hereafter discovered on the Phase I Premises, which contamination was not disclosed by the Phase I environmental assessment(s) from time to time performed, the Tenant may still attempt to prove that the Tenant did not cause such contamination and/or that such contamination is not caused by Tenant-Introduced Hazardous Materials; the lack of disclosure by the Phase I assessments shall not be conclusive of the fact that the Tenant did cause such contamination; and the Tenant will not be obligated to cease operations, restore the Leased Property or indemnify the Landlord and NASA or their officers, directors, employees and agents, if Tenant did not cause such contamination.
(d) All indemnification obligations of Tenant under this Section 10 shall survive termination or expiration of this Sublease. 3 NTD: To be updated upon receipt of contact information from Space Florida.
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Sources: Sublease Agreement
Ground Lease. (a) With respect Mortgagor hereby represents and warrants, as of the Effective Date, (i) Mortgagor has delivered a true and correct copy of each Ground Lease to Mortgagee prior to or simultaneously with its execution of this Security Instrument; (ii) the Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, except as specified in [Exhibit [A/B] [and Exhibit [B/C]] attached hereto]; (iii) the Mortgagor enjoys the quiet and peaceful possession of the Ground Leasehold Estate subject only to Permitted Liens; (iv) to the best of Mortgagor's knowledge, there is no material default under the Ground Leasehold by any party thereunder, and no event has occurred which but for the passage of time, or the giving of notice, or both would constitute a material default under the Ground Lease; (v) except to the extent nonpayment would not have a Material Adverse Effect, all rents, additional rents, and other sums due and payable under the Ground Lease have been paid in full except as permitted under the express terms of the Ground Lease, Borrower (vi) to the best of Mortgagor's knowledge, no Person has commenced any action or given or received any notice for the purpose of terminating such Ground Lease, (vii) the consummation of the transactions contemplated hereby will not result in any breach of, or constitute a default under, the Ground Lease, (viii) all actions which must be taken for Mortgagee to have the rights of a leasehold mortgagee or mortgagee pursuant to the Ground Lease have been taken and completed, (ix) the Mortgagor or any Affiliate thereof has not granted any other leasehold mortgage or made any other assignment, pledge or hypothecation of its interest under the Ground Lease; (x) the Ground Lease or a memorandum thereof has been duly recorded; (xi) the Ground Lease permits the interest of the lessee thereunder to be encumbered by the Security Instrument; (xii) the Ground Lease is not subject to any Liens (other than Permitted Liens) superior to, or of equal priority with, the Security Instrument; (xiii) the Ground Lease, either by its express terms or after giving effect to any estoppel and consent agreement, [(v) cannot be cancelled, terminated, surrendered or amended without the prior written consent of Mortgagee, (w) requires Fee Owner to enter into a new lease on similar terms and conditions upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a proceeding under the Bankruptcy Code or any other Creditors Rights Laws; (x) is assignable upon notice to, but without the consent of, the Fee Owner and, in the event that it is so assigned, it is further assignable upon notice to, but without the need to obtain the consent of Fee Owner, (y) provides that notice of termination given under the Ground Lease is not effective against Mortgagee or any Secured Party unless a copy of such notice has been delivered to Mortgagee in the manner described in the Ground Lease and (z) provides that Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the Mortgagor under the Ground Leases) to cure any default under the Ground Lease, which is curable after the receipt of notice of any default, before Fee Owner may terminate the Ground Lease;] (xiv) the Ground Lease has a term which extends [not less than twenty-five (25) years] beyond the date on which no Secured Obligations continue to be outstanding; (xv) under the terms of the Ground Lease, and the applicable Note Documents, taken together, any Net Loss Proceeds will be applied in accordance with the terms of the Indenture; and [(xvi) the Ground Lease does not impose restrictions on subletting.]
(b) Mortgagor hereby covenants and agrees that, so long as the Secured Obligations remain outstanding, it shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreementnonpayment would not have a Material Adverse Effect, pay all rents, additional rents and other sums required to be paid by Mortgage BorrowerM▇▇▇▇▇▇▇▇, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe in all material respects all of the terms, covenants and conditions of the Ground Lease to be performed and observed on the part of Mortgage Borrowersuch Mortgagor, as tenant thereunder, (iii) reasonably promptly notify Lender Mortgagee of the giving of any written notice by the lessor under any Ground Lease Fee Owner to Mortgage Borrower Mortgagor of any material default by Mortgage BorrowerM▇▇▇▇▇▇▇▇, as tenant thereunder, and deliver to Lender Mortgagee a true copy of each such notice within two five (25) Business Days days of Mortgagor's receipt and (iv) reasonably promptly notify Lender Mortgagee of any notice of bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereofFee Owner, and deliver to Lender Mortgagee a true copy of such notice within two notice.
(2c) Business Days In the event of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received any uncured default by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result Mortgagor in the surrender performance of the leasehold estate created by the Ground Lease or the termination or cancellation any of its obligations under the Ground Lease, including, without limitation, any uncured default in the payment of rent and other charges and impositions made payable by the lessee thereunder, then, in the case of an uncured default in the payment of any monetary obligation, [Mortgagee has the right, but not the obligation, without notice, to make payment to cure such default, or, in the case of an uncured default in the performance of any non-monetary obligation, Mortgagee has the right, but not the obligation, to cause the default or defaults to be remedied and otherwise exercise any and all of the rights of the Mortgagor thereunder in the name of and on behalf of the Mortgagor]. Mortgagor shall, on demand, reimburse Mortgagee for all advances made and reasonable expenses incurred by Mortgagee in curing any such default (xincluding, without limitation, reasonable attorneys' fees), together with interest thereon computed at the Default Rate (as hereinafter defined) modifyfrom the date that an advance is made or expense is incurred, change, supplement, alter or amend to and including the Ground Lease, either orally or in writing, or (y) vacate date the premises upon the land underlying the Ground Leasesame is paid.
(bd) With Notwithstanding anything to the contrary contained herein with respect to the Ground Lease, if Mortgage Borrower shall default in :
(i) the performance or observance Lien of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail this Security Instrument attaches to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 Mortgagor's rights and conditions remedies at any time arising under or pursuant to subsection 365(h) of the Ground Lease on Bankruptcy Code, including, without limitation, all of the part of Mortgage Borrower to be performed or observed on behalf of Mortgage BorrowerMortgagor's rights, as debtor, to remain in possession of the end that the rights of Mortgage Borrower in, related Property which is subject to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease;
(ii) The Mortgagor shall not, such notice shall constitute full protection without Mortgagee's written consent, elect to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term treat a Ground Lease as terminated under subsection 365(h)(1) of the Ground Lease upon demand by Lender Bankruptcy Code. Any such election made at any time within one (1) year without Mortgagee's prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney written consent shall be irrevocable void;
(iii) As security for the Secured Obligations, Mortgagor unconditionally assigns, transfers and shall be deemed sets over to be coupled with an interest. Mortgagee for the benefit of the Secured Parties all of M▇▇▇▇▇▇▇▇'s claims and rights to the payment of damages arising from any rejection of the Ground Lease by Fee Owner under the Bankruptcy Code. Mortgagee and Mortgagor shall proceed jointly or in the name of Mortgagor in respect of any claim, suit, action or proceeding relating to the rejection of the Ground 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 Fee Owner 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 Secured Obligations shall have been satisfied and discharged in full. Any amounts received by Mortgagee or Mortgagor as damages arising out of the rejection of the Ground Lease as aforesaid shall be applied to all costs and expenses of Mortgagee (including, without limitation, reasonable attorneys' fees and costs) incurred in connection with the exercise of any of its rights or remedies in accordance with the applicable provisions hereof;
(iv) Upon or anytime after the rejection of the Ground Lease by Fee Owner, pursuant to the Bankruptcy Code, Mortgagor shall not, without the prior written consent of Mortgagee, effect, or seek to cause, any offset of the amount of damages caused by such rejection, as against any rent or other amounts due under such Ground Lease. Mortgagor shall request such consent of Mortgagee in writing prior to seeking any such offset. If Mortgagee has failed to object to any such proposed offset within ten (10) Business Days after receiving notice thereof from the Mortgagor, the Mortgagor may proceed to offset damages only up to the amounts set forth in Mortgagor's notice to Mortgagee;
(v) If any action, proceeding, motion or notice shall be commenced or filed in respect of the Fee Owner of all or any part the Property subject to the Ground Lease in connection with any case under the Bankruptcy Code, Mortgagee and Mortgagor shall cooperatively conduct and control any such litigation with counsel agreed upon between Mortgagor and Mortgagee in connection with such litigation. Mortgagor shall, upon demand, pay to Mortgagee all reasonable costs and expenses (including attorneys' fees and costs) actually paid or actually incurred by Mortgagee or any Secured Party in connection with the cooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be secured by the Lien of this Security Instrument; and
(vi) Mortgagor shall reasonably promptly, after obtaining knowledge of such filing, notify Mortgagee in writing of any filing by or against Fee Owner of a petition under the Bankruptcy Code, such notice setting forth any information available to Mortgagor as to the date of such filing, the court in which such petition was filed, and the relief sought in such filing. Mortgagor shall promptly deliver to Mortgagee any and all notices, summons, pleadings, applications and other documents received by Mortgagor in connection with any such petition and any proceedings relating to such petition.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Ground Lease. (a) With respect to The transaction contemplated by this Agreement is contingent upon Seller obtaining written consent from the Ground Lease, Borrower shall cause Mortgage Borrower to Lessor (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. "▇▇▇▇▇▇▇▇.▇.▇ Owner Consent") to Seller's assignment to Purchaser of Seller's interest, as landlord, under the Ground Lease, including (if required under the Ground Lease) the ▇▇▇▇▇▇▇▇ Owner's acknowledgment that Seller shall be released of all obligations and liabilities of the "tenant" under the Ground Lease effective from and after the date of such assignment. In addition, Seller shall obtain from Ground Lessor a form of estoppel confirming the terms of the Ground Lease and acknowledging that neither Ground Lessor or Seller are in default thereunder (the "Ground Lease Estoppel"). Seller hereby covenants that it shall use best efforts to obtain the ▇▇▇▇▇▇▇▇ Owner Consent and the Ground Lease Estoppel, provided that Seller shall not be required to make any payment to the Ground Lessor as a condition to obtaining the ▇▇▇▇▇▇▇▇ Owner Consent and the Ground Lease Estoppel other than normal review expenses. If Seller does not obtain the ▇▇▇▇▇▇▇▇ Owner Consent and the Ground Lease Estoppel on or before the Due Diligence Approval Date, then this Agreement shall terminate, whereupon the Deposit, together with the net interest earned thereon, shall, without any further instruction required, promptly be returned to Purchaser, this Agreement shall become null and void and neither party shall have any further rights or obligations hereunder (subject, however, to survival of Purchaser's Indemnity and Purchaser's Confidentiality Obligations). If Seller obtains the ▇▇▇▇▇▇▇▇ Owner Consent and the Ground Lease Estoppel on or before the Due Diligence Approval Date, Seller shall deliver a copy of same to Purchaser and the parties shall proceed to close the transaction contemplated hereby pursuant to the terms hereof and, at Closing, Seller and Purchaser shall enter into the Assignment and Assumption of Ground Lease. A copy of the ▇▇▇▇▇▇▇▇ Owner Consent and the Ground Lease Estoppel shall, if obtained, be delivered to Purchaser within two (2) days after Seller's receipt, but in no event later than the Due Diligence Approval Date. Such ▇▇▇▇▇▇▇▇ Owner Consent shall be either unconditional or, if conditional, subject to no condition that is reasonably objectionable to Purchaser and the Ground Lease Estoppel shall contain no material deviations from the terms of the Ground Lease provided to Purchaser. In the event that Seller receives the ▇▇▇▇▇▇▇▇ Owner Consent, but such consent does not contain an acknowledgment that Seller is released of all obligations and liabilities of the "tenant" under the Ground Lease, such consent shall nevertheless be satisfactory if Purchaser agrees to indemnify and hold Seller harmless from Purchaser's failure to perform such obligations and liabilities arising from and after the Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Horizon Group Properties Inc)
Ground Lease. (a) With respect Tenant acknowledges that the Premises, the Project, and this Lease are and shall remain subject and subordinate to the Ground Lease and the Development Rights Agreement and to the rights of Ground Lessor thereunder, and to all amendments, restatements, renewals, modifications, assignments, and extensions thereof, without the necessity of any further instrument or act on the part of Tenant; provided, however, that so long as there is no Default hereunder, Tenant's receipt from Ground Lessor (or any successor or assignee thereof, as appropriate) of a fully executed instrument containing appropriate non-disturbance provisions assuring Tenant's quiet enjoyment of the Premises as set forth in Section 24 hereof shall be a condition precedent to the subordination of Tenant's interest and rights hereunder and Tenant's interest and rights hereunder shall not be disturbed by Ground Lessor. Tenant agrees, at the election of Ground Lessor, to attorn to Ground Lessor. Unless Ground Lessor and Tenant mutually agree upon and execute and deliver a different form of Subordination, Non-Disturbance and Attornment Agreement, Tenant shall, upon demand, execute, acknowledge, and deliver a Subordination, Non-Disturbance and Attornment Agreement substantially in the form attached hereto as Exhibit K (the "LEASE SUBORDINATION AGREEMENT") or such other instruments, confirming such subordination and instruments of attornment as shall be reasonably requested by Ground Lessor, provided any such instruments contain the appropriate non- disturbance provisions described above. Tenant acknowledges that, among other things, notwithstanding the terms of this Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 final design and aesthetic of the Mortgage Loan Agreement, pay all rents, additional rents Premises and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground LeaseProject, (ii) diligently perform any Transfer, and observe all of (iii) any financing to be secured by Tenant's interest in this Lease, may be subject to the terms, covenants and conditions requirements of the Ground Lease on and/or the part Development Rights Agreement and/or to the approval of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground LeaseLessor.
(b) With respect Tenant shall be responsible for, and hereby covenants to the Ground Leasesatisfy in a timely fashion, if Mortgage Borrower shall default in the performance or observance of any termand all obligations, covenant or condition covenants, responsibilities, and/or indemnities binding on Landlord as holder of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and ground lessee's interest under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender or as a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior party to the last day upon which any such option may be exercisedDevelopment Rights Agreement (collectively, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower"GROUND LEASE OBLIGATIONS"), which power of attorney shall be irrevocable and shall be deemed to be coupled with an interestincluding, Net Greenhouse Lease ▇.▇. ▇▇▇▇▇▇▇▇▇ Ave.▇, RTP/Paradigm Genetics, Inc.-Page 35 without limitation, the payment or reimbursement of all expenses to be paid or reimbursed by Landlord under the Ground Lease (but excluding the payment of the annual rent provided for in the Ground Lease (which shall be governed by the terms and conditions of the Office / Lab Lease)), the payment of the rent provided for in the Development Agreement, and the payment or reimbursement of all expenses to be paid or reimbursed by Landlord under the Development Rights Agreement; provided, however, that the terms and conditions of this Lease shall control to the extent the responsibility for satisfying any Ground Lease Obligation is expressly conferred on Landlord and/or allocated between Landlord and Tenant herein. For illustration purposes only, Sections 13 and 14 hereof allocate between Landlord and Tenant all maintenance and repair obligations with respect to the Premises and the Project and, therefore, such provisions control. If Tenant fails to satisfy, in a timely fashion, any of the Ground Lease Obligations in the manner required hereunder, Landlord shall have the right (but not the obligation) to satisfy the same, and any cost incurred by Landlord in doing so shall be payable to Landlord on demand as Additional Rent or includable by Landlord as an Operating Expense. Further, Tenant shall indemnify, defend, hold, and save Landlord harmless from and against any and all Claims arising out of or in connection with any such failure by Tenant. Conversely, if Tenant gives Landlord Notice requesting Landlord to take affirmative action to enforce any of Landlord's rights as ground lessee under the Ground Lease or as a party to the Development Rights Agreement or to enforce any obligation, covenant, responsibility, and/or indemnity of Ground Lessor under the Ground Lease and/or the Development Rights Agreement (collectively, the "GROUND LEASE RIGHTS") and Landlord elects not to do so, Tenant shall have the right, at Tenant's sole cost and expense, to take affirmative action to enforce any such Ground Lease Rights, and for such purpose Landlord, effective as of Landlord's election not to take affirmative action, appoints Tenant attorney-in-fact for Landlord (such power of attorney being coupled with an interest); provided, however, that, notwithstanding the foregoing, the exercise of any Ground Lease Rights that relate to Hazardous Materials (as provided in Section 30(a) hereof) shall be subject to compliance with Section 3 of the Cost Sharing Agreement. Tenant shall indemnify, defend, hold, and save Landlord harmless from and against any and all Claims arising out of or in connection with any affirmative action taken by Tenant to enforce any Ground Lease Rights. Tenant's rights and obligations under this Section shall terminate and be of no further force or effect as of the expiration or earlier termination of this Lease, provided that all obligations that have arisen and/or become binding hereunder but have not been fully satisfied as of the expiration or earlier termination of this Lease shall survive such expiration or earlier termination.▇▇▇▇▇▇▇▇
(c) Pursuant to the Development Rights Agreement, Ground Lessor is allocating to the Site the additional "DEVELOPMENT RIGHTS" (as defined in the Development Rights Agreement) necessary to permit the Greenhouse to be significantly larger than originally planned (as expressly desired by Tenant). Tenant acknowledges that Tenant has been expressly named in the Development Rights Agreement as an "intended third party beneficiary" entitled to enforce Landlord's remedies against Ground Lessor in the event of a default by Ground Lessor under the Development Rights Agreement. If, at any time prior to the expiration or earlier termination of this Lease, there shall be insufficient Development Rights to permit either the Premises or the Office / Lab to remain, or to be restored to, the size and configuration contemplated in this Lease (a "DEVELOPMENT RIGHTS DEFICIENCY"), Tenant's sole and exclusive remedy at law, in equity, or otherwise shall be to pursue Ground Lessor under the Development Rights Agreement or at law or in equity, except to the extent, and only to the extent, that the Development Rights Deficiency is attributable to the gross negligence or willful misconduct of Landlord (a "LANDLORD CAUSED DEVELOPMENT RIGHTS DEFICIENCY"). Tenant hereby expressly, absolutely, unconditionally, and irrevocably waives and relinquishes any right Tenant may now have or may hereafter acquire to initiate, institute, maintain, or prosecute any action or proceeding against Landlord for any claims, sums of money, compensation, damages, costs, losses, or expenses, of any type, kind, nature, description, or character, that in any way arise out of, are connected with, or relate to any Development Rights Deficiency other than a Landlord Caused Development Rights Deficiency.
Appears in 1 contract
Ground Lease. (a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to will: (i) except to pay the extent reserved for rent required by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, Lease as the same becomes due and payable; (ii) diligently promptly perform and observe all of the termsmaterial covenants, covenants agreements, obligations and conditions of required to be performed and observed by Borrower under the Ground Lease on the part of Mortgage BorrowerLease, as tenant and do all things necessary to preserve and keep unimpaired its rights thereunder, ; (iii) promptly notify Lender in writing of the giving commencement of any written notice a proceeding under the federal bankruptcy laws by or against Borrower or, upon Borrower's receipt of notification thereof, the lessor under the Ground Lease; (iv) if any of the indebtedness secured hereby remains unpaid at the time when notice may be given by the lessee under the Ground Lease of the exercise of any right to Mortgage renew or extend the term of the Ground Lease, promptly give notice to the lessor thereunder of the exercise of such right of extension or renewal; (v) in case any proceeds of insurance upon the Property or any part thereof are deposited with any Person other than Lender, promptly notify Lender in writing of the name and address of the Person with whom such proceeds have been deposited and the amount so deposited; (vi) promptly notify Lender in writing of the receipt by Borrower of any notice (other than notices customarily sent on a regular periodic basis) from the lessor under the Ground Lease and of any notice noting or claiming any default by Mortgage BorrowerBorrower in the performance or observance of any of the terms, as tenant thereundercovenants, or conditions on the part of Borrower to be performed or observed under the Ground Lease;
(vii) promptly notify Lender in writing of the receipt by Borrower of any notice from the lessor of any termination of the Ground Lease and deliver to Lender promptly cause a true copy of each such notice within two (2) Business Days of receipt to be delivered to Lender; and (ivviii) promptly notify Lender in writing of any bankruptcyrequest made by either party to the Ground Lease to the other party thereto for arbitration or appraisal proceedings pursuant to the Ground Lease, reorganization or insolvency proceeding and of the lessor under any Ground Lease or institution of any notice thereof, arbitration or appraisal proceedings and promptly deliver to Lender a true copy of the determination of the arbitrators or appraisers in each such notice within two proceeding.
(2b) Business Days Except as set forth in Article 11 of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower the Ground Lease in connection with such bankruptcythe transfer of fee title to the Property to Borrower, reorganization Borrower will not surrender the Ground Lease or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (Borrower's leasehold estate and shall not permit Mortgage Borrower to)interest therein, nor terminate or cancel the Ground Lease; and except as set forth in the Loan Agreement, will not, without the prior written consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate and as further security for the premises upon repayment of the land underlying indebtedness hereby secured and for the performance of the covenants, agreements, obligations and conditions herein and in the Ground Lease.
(b) With respect Lease contained, Borrower hereby assigns to Lender all of its rights, privileges and prerogatives as lessee under the Ground Lease to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease and, except as set forth in the Loan Agreement, any such termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease, if Mortgage without the prior written consent thereto by Lender, shall be void and of no force and effect. Without limiting the generality of the foregoing, Borrower shall default in the performance or observance of any term, covenant or condition of will not reject the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail pursuant to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 Section 365(a) of the termsBankruptcy Code or any successor law, covenants and conditions of or allow the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf deemed rejected by inaction and lapse of Mortgage Borrowertime, and will not elect to the end that the rights of Mortgage Borrower in, to and under treat the Ground Lease shall be kept unimpaired as terminated by the related lessor's rejection of such Ground Lease pursuant to Section 365(h)(1) of the Bankruptcy Code or any successor law, and free from default. If as further security for the landlord under repayment of the indebtedness secured hereby and for the performance of the covenants, agreements, obligations and conditions herein and in the Ground Lease shall deliver contained, Borrower hereby assigns to Lender all of its rights, privileges and prerogatives of Borrower and Borrower's bankruptcy trustee to deal with the Ground Lease, which right may arise as a copy result of the commencement of a proceeding under the federal bankruptcy laws by or against Borrower or any written notice of default lessor under the Ground Lease, such notice shall constitute full protection including, without limitation, the right to Lender for any action taken assume or omitted reject, or to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend compel the assumption or renew the term rejection of the Ground Lease upon demand pursuant to Section 365(a) of the Bankruptcy Code or any successor law, the right to seek and obtain extensions of time to assume or reject the Ground Lease, the right to elect whether to treat the Ground Lease as terminated by the lessor's rejection of such Ground Lease or to remain in possession of the Property and offset damages pursuant to Section 365(b)(1) of the Bankruptcy Code or any successor law; and any exercise of such rights, privileges or prerogatives by Borrower or Borrower's bankruptcy trustee without the prior written consent thereto by Lender made at shall be void and of no force and effect. No release or forbearance of any time within one (1) year prior of Borrower's obligations as lessee under the Ground Lease, whether pursuant to the last day upon which Ground Lease or otherwise, shall release Borrower from any such option may be exercisedof its obligations under this Security Instrument, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact including, but not limited to, Borrower's obligations with respect to exercise any such option the payment of rent as provided for in the name Ground Lease and the observance and performance of all of the covenants, agreements, obligations and upon behalf conditions contained in the Ground Lease to be observed and performed by the lessee thereunder. Unless Lender shall otherwise expressly consent in writing, the fee title to the real property demised by the Ground Lease and the leasehold estate thereunder shall not merge, but shall always remain separate and distinct, notwithstanding the union of such estates either in Borrower or in a third party by purchase or otherwise.
(c) Upon the written demand of Lender, Borrower will promptly deliver to Lender a certificate stating that the Ground Lease is in full force and effect, is unmodified, that no notice of termination thereon has been served on Borrower, stating the date to which the net rent has been paid and stating, to the knowledge of Borrower, whether or not there are any defaults thereunder and specifying the nature of such defaults, if any. Borrower shall deliver to Lender such certificate within twenty (20) days after Lender's demand therefor.
(d) Borrower will furnish to Lender, upon demand, proof of payment of all items which power of attorney shall be irrevocable and shall be deemed are required to be coupled with an interest. ▇▇▇▇▇▇▇▇paid by Borrower pursuant to the Ground Lease.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Ground Lease. Grantor represents, warrants, covenants and agrees as follows:
(a) With respect The Ground Lease is in full force and effect, unmodified by any writing or otherwise, except as indicated herein; (b) All rent, additional rent and/or other charges reserved in or payable under the Ground Lease have been paid to the extent they are payable on or before the date hereof; (c) Grantor enjoys the quiet and peaceful possession of the Leasehold Premises; (d) Grantor is not in default under any of the terms of the Ground Lease and there are no circumstances which, with the passage of time or the giving of notice or both, would constitute a default under the Ground Lease; (e) To the best knowledge of Grantor, Borrower the landlord under the Ground Lease is not in default under any of the terms of the Ground Lease on its part to be observed or performed; (f) Grantor has delivered to the Beneficiary a true, accurate and complete copy of the Ground Lease and all amendments, modifications and supplements thereto; (g) Grantor shall cause Mortgage Borrower promptly and faithfully pay all rent and other sums due and payable under the Ground Lease and shall observe, perform and otherwise comply with all the terms, covenants and provisions of the Ground Lease (including, without limitation, the giving of notice to the landlord under the Ground Lease regarding the nature and existence of the lien of this Deed of Trust and the identity of the Beneficiary) on Grantor's part to be paid, observed, performed and complied with, at periods or within the times to cure provided therein; (h) Grantor shall not do, permit, suffer or refrain from doing anything as a result of which there could be a default under or breach of any of the terms, covenants or provisions of the Ground Lease or which could constitute grounds for termination of the Ground Lease and shall do all things necessary to preserve and keep unimpaired its rights, powers and privileges under the Ground Lease and to prevent any termination of the Ground Lease; (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and Grantor shall not terminate (including a termination pursuant to the express provisions thereof), cancel, surrender (including, without limitation, any election by Grantor not to remain in possession of the property demised by the Ground Lease in case the Ground Lease shall be rejected, terminated or annulled by any trustee appointed for the landlord's assets in debtor relief proceedings), modify, elect any option, including, without limitation, any option not to continue the Ground Lease for a renewal term, amend or in any way alter or permit the alteration of any of the terms, covenants or provisions of the Ground Lease, (ii) diligently perform and observe or suffer to exist any such termination or alteration, without the prior written consent of the Beneficiary, all of such rights being hereby assigned to the termsBeneficiary as further collateral security for the Obligations secured hereby, covenants and conditions any action taken by Grantor in violation of such agreement shall be null and void and of no force or effect whatsoever; (j) Grantor shall not waive, excuse or discharge any of the obligations and agreements of the landlord under the Ground Lease or subordinate or consent to the subordination of the Ground Lease to any mortgage or deed of trust on any party's interest in the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice property demised by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of consent to any notice thereofrestriction, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization covenant or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of agreement affecting the leasehold estate created by the Ground Lease without the prior written consent of the Beneficiary, which consent shall be given only in the reasonable discretion of the Beneficiary, all of such rights being hereby assigned to the Beneficiary as further collateral security for the Obligations secured hereby, so that any action taken by Grantor in violation of such agreement shall be null and void and of no force or effect whatsoever and Grantor shall enforce the termination or cancellation obligations of the landlord under the Ground Lease to the end that Grantor may enjoy all of the rights granted to it under the Ground Lease;
(k) Grantor shall immediately notify the Beneficiary, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect to the Ground Lease, if Mortgage Borrower shall of any default by Grantor in the observance or performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be observed or performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and by Grantor under the Ground Lease shall be kept unimpaired and free from default. If the landlord or of any notice of any such default received by Grantor under the Ground Lease shall deliver to Lender a copy or other notice asserting lack of any written notice of default under compliance with the Ground Lease, or any notice from any party of termination or purported termination thereof, without giving effect to any grace periods or times to cure, and shall promptly deliver to the Beneficiary copies of each such notice shall constitute full protection to Lender for any action taken of default or omitted to be taken notice of termination and all other notices, communications, plans, specifications and other similar instruments received or delivered by Lender, Grantor in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of connection with the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇Lease; and
Appears in 1 contract
Sources: Deed of Trust and Security Agreement (Panda Interfunding Corp)
Ground Lease. (a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground LeaseLease (for the avoidance of doubt, Borrower hereby covenants and agrees that it shall pay 100% of all rents, additional rents and other sums due and payable under the Ground Lease notwithstanding the existence or obligations of any co-tenant thereunder (if any)), (ii) diligently perform and observe observe, in all material respects, all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed and observed, and (iii) promptly notify Lender Agent of the giving receipt of any written notice given by the lessor landlord under any the Ground Lease to Mortgage Borrower with respect to the Ground Lease Put or the Ground Lease ROFR and any notice of any default by Mortgage Borrower in the performance or observance of any of the terms, covenants or conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed, and deliver to Lender Agent a true copy of each such notice within two three (23) Business Days of receipt and (iv) promptly notify Lender Agent of any bankruptcy, reorganization or insolvency proceeding of the lessor landlord under any the Ground Lease or of any notice thereof, and deliver to Lender Agent a true copy of such notice within two three (23) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to)not, without the prior consent of LenderAgent (not to be unreasonably withheld, (w) take any action conditioned or fail to take any action which would result in the delayed), surrender of the leasehold estate created by the Ground Lease or the termination terminate or cancellation of cancel the Ground Lease, (x) Lease or modify, change, supplement, alter or amend the Ground Lease, either orally or in writing. Borrower hereby assigns to Agent, or (y) vacate as further security for the premises upon payment and performance of the land underlying obligations and for the Ground Lease.
(b) With respect to performance and observance of the terms, covenants and conditions of the Mortgage, this Agreement and the other Loan Documents, all of the rights, privileges and prerogatives of Borrower, as tenant under the Ground Lease, if Mortgage to surrender the leasehold estate created by the Ground Lease or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease in any respect, and any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease in any respect without the prior consent of Agent (not to be unreasonably withheld, conditioned or delayed) shall be void and of no force and effect. Furthermore, Borrower shall not elect not to restore the Property pursuant to the terms of the Ground Lease without Agent’s consent. If Borrower shall default in the performance or observance of any material term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunderthereunder (including, without limitation, any obligations under the Ground Lease or the Agreement Concerning Interests with respect to the Ground Lease Put and the Ground Lease ROFR), and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender then, without limiting the generality of the other provisions of the Mortgage, this Agreement and the other Loan Documents, and without waiving or releasing Borrower from any of its obligations hereunder, 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. Notwithstanding the foregoing or anything herein or in the Ground Lease or the Agreement Concerning Interests to the contrary, Borrower shall perform as required by the Ground Lease with respect to the Ground Lease Put on or before the date that is ten (10) days prior to the date the Association (as defined in the Agreement Concerning Interests) may compel Borrower to perform under the Ground Lease Put on the Association’s behalf under the Agreement Concerning Interests. If the landlord under the Ground Lease shall deliver to Lender Agent a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender Agent for any reasonable action taken or omitted to be taken by LenderAgent, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender Agent made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender Agent its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇Borrower will not subordinate or consent to the subordination of the Ground Lease to any mortgage, security deed, lease or other interest on or in the landlord’s interest in all or any part of the Property, unless, in each such case, the written consent (not to be unreasonably withheld, conditioned or delayed) of Agent shall have been first had and obtained.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Loan Agreement (Black Creek Diversified Property Fund Inc.)
Ground Lease. (a) With respect to Borrower will, and will cause Owner to, comply in all material respects with the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants terms and conditions of the Ground Lease on Lease. Borrower will not, and will not permit Owner to, do or permit anything to be done, the part doing of Mortgage Borrowerwhich, as tenant thereunderor refrain from doing anything, (iii) promptly notify Lender the omission of which, will impair or tend to impair the security of the giving of any written notice by the lessor Premises under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation will be grounds for declaring a forfeiture of the Ground Lease. Borrower shall, and shall cause Owner to, promptly send copies of all notices of default which Owner may receive under the Ground Lease to Lender.
(xb) Borrower shall, and shall cause Owner to, enforce the Ground Lease and not terminate, modify, cancel, change, supplement, alter or amend the Ground Lease, either orally or waive, excuse, condone or in writing, any way release or (y) vacate discharge Ground Lessor of or from any of the premises upon the land underlying the material covenants and conditions to be performed or observed by Ground LeaseLessor.
(bc) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but shall be under no not the obligation, to pay perform any sums obligations of Borrower or Owner under the terms of the Ground Lease during the continuance of an Event of Default. All costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) so incurred, shall be treated as an advance secured by this Agreement, shall bear interest thereon at the Default Rate from the date of payment by Lender until paid in full and shall be paid by Borrower to Lender during the continuance of an Event of Default on demand. No performance by Lender of any obligations of Borrower or Owner shall constitute a waiver of any Event of Default arising by reason of Borrower’s or Owner’s failure to perform the same. If Lender shall make any payment or perform any act or take any action as may be appropriate to cause all in accordance with this Section 2.36(c), Lender will notify Borrower of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy making of any written notice such payment, the performance of default under any such act, or the Ground Lease, taking of any such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. action.
(d) Borrower shall cause Mortgage Borrower Owner to exercise each individual option, if any, to extend or renew the term of the Ground Lease not less than thirty (30) days prior to the last day upon which any such option may be exercised (and in all events within five (5) days after demand by Lender made at any time within one (1) year prior to of the last day upon which any such option may be exercised), and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon on behalf of BorrowerOwner to so exercise such option if Borrower fails to cause Owner to exercise as herein required, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇Borrower shall give Lender notice of Owner’s exercise of any such option to extend or renew the term of the Ground Lease within five (5) days of the exercise of any such option.▇
(e) Subject to Mortgage Lender’s rights under the Mortgage Loan, Borrower shall cause Owner to assign, transfer and set over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by the Ground Lessor of the Ground Lease under the Bankruptcy Code. Borrower shall notify Lender promptly (and in any event within ten (10) days) of any claim, suit, action or proceeding relating to the rejection of the Ground Lease. Lender is hereby irrevocably appointed as Borrower’s attorney-in-fact, coupled with an interest, with exclusive power to file and prosecute, to the exclusion of Borrower, any proofs of claim, complaints, motions, applications, notices and other documents, in any case in respect of the Ground Lessor under the Bankruptcy Code during the continuance of an Event of Default. Borrower may make any compromise or settlement in connection with such proceedings (subject to Lender’s reasonable approval); provided, however, that Lender shall be authorized and entitled to compromise or settle any such proceeding if such compromise or settlement is made after the occurrence and during the continuance of an Event of Default. Borrower shall promptly execute and deliver to Lender any and all instruments reasonably required in connection with any such proceeding after request therefor by Lender. Except as set forth above, Borrower shall not, nor permit Owner to, adjust, compromise, settle or enter into any agreement with respect to such proceedings without the prior written consent of Lender, which consent shall not be unreasonably withheld or delayed.▇▇▇▇▇▇▇▇
(f) Borrower shall not permit Owner to, without Lender’s prior written consent, elect to treat the Ground Lease as terminated under Section 365(h)(1) of the Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(g) If pursuant to Section 365(h)(2) of the Bankruptcy Code, Owner seeks to offset against the rent reserved in the Ground Lease the amount of any damages caused by the non- performance by the Ground Lessor of any of the Ground Lessor’s obligations under the Ground Lease after the rejection by the Ground Lessor of the Ground Lease under the Bankruptcy Code, Borrower shall, prior to Owner effecting such offset, notify Lender of its intention to do so, setting forth the amounts proposed to be so offset and the basis therefor. If Lender has failed to object as aforesaid within ten (10) days after notice from Borrower in accordance with the first sentence of this Section 2.35(g), Borrower may permit Owner to proceed to effect such offset in the amounts set forth in Borrower’s notice. Neither Lender’s failure to object as aforesaid nor any objection or other communication between Lender and Borrower relating to such offset shall constitute an approval of any such offset by Lender. Borrower shall indemnify and save Lender harmless from and against any and all claims, demands, actions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever (including, without limitation, reasonable attorneys’ fees and disbursements) arising from or relating to any such offset by Owner against the rent reserved in the Ground Lease.
(h) Borrower shall immediately, after obtaining knowledge thereof, notify Lender of any filing by or against the Ground Lessor of a petition under the Bankruptcy Code. Borrower shall thereafter forthwith give written notice of such filing to Lender, setting forth any information available to Borrower or Owner as to the date of such filing, the court in which such petition was filed, and the relief sought therein. Borrower shall promptly deliver to Lender following receipt any and all notices, summonses, pleadings, applications and other documents received by Borrower or Owner in connection with any such petition and any proceedings relating thereto.
(i) Borrower shall, and shall cause Owner to, perform all other covenants with respect to the Ground Lease as set forth in the Mortgage for so long as any portion of the Debt remains outstanding (regardless of whether the Mortgage Loan remains outstanding).
Appears in 1 contract
Sources: Loan and Security Agreement (Morgans Hotel Group Co.)
Ground Lease. (a) With respect Tenant acknowledges that the Premises, the Project, and this Lease are and shall remain subject and subordinate to the Ground Lease and the Development Rights Agreement and to the rights of Ground Lessor thereunder, and to all amendments, restatements, renewals, modifications, assignments, and extensions thereof, without the necessity of any further instrument or act on the part of Tenant; provided, however, that so long as there is no Default hereunder, Tenant's receipt from Ground Lessor (or any successor or assignee thereof, as appropriate) of a fully executed instrument containing appropriate non-disturbance provisions assuring Tenant's quiet enjoyment of the Premises as set forth in Section 24 hereof shall be a condition precedent to the subordination of Tenant's interest and rights hereunder and Tenant's interest and rights hereunder shall not be disturbed by Ground Lessor. Tenant agrees, at the election of Ground Lessor, to attorn to Ground Lessor. Unless Ground Lessor and Tenant mutually agree upon and execute and deliver a different form of Subordination, Non-Disturbance and Attornment Agreement, Tenant shall, upon demand, execute, acknowledge, and deliver a Subordination, Non-Disturbance and Attornment Agreement substantially in the form attached hereto as Exhibit L (the "LEASE SUBORDINATION AGREEMENT") or such other instruments, confirming such subordination and instruments of attornment as shall be reasonably requested by Ground Lessor, provided any such instruments contain the appropriate non-disturbance provisions described above. Tenant acknowledges that, among other things, notwithstanding the terms of this Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 final design and aesthetic of the Mortgage Loan Agreement, pay all rents, additional rents Premises and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground LeaseProject, (ii) diligently perform any Transfer, (iii) any financing to be secured by Tenant's interest in this Lease, and observe all of (iv) the terms"EXPANSION RIGHT" (as defined in Section 40(a) below), covenants and conditions may be subject to the requirements of the Ground Lease on and/or the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect Development Rights Agreement and/or to the approval of Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇Lessor.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Ground Lease. (a) With Without limitation of the other provisions herein, Ground Lessee makes the following covenants with respect to the Ground Lease, Borrower shall cause Mortgage Borrower to Leases:
(i) except Ground Lessee shall (1) pay (or cause to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay be paid) all rents, additional rents and other sums required to be paid by Mortgage BorrowerGround Lessee, as tenant under and pursuant to the provisions of the Ground LeaseLeases, (ii2) diligently perform and observe (or cause to be performed and observed) all of the terms, covenants and conditions of the Ground Lease Leases on the part of Mortgage BorrowerGround Lessee, as tenant thereunder, (iii3) promptly notify Lender Administrative Agent of the giving of any written notice by the lessor Ground Lessor under any the Ground Lease to Mortgage Borrower Ground Lessee of any event of default (whether or not any applicable notice and cure periods have expired) by Mortgage Borrower, as tenant thereunder, Ground Lessee and deliver to Lender Agent a true copy of each such notice within two (2) Business Days of receipt receipt, and (iv4) promptly notify Lender Administrative Agent of any bankruptcy, reorganization or insolvency proceeding of the lessor Ground Lessor under any the Ground Lease Leases or of any notice thereof, and deliver to Lender Administrative Agent a true copy of such notice within two (2) Business Days of Mortgage Borrower’s Ground Lessee's receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower Ground Lessee in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower .
(ii) Ground Lessee shall not (and shall not permit Mortgage Borrower to)not, without the prior written consent of LenderAdministrative Agent, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease Leases or sublet (unless on terms acceptable to the termination Administrative Agent), terminate or cancellation of cancel the Ground Lease, (x) Leases or modify, change, supplement, alter or amend the Ground LeaseLeases, either orally or in writing, or (y) vacate the premises upon the land underlying the and if Ground Lease.
(b) With respect to the Ground Lease, if Mortgage Borrower Lessee shall default in the performance or observance of any term, covenant or condition of the Ground Lease Leases on the part of Mortgage Borrower, as tenant thereunder, Ground Lessee and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease Leases on the part of Mortgage Borrower Ground Lessee to be performed or observed on behalf of Mortgage BorrowerGround Lessee, to the end that the rights of Mortgage Borrower Ground Lessee in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord Ground Lessor under the Ground Lease Leases shall deliver to Lender Administrative Agent a copy of any written notice of default under the Ground LeaseLeases, such notice shall constitute full protection to Lender Administrative Agent for any action taken or omitted to be taken by LenderAdministrative Agent, in good faith, in reliance thereon. Borrower Ground Lessee shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease Leases upon demand by Lender Administrative Agent made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower Ground Lessee hereby expressly authorizes and appoints Lender Administrative Agent its attorney-in-fact to exercise any such option in the name of and upon on behalf of BorrowerGround Lessee, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Financing Agreement (Wheeler Real Estate Investment Trust, Inc.)
Ground Lease. (a) With respect Tower Company covenants that it shall not commit any act which would result in a default, non-renewal or nonconformance of the Ground Lease. The SLA shall be subject to the continued existence and enforceability of the Ground Lease, Borrower provided, however, any termination or expiration of the Ground Lease which occurs as a result of any default, non-renewal or non-conformance by Tower Company under the terms of the Ground Lease, without the prior written consent of Carrier, shall cause Mortgage Borrower be construed as an event of default under the terms of the SLA.
(b) In the event that the Ground Lease requires the Ground Lessor to (i) except consent to the extent reserved for by Mortgage Lender pursuant to Section 9.8 making of the Mortgage Loan Agreementapplicable SLA, pay all rents, additional rents and other sums required to it shall be paid by Mortgage Borrower, as tenant under and pursuant a condition precedent to the effectiveness of the SLA that Tower Company obtains such consent. The form and content of such consent shall be subject to Carrier's approval, which approval shall not be unreasonably withheld, delayed or conditioned.
(c) In the event that the Ground Lease expires, terminates or is not otherwise renewed, and subject to the terms and provisions of the Ground Lease, Tower Company hereby grants to Carrier the right to purchase the Tower Facilities (iiand any accessories, accessions, attachments, fixtures or other equipment in connection therewith, etc., including without limitation, storage buildings and fences) diligently perform and observe all for the fair market value of the termsTower Facilities (and such accessories, covenants and conditions accessions, attachments, fixtures, equipment, etc.). Such option must be exercised within six (6) months of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy date of such notice within two (2) Business Days of Mortgage Borrower’s receiptexpiration, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Leasenon-renewal.
(bd) With respect Tower Company agrees to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, deliver a non-disturbance and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If attornment agreement with the landlord under the Ground Lease shall deliver to Lender a copy for Carrier's continued possession of any written notice of default the Premises under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew applicable SLA and/or the term assumption and/or assignment of the Ground Lease upon demand by Lender made at any time within one (1) year prior to Carrier in the event that Tower Company elects to terminate the Ground Lease. Carrier acknowledges and agrees that the language provided in paragraph 5 of the Estoppel Certificate attached to the last day upon which any such option may Assignment as Exhibit "E" will be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact sufficient to exercise any such option in comply with the name requirements of and upon behalf this provision. This provision shall not imply that Carrier consents to the expiration or termination of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇the Ground Lease by Tower Company.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Master Build to Suit and Lease Agreement (Tritel Finance Inc)
Ground Lease. (a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except pay (or cause to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay be paid) all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the applicable Ground LeaseLease which payments of amounts due under each Ground Lease shall be made prior to the payment of any other Operating Expenses, (provided, that, Borrower’s obligation to directly pay such amounts shall be suspended during a Cash Trap Event Period for so long as Borrower complies with the terms and provisions of Section 8.7 hereof and sufficient amounts are on deposit therein for such payments under the Ground Lease in full on or prior to the date due), (ii) diligently perform and observe (or cause to be performed and observed) all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed and observed prior to the expiration of any applicable grace period provided therein, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease Lessor to Mortgage Borrower of any default by Mortgage Borrower in the performance or observance of any of the terms, covenants or conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed, and deliver to Lender a true copy of each such written notice within two five (25) Business Days of receipt receipt, and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease Lessor or of any written notice thereof, and deliver to Lender a true copy of such notice within two five (25) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two receipt thereof.
(2b) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to)not, without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination terminate or cancellation of cancel the Ground Lease, (x) Lease or modify, change, supplement, alter or amend the Ground Lease, either orally or in writing. Borrower hereby assigns to Lender, or (y) vacate as further security for the premises upon payment and performance of the land underlying obligations and for the Ground Lease.
(b) With respect to performance and observance of the terms, covenants and conditions of the Security Instrument, this Agreement and the other Loan Documents, all of the rights, privileges and prerogatives of Borrower, as tenant under the Ground Lease, if Mortgage to surrender the leasehold estate created by the Ground Lease or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease in any material respect, and any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease in any material respect without the prior consent of Lender shall be void and of no force and effect.
(c) If Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then, without limiting the generality of the other provisions of the Security Instrument, this Agreement and the other Loan Documents, and without waiving or releasing Borrower from any of its obligations hereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease Lessor shall deliver to Lender a copy of any written notice of default under the Ground Lease, such written notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon written demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and upon the occurrence and during the continuance of an Event of Default or at any time within thirty (30) days prior to the expiration of any period to exercise such option, Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇Borrower will not subordinate or consent to the subordination of the Ground Lease to any mortgage, security deed, lease or other interest on or in the landlord’s interest in all or any part of the Property, unless, in each such case, the written consent of Lender shall have been first had and obtained.▇
(d) Notwithstanding anything contained in the Ground Lease to the contrary, Borrower shall not further sublet any portion of an Individual Property subject to a Ground Lease without the prior written consent of Lender; provided, Lender’s consent shall not be required for any such sublease unless (x) the same would constitute a breach of Article 6, (y) such sublease is a Major Lease or (z) such consent would otherwise be required under Section 4.14 hereof. Each such sublease of an Individual Property subject to a Ground Lease hereafter made shall, if required by the Ground Lease, be approved by the related Ground Lessor, and provide that (i) in the event of the termination of the Ground Lease, the sublease shall not terminate or be terminable by the lessee thereunder; (ii) in the event of any action for the foreclosure of the Security Instrument, the sublease shall not terminate or be terminable by the lessee thereunder by reason of the termination of the Ground Lease unless such lessee is specifically named and joined in any such action and unless a judgment is obtained therein against such lessee; and (iii) in the event that the Ground Lease is terminated as aforesaid, the lessee under the sublease shall attorn to the lessor under the Ground Lease or to the purchaser at the sale of the Property on such foreclosure, as the case may be. In the event that any portion of the Property shall be sublet pursuant to the terms of this subsection, such sublease shall be deemed to be included in the Property.▇▇▇▇▇▇▇▇
Appears in 1 contract
Ground Lease. (a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of If any written notice by the lessor under Tenant Work triggers any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and insurance requirement under the Ground Lease (e.g., work affecting the exterior of the Building or life safety systems), Tenant will comply with any additional or increased insurance requirements of Ground Lessor. THIS ACKNOWLEDGEMENT OF TERM COMMENCEMENT DATE AND TERM EXPIRATION DATE is entered into as of [______], 20[___], with reference to that certain Lease (the “Lease”) dated as of [_____], 2021, by TURNSTONE BIOLOGICS CORP., a Delaware corporation (“Tenant”), in favor of BMR-ATHENA LP, a Delaware limited partnership (“Landlord”). All capitalized terms used herein without definition shall have the meanings ascribed to them in the Lease. ▇▇▇▇▇▇ ▇▇▇▇▇▇ confirms the following, as of the date hereof:
1. Tenant accepted possession of the Premises for use in accordance with the Permitted Use on [_____], 20[__]. Tenant first occupied the Premises for the Permitted Use on [______], 20[__].
2. The Premises are in good order, condition and repair.
3. The Tenant Improvements are Substantially Complete.
4. All conditions of the Lease to be kept unimpaired performed by Landlord as a condition to the full effectiveness of the Lease have been satisfied, and free from defaultLandlord has fulfilled all of its duties in the nature of inducements offered to Tenant to lease the Premises.
5. If In accordance with the landlord under provisions of Article 4 of the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lenderthe Term Commencement Date is [_____], in good faith20[__], in reliance thereon. Borrower shall cause Mortgage Borrower to exercise each individual optionand, if any, to extend or renew unless the term of the Ground Lease upon demand by Lender made at any time within one (1) year is terminated prior to the last day upon which any such option may Term Expiration Date pursuant to its terms, the Term Expiration Date shall be exercised[______], 20[__].
6. The Lease is in full force and effect, and Borrower hereby expressly authorizes the same represents the entire agreement between Landlord and appoints Lender its attorney-in-fact to exercise any such option in Tenant concerning the name Premises[, except [______]].
7. Tenant has no existing defenses against the enforcement of the Lease by Landlord, and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed there exist no offsets or credits against Rent owed or to be coupled with an interest. ▇▇owed by ▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇
8. The obligation to pay Rent is presently in effect and all Rent obligations on the part of Tenant under the Lease commenced to accrue on [_____], 20[__], with Base Rent payable on the dates and amounts set forth in the chart below: [__]/[__]/[__]-[__]/[__]/[__] [ ] $[_______] [monthly][OR][annually] [ ] [ ]
9. The undersigned Tenant has not made any prior assignment, transfer, hypothecation or pledge of the Lease or of the rents thereunder or sublease of the Premises or any portion thereof. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
Appears in 1 contract
Ground Lease. (a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground LeaseLease as and when such rent or other charge is payable, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed and observed prior to the expiration of any applicable grace or cure period therein provided, and (iii) promptly notify Lender of the giving receipt by Borrower of any written notice by the lessor under any Ground Lease Lessor to Mortgage Borrower of any default by Mortgage Borrower in the performance or observance of any of the terms, covenants or conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receiptnotice. Borrower shall not (and shall not permit Mortgage Borrower to)not, without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination terminate or cancellation of cancel the Ground Lease, (x) Lease or modify, change, supplement, alter or amend the Ground Lease, in any respect, either orally or in writing, or (y) vacate and Borrower hereby assigns to Lender, as further security for the premises upon payment and performance of all Secured Indebtedness, all of the land underlying rights, privileges and prerogatives of Borrower, as tenant under the Ground Lease, to surrender the leasehold estate created by the Ground Lease or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease, and any such surrender of such leasehold estate or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease without the prior consent of Lender shall be void and of no force and effect.
(b) With respect to the Ground Lease, if Mortgage If Borrower shall default (irrespective of whether any applicable notice and cure periods in favor of Borrower under the Ground Lease have not expired) in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of this Security Instrument, and shall fail to cure the same prior to the expiration without waiving or releasing Borrower from any of any applicable cure period provided thereunderits obligations hereunder, Lender shall have the rightright upon notice to Borrower, 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 the such Ground Lease on the part of Mortgage Borrower Borrower, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default, even though the existence of such event of default or the nature thereof be questioned or denied by Borrower or by any party on behalf of Borrower. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Borrower of the making of any such payment, the performance of any such act, or the taking of any such action. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. Lender may pay and expend such sums of money as Lender deems necessary for any such purpose and upon so doing shall be subrogated to any and all rights of the Ground Lessor. Borrower hereby agrees to pay to Lender immediately and without demand, all such sums so paid and expended by Lender, together with interest thereon from the day of such payment at the Default Rate. All sums so paid and expended by Lender and the interest thereon shall be secured by the legal operation and effect of the Security Instrument. If the landlord under the Ground Lease Lessor shall deliver to Lender a copy of any written notice of default sent by said Ground Lessor to Borrower, as tenant under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause Mortgage Borrower will not subordinate or consent to exercise each individual option, if any, to extend or renew the term subordination of the Ground Lease upon demand to any mortgage, deed of trust, security deed, lease or other interest on or in the Ground Lessor’s interest in all or any part of the Property, unless, in each such case, the written consent of Lender shall have been first had and obtained. Each Lease hereafter made and each renewal of any existing Lease shall provide that, (a) in the event of the termination of the Ground Lease, the Lease shall not terminate or be terminated by Lender made at the tenant; and (b) in the event of any time within one (1) year prior to action for the last day upon which foreclosure of the Security Instrument, the Lease shall not terminate or be terminable by the subtenant by reason of the termination of the Ground Lease unless the tenant is specifically named and joined in any such option may be exercised, action and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in unless a judgment is obtained therein against the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. ▇▇▇▇▇▇▇▇tenant.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Leasehold Deed of Trust, Security Agreement and Fixture Filing (Taubman Centers Inc)
Ground Lease. Borrower will fully and faithfully comply at all times with each of the following covenants:
(a) With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, Borrower shall timely pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant it under and pursuant to the provisions of the Ground Lease, (ii) Borrower will diligently perform perform, observe and observe comply with all of the other terms, covenants covenants, conditions, promises, duties, liabilities, obligations and conditions provisions (other than those of a de minimis nature) of the Ground Lease on the part of Mortgage Borrower, as tenant thereunderLease, (iii) Borrower shall promptly notify Lender of the giving Agent in writing of any written notice by event of default under the lessor under any Ground Lease actually known to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver shall send to Lender Agent a true copy of each such any notice of default served on Borrower relating to the Ground Lease within two five (25) Business Days of receipt and receipt; provided that if Agent is copied on any such notice, Borrower shall be deemed to have notified Agent of such default notice, (iv) Borrower shall promptly notify Lender Agent upon obtaining knowledge thereof of any bankruptcy, reorganization or insolvency proceeding of under the lessor under any Ground Lease or of any notice thereof, and deliver to Lender Agent a true copy of such notice within two 45 US_ACTIVE\123288794\V-8 five (25) Business Days of Mortgage Borrower▇▇▇▇▇▇▇▇’s receiptreceipt thereof, together with copies in each case of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two five (25) Business Days after receipt. receipt thereof, and (v) Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination terminate or cancellation of cancel the Ground LeaseLease without first obtaining the prior written consent of Agent, (x) modify, change, supplement, alter which consent may be withheld or amend the Ground Lease, either orally or given in writing, or (y) vacate the premises upon the land underlying the Ground LeaseAgent's sole and absolute discretion.
(b) With respect Borrower shall give Agent duplicates of all written notices, reports, statements and the like which it is obligated or elects to give under the Ground Lease or which it receives under the Ground Lease. Whenever in the Ground Lease Borrower shall have the right to request any information, statements, documents, canceled receipts or anything else whatsoever, Agent shall have the right to request the same from Borrower hereunder, and such information, statements, documents, canceled receipts and other requested material shall thereafter be given to Agent as if Mortgage Agent had requested the same.
(c) If Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part (other than those defaults of Mortgage Borrowera de minimis nature), as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender Agent and any Person designated by it shall have the right, upon ten (10) Business Days’ prior notice to Borrower (unless Agent has reasonably determined that the failure to cure imminently could result in a termination of the Ground Lease or a Material Adverse Effect, in which case, no prior notice shall be required) 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 (other than those of a de minimis nature) of the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the landlord under the Ground Lease Borrower shall deliver to Lender Agent a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender Agent for any action taken or omitted to be taken by LenderAgent, in good faith, in reliance thereon. Any and all out-of-pocket costs and expenses (including, but not limited to, reasonable legal fees and disbursements of outside counsel) actually incurred by Agent in connection with any such actions beyond all applicable notice and cure periods to Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of under the Ground Lease upon will be due and payable by Borrower within ten (10) Business Days after written demand by Lender made Agent and will bear interest at any the Default Rate, from the date of the demand until repaid.
(d) In the event that Agent determines from time within to time in good faith, but in no event more than one (1) time in any calendar year prior or otherwise during the continuance of a Default or an Event of Default, that receipt of an estoppel certificate relating to the last day Ground Lease executed by Borrower is necessary or appropriate, then upon which Agent’s written request, Borrower will use commercially reasonable efforts to deliver to Agent an estoppel certificate relating to the Ground Lease in form and substance in accordance with the terms of the Ground Lease.
(e) Agent shall have the right to appear in (during the continuance of a Default or an Event of Default) and, at all times, participate in all proceedings, including any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrowerarbitration proceedings, which power of attorney shall would reasonably be irrevocable and shall be deemed expected to be coupled with an interest. have a Material Adverse Effect on Agent’s security or ▇▇▇▇▇▇▇▇’s interest in the leased premises under the Ground Lease. Borrower shall pay within ten (10) Business Days after written demand by Agent all reasonable out-of-pocket costs and expenses of Agent (including, but not limited to, reasonable legal fees of outside counsel and disbursements) incurred in any such proceedings.▇
(f) Within thirty (30) days after Agent’s reasonable request, Borrower will submit reasonably satisfactory evidence of payment of all of its monetary obligations to under the Ground Lease. US_ACTIVE\123288794\V-8
(g) Borrower shall not, without Agent’s prior written consent, elect to treat the Ground Lease as terminated under Subsection 365(h)(1)(A)(1) of the Bankruptcy Code. Any such election made without Agent’s consent shall be void.
(h) Borrower hereby unconditionally assigns, transfers and sets over to Agent all of ▇▇▇▇▇▇▇▇’s claims and rights to the payment of damages arising from any rejection of the Ground Lease by any owner of the Fee Estate under the Bankruptcy Code. Agent shall have the right to proceed in its own name or in the name of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of the Ground Lease, including, without limitation, the right to file and prosecute, to the exclusion of Borrower, any proofs of claim, complaints, motions, applications, notices and other documents, in any case in respect to any owner of the Fee Estate under the Bankruptcy Code; provided, however, that so long as no Event of Default shall have occurred and be continuing, Agent shall consult with Borrower prior to filing, prosecuting and settling any such proof of claim, complaint, motion, application, notice or other document in any such case. The foregoing 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 secured by the Mortgage and the other Loan Documents shall have been satisfied and discharged in full. Any amounts received by Agent as damages arising out of the rejection of the Ground Lease as aforesaid shall be applied first to all reasonable and actual out-of-pocket costs and expenses of Agent (including, without limitation, reasonable attorneys’ fees) incurred in connection with the exercise of any of its rights or remedies under this Section 8.18. Borrower shall promptly make, execute, acknowledge and deliver, in form and substance reasonably satisfactory to Agent all such instruments, agreements and other documents, as may at any time hereafter be reasonably required by Agent to effectuate and carry out the assignment made pursuant to this Section 8.18
Appears in 1 contract
Sources: Term Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)