Ground Lease. (a) Ground Lessee and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear of the Ground Lease 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, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise. (b) 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 Lessee, 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 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 Ground Lease and the Property shall be subject to all of the provisions of Section 5.01. (e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless of whether such 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 the Property. (f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to 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) Borrower will, and will cause Owner to, comply in all material respects with the terms and conditions of any Ground Lessee Lease. Borrower will not, and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property will not permit Owner to, do or permit anything to be sold free and clear 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 Leases or will be grounds for declaring a forfeiture of any 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 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, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwiseLender.
(b) Except as specified in Section 11.02Borrower shall, and shall cause Owner to, enforce the Ground Leases and not terminate, modify, cancel, change, supplement, alter or amend any Ground Lease, or waive, excuse, condone or in any action commenced to enforce the Obligations created way release or arising under this Instrument, discharge any resulting judgment Ground Lessor of 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 from 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 Lessee, 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 material covenants and conditions to be a lien on any other asset of performed or observed by such Ground Lessee other than the Property or other property subject to any security interest securing the NoteLessor.
(c) Lender shall have the right, but not the obligation, to perform any obligations of Borrower or Owner under the terms of any Ground Lessee 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 each agree that neither this Instrument nor to Lender during the continuance of an Event of Default on demand. No performance by Lender of any obligation obligations 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 Owner shall constitute a waiver of right any Event of Default arising by reason of Borrower’s or remedy as Owner’s failure to Ground Lesseeperform the same. If Lender shall make any payment or perform any act or take action in accordance with this Section 2.36(c), BorrowerLender will notify Borrower of the making of any such payment, the performance of any such act, or the taking of any other party, or any other act or thing which, but for this provision, would so release, impair, or subordinatesuch action.
(d) Ground Lessee and Ground Lessee’s interest in Borrower shall cause Owner to exercise each individual option, if any, to extend or renew the term of 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 of the Property 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 on behalf of Owner to so exercise such option if Borrower fails to cause Owner to exercise as herein required, which power of attorney shall be subject irrevocable and shall be deemed to all 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 provisions exercise of Section 5.01any such option.
(e) Under no circumstances 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 or all of Borrower’s claims and rights to the payment of damages arising from any of its successors or assigns have rejection by any obligation or liability Ground Lessor of any kind or nature based upon or arising 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, regardless of whether such obligation or liability (i) is an obligation or liability of either ground lessee or ground lessor . Subject to Mortgage Lender’s rights under the Ground LeaseMortgage Loan, or (ii) arises either before or after Intermediate Mez Lender’s rights under the Intermediate Mez Loan and Senior Mez Lender’s rights under the Senior Mez Loan, the Lender acquired title is hereby irrevocably appointed as Borrower’s attorney-in-fact, coupled with an interest, with exclusive power to file and prosecute, to the Propertyexclusion 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 Lessee and Borrower each hereby acknowledge and agree that all 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 LesseeLease 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 rights notice. Neither Lender’s failure to object as aforesaid nor any objection or other communication between Lender and remedies under 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, including without limitation after obtaining knowledge thereof, notify Lender of any rights filing by or against any Ground Lessor of first refusal 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 purchase rightsand all notices, are subject 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 and subordinate to this Instrumentany 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. 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 (a) Ground Lessee if not then due and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property payable), and all accrued and unpaid interest thereon, to be sold free due and clear of the Ground Lease at foreclosure sale. Ground Lessee payable immediately, and Borrower hereby jointly and severally waive upon any right, arising at law or in equity, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise.
(b) 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 11.01such declaration, (i) all accrued and unpaid interest due under the Note, (ii) the outstanding principal of the Note, (iii) any execution prepayment premium due under the Note, if any, and (iv) any and all other charges required to be paid by Borrower pursuant to any provision of this Mortgage, the 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 Mortgaged Property, and each and every part thereof, and is hereby given a right and license and appointed Borrower’s 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 all rights and powers of Borrower with respect thereto either in the name of Borrower or otherwise as it shall deem best; and 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, Lender may collect the rents payable under all Leases directly from the lessees thereunder upon notice to each such lessee that an Event of Default exists under this Mortgage accompanied by a demand on such judgment or decreelessee for the payment to Lender of all rents due and to become due under its Lease, with respect and Borrower, for the benefit of Lender and each such lessee, hereby covenants and agrees that the lessee shall be under no duty to question the accuracy of Lender’s statement of default and shall unequivocally be authorized to pay said rents to Lender without regard to the assets truth of Ground LesseeLender’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 be limited apply the moneys arising as aforesaid, first, to the Property or other property subject payment of (i) any and all charges required to be paid by Borrower pursuant to any security 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 securing due under the Note, and (iiiv) Ground Lessee shall not be personally liable for the payment outstanding principal of the indebtedness Note, when and as the same shall become payable; and
III. Lender may, either with or other Obligations secured 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 InstrumentMortgage, nor shall execution on any judgment or decree resulting from any action to enforce sell the Obligations be or be caused to be a lien on any other asset of Ground Lessee other than the Mortgaged Property or other property subject any part thereof pursuant to any security interest securing procedures provided by applicable law, including, without limitation, the Noteprocedures 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.
(c) Ground Lessee IV. Notwithstanding and Borrower each agree that neither this Instrument nor any obligation of Ground Lessee and Borrower hereunder will be released, impaired or subordinated by any amendment in addition 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 Ground Lease and the Property shall be subject to all of the provisions of Section 5.01.III hereinabove set forth, Lender, with or without entry personally or by its agents or attorneys, insofar as applicable, may:
(e1) Under no circumstances shall Lender institute proceedings for the complete or any partial foreclosure of this Mortgage; or
(2) take such steps to protect and enforce its successors rights whether by action, suit or assigns have any obligation proceeding in equity or liability at law for the specific performance of any kind covenant, condition or nature based upon agreement in the Note or arising under the Ground Lease, regardless of whether such obligation or liability (i) is an obligation or liability of either ground lessee or ground lessor under the Ground Leasein this Mortgage, or (ii) arises either before or after Lender acquired title to the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all in aid of the Ground Lessee’s rights and remedies execution of any power granted in this Mortgage, or for any foreclosure under this Mortgage, or for the Ground Lease, including without limitation enforcement of any rights of first refusal other appropriate legal or any purchase rights, are subject to and subordinate to this Instrumentequitable 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) Ground Lessee and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear of the Ground Lease 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, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise.
(b) 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 Lessee, 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 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 Ground Lease and the Property shall be subject to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless of whether such 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 the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to 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) Ground Lessee Borrower shall:
(i) pay all rents, additional rents and other sums required to be paid by Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting (if any), as tenant under and pursuant to the Lender provisions of the Ground Lease, as and when such lien as would cause rent or other charge is payable,
(ii) diligently perform and observe all of the fee simple title to the Property to be sold free terms, covenants and clear conditions of the Ground Lease 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, on the part of Borrower, or anyone holding or claiming under or through themas tenant thereunder, to have their separate estates sold separately upon foreclosurebe performed and observed, whether 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 principles the Ground Lease to Borrower of marshalling any default by Borrower in the performance or otherwiseobservance 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.
(b) Except as specified in Section 11.02Borrower shall not, in any action commenced to enforce without the Obligations created or arising under this Instrument, any resulting judgment or decree shall be enforceable against Ground Lessee only to the extent prior consent of Ground Lessee’s interest in the Property or other property subject to any security interest securing the Note. Subject to Section 11.01Lender, (i) any execution on such judgment or decree, with respect to surrender the assets of Ground Lessee, 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 leasehold estate created 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 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 Ground Lease and the Property shall be subject to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless of whether such obligation (ii) terminate or liability cancel the Ground Lease, (iiii) is an obligation modify, change, supplement, alter or liability of either ground lessee or ground lessor under amend in any material respect the Ground Lease, or (iiiv) arises waive any rights under the Ground Lease, either before orally or in writing. Borrower hereby assigns to 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 rights under 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, amendment of or waiver of rights under 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 material term, covenant or condition of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed, 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, 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 Borrower, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Borrower, to the end that the rights of 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 acquired title 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 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 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.
(fe) Ground Lessee and Borrower each hereby acknowledge and agree that all Unless Lender shall otherwise expressly consent in writing, there shall be no merger of the Ground LesseeLease, 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 remedies 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, including without limitation any rights as adjusted by the effect of first refusal or any purchase rightsSection 365 of the Bankruptcy Code, are shall then be part of the Property and shall be subject to the Liens created by this Agreement, the Mortgage and subordinate 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 this Instrumentreject 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) Mortgagor shall (i) pay, or cause to be paid, all rents, additional rents and other sums required to be paid by Mortgagor to Fee Owner under the Ground Lessee Lease, as tenant under and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting pursuant to the Lender such lien as would provisions of the Ground Lease, (ii) diligently perform and observe, or cause the fee simple title to the Property to be sold free performed and clear observed, in all material respects, the terms, covenants and conditions of the Ground Lease at foreclosure sale. on the part of Mortgagor, as tenant thereunder, (iii) promptly notify Mortgagee of the giving of any notice by Fee Owner under the Ground Lessee Lease to Mortgagor of any default by Mortgagor, as tenant thereunder, and Borrower hereby jointly deliver to Mortgagee a true copy of each such notice within five (5) Business Days of receipt and severally waive (iv) promptly notify Mortgagee of any rightbankruptcy, arising at law reorganization or in equityinsolvency of Fee Owner or of any notice thereof, whether presently existing or subsequently accruing, whether and deliver to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles Mortgagee a true copy of marshalling or otherwisesuch notice within five (5) Business Days of Mortgagor’s receipt.
(b) Except Mortgagor shall not, without the prior consent of Mortgagee, surrender the Leasehold Estate created by the Ground Lease or terminate or cancel the Ground Lease or, except as specified may be expressly permitted pursuant to Section 6.11 of the Credit Agreement, modify, change, supplement, alter or amend the Ground Lease, either orally or in Section 11.02writing and if Mortgagor shall default in the performance or observance of any term, in covenant or condition of the Ground Lease on the part of Mortgagor, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Mortgagee shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action commenced as may be appropriate to enforce cause all of the Obligations created terms, covenants and conditions of the Ground Lease on the part of Mortgagor to be performed or arising observed on behalf of Mortgagor, to the end that the rights of Mortgagor in, to and under this Instrument, any resulting judgment or decree the Ground Lease 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 Lessee, shall be limited to the Property or other property subject to any security interest securing the Note, kept unimpaired 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 free 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 Notedefault.
(c) Ground Lessee and Borrower each agree that neither this Instrument nor any obligation of Ground Lessee and Borrower hereunder will be released, impaired or subordinated by any amendment If Fee Owner shall deliver 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 Ground Lease and the Property shall be subject to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability Mortgagee a copy of any kind or nature based upon or arising notice of default under the Ground Lease, regardless of whether such obligation notice shall constitute full protection to Mortgagee for any action taken or liability (i) is an obligation or liability of either ground lessee or ground lessor under the Ground Leaseomitted to be taken by Mortgagee, or (ii) arises either before or after Lender acquired title to the Propertyin good faith, in reliance thereon.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 2 contracts
Sources: Credit Agreement (Cig Wireless Corp.), Credit Agreement (Cig Wireless Corp.)
Ground Lease. (a) Ground Lessee Borrower will, and Borrower have executed this Instrument mortgaging their separate estates will cause Owner to, comply in all material respects with the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property to be sold free terms and clear conditions of the Ground Lease at foreclosure saleLease. Ground Lessee Borrower will not, and Borrower hereby jointly and severally waive any rightwill not permit Owner to, arising at law do or in equitypermit anything to be done, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrowerthe doing of which, or anyone holding refrain from doing anything, the omission of which, will impair or claiming tend to impair the security of the Premises under the Ground Lease or through themwill 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 have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwiseLender.
(b) Except as specified in Section 11.02Borrower shall, and shall cause Owner to, enforce the Ground Lease and not terminate, modify, cancel, change, supplement, alter or amend the Ground Lease, or waive, excuse, condone or in any action commenced to enforce the Obligations created way release or arising under this Instrument, discharge Ground Lessor of or from 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 Lessee, 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 material covenants and conditions to be a lien on any other asset of performed or observed by Ground Lessee other than the Property or other property subject to any security interest securing the NoteLessor.
(c) Lender shall have the right, but not the obligation, to perform any obligations of Borrower or Owner under the terms of the Ground Lessee 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 each agree that neither this Instrument nor to Lender during the continuance of an Event of Default on demand. No performance by Lender of any obligation obligations 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 Owner shall constitute a waiver of right any Event of Default arising by reason of Borrower’s or remedy as Owner’s failure to Ground Lesseeperform the same. If Lender shall make any payment or perform any act or take action in accordance with this Section 2.36(c), BorrowerLender will notify Borrower of the making of any such payment, the performance of any such act, or the taking of any other party, or any other act or thing which, but for this provision, would so release, impair, or subordinatesuch action.
(d) Ground Lessee and Ground Lessee’s interest in Borrower shall cause 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 of the Property 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 on behalf of Owner to so exercise such option if Borrower fails to cause Owner to exercise as herein required, which power of attorney shall be subject irrevocable and shall be deemed to all 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 provisions Ground Lease within five (5) days of Section 5.01the exercise of any such option.
(e) Under no circumstances Subject to Mortgage Lender’s rights under the Mortgage Loan, Borrower shall cause Owner to assign, transfer and set over to Lender or all of Borrower’s claims and rights to the payment of damages arising from any rejection by the Ground Lessor of its successors or assigns have the Ground Lease under the Bankruptcy Code. Borrower shall notify Lender promptly (and in any obligation or liability event within ten (10) days) of any kind claim, suit, action or nature based upon or arising under proceeding relating to the rejection of the Ground Lease. Lender is hereby irrevocably appointed as Borrower’s attorney-in-fact, regardless coupled with an interest, with exclusive power to file and prosecute, to the exclusion of whether such obligation or liability (i) is an obligation or liability Borrower, any proofs of either ground lessee or ground lessor claim, complaints, motions, applications, notices and other documents, in any case in respect of the Ground Lessor under the Ground LeaseBankruptcy 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 (ii) arises either before 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 acquired title 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 Propertyprior 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 Lessee and Borrower each hereby acknowledge and agree that all 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 LesseeLessor’s rights and remedies 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, including without limitation after obtaining knowledge thereof, notify Lender of any rights filing by or against the Ground Lessor of first refusal 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 purchase rightsand all notices, are subject 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 and subordinate to this Instrumentthe 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) Ground Lessee and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property shall not, without Lender’s written consent, not to be sold free and clear unreasonably withheld, conditioned or delayed, fail to timely exercise any option or right to renew or extend the term of the Ground Lease at foreclosure saleLease, 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 Mortgage on such extended or renewed lease term; provided, 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. Ground Lessee 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 Borrower hereby jointly and severally waive any right, arising at law attorney-in-fact as provided above in Lender’s own name or in equitythe name of and on behalf of a nominee of Lender, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles as Lender may determine in the exercise of marshalling or otherwiseits sole and absolute discretion.
(b) Except as specified in Section 11.02Borrower shall not waive, excuse, condone or in any action commenced to enforce way release or discharge the Obligations created Ground Lessor under the Ground Lease of or arising from Ground Lessor’s material obligations, covenant and/or conditions under this Instrumentthe Ground Lease without the prior written consent of Lender, 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 Lessee, 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 unreasonably withheld, conditioned or other property subject to any security interest securing the Notedelayed.
(c) Borrower shall not, without Lender’s prior written consent, not to be unreasonably withheld, conditioned or delayed, surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modify or amend the Ground Lessee and Borrower each agree that neither this Instrument nor any obligation Lease, other than an expiration of the Ground Lease pursuant to its terms. Consent to one amendment, 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 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 LesseeLessor’s interest in the Ground Lease and the Property by Borrower or any Affiliate of Borrower shall be subject accomplished by Borrower in such a manner so as to all avoid a merger of the provisions interests of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the lessor and lessee in such Ground Lease, regardless of whether unless consent to such obligation or liability (i) merger 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 the Propertygranted by Lender.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement (Vici Properties Inc.)
Ground Lease. (a) Borrower will, and will cause Owner to, comply in all material respects with the terms and conditions of any Ground Lessee Lease. Borrower will not, and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property will not permit Owner to, do or permit anything to be sold free and clear 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 Leases or will be grounds for declaring a forfeiture of any 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 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, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwiseLender.
(b) Except as specified in Section 11.02Borrower shall, and shall cause Owner to, enforce the Ground Leases and not terminate, modify, cancel, change, supplement, alter or amend any Ground Lease, or waive, excuse, condone or in any action commenced to enforce the Obligations created way release or arising under this Instrument, discharge any resulting judgment Ground Lessor of 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 from 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 Lessee, 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 material covenants and conditions to be a lien on any other asset of performed or observed by such Ground Lessee other than the Property or other property subject to any security interest securing the NoteLessor.
(c) Lender shall have the right, but not the obligation, to perform any obligations of Borrower or Owner under the terms of any Ground Lessee 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 each agree that neither this Instrument nor to Lender during the continuance of an Event of Default on demand. No performance by Lender of any obligation obligations 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 Owner shall constitute a waiver of right any Event of Default arising by reason of Borrower’s or remedy as Owner’s failure to Ground Lesseeperform the same. If Lender shall make any payment or perform any act or take action in accordance with this Section 2.36(c), BorrowerLender will notify Borrower of the making of any such payment, the performance of any such act, or the taking of any other party, or any other act or thing which, but for this provision, would so release, impair, or subordinatesuch action.
(d) Ground Lessee and Ground Lessee’s interest in Borrower shall cause Owner to exercise each individual option, if any, to extend or renew the term of 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 of the Property 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 on behalf of Owner to so exercise such option if Borrower fails to cause Owner to exercise as herein required, which power of attorney shall be subject irrevocable and shall be deemed to all 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 provisions exercise of Section 5.01any such option.
(e) Under no circumstances 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 or all of Borrower’s claims and rights to the payment of damages arising from any of its successors or assigns have rejection by any obligation or liability Ground Lessor of any kind or nature based upon or arising 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, regardless of whether such obligation or liability (i) is an obligation or liability of either ground lessee or ground lessor . Subject to Mortgage Lender’s rights under the Ground LeaseMortgage Loan and Senior Mez Lender’s rights under the Senior Mez Loan, or (ii) arises either before or after the Lender acquired title is hereby irrevocably appointed as Borrower’s attorney-in-fact, coupled with an interest, with exclusive power to file and prosecute, to the Propertyexclusion 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 Lessee and Borrower each hereby acknowledge and agree that all 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 LesseeLease 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 rights notice. Neither Lender’s failure to object as aforesaid nor any objection or other communication between Lender and remedies under 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, including without limitation after obtaining knowledge thereof, notify Lender of any rights filing by or against any Ground Lessor of first refusal 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 purchase rightsand all notices, are subject 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 and subordinate to this Instrumentany 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) Ground Lessee and Borrower have executed this Instrument mortgaging their separate estates in shall not, without Lender’s written consent, fail to exercise any option or right to renew or extend the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear term of the Ground Lease at foreclosure salein 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 Mortgage on such extended or renewed lease term; provided, however, Borrower shall not be required to exercise any particular such option or right to renew or extend (or to permit the term of the Ground Lease to 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. Ground Lessee If Borrower 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 Borrower hereby jointly and severally waive any right, arising at law attorney in fact as provided above in Lender’s own name or in equitythe name of and on behalf of a nominee of Lender, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles as Lender may determine in the exercise of marshalling or otherwiseits sole and absolute discretion.
(b) Except as specified in Section 11.02Borrower shall not waive, excuse, condone or in any action commenced to enforce way release or discharge the Obligations created Ground Lessor under the Ground Lease of or arising from the Ground Lessor’s material obligations, covenant and/or conditions under this Instrument, any resulting judgment or decree shall be enforceable against the related Ground Lessee only to Lease without the extent prior written consent of Ground Lessee’s interest in the Property or other property subject to any security interest securing the Note. Subject to Section 11.01, Lender (i) any execution on such judgment or decree, with respect to the assets of Ground Lessee, shall be limited to the Property or other property subject to any security interest securing the Note, and (ii) Ground Lessee shall which consent will not be personally liable for the payment of the indebtedness unreasonably withheld, delayed 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 Noteconditioned).
(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 Lessee and Borrower each agree that neither this Instrument nor any obligation Lease, other than an expiration of the Ground Lease pursuant to its terms. Consent to one amendment, 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 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 LesseeLessor’s interest in the Ground Lease and the Property by Borrower or any Affiliate of Borrower shall be subject accomplished by Borrower in such a manner so as to all avoid a merger of the provisions interests of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under lessor and lessee in the Ground Lease, regardless of whether unless consent to such obligation or liability (i) merger 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 the Propertygranted by Lender.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Ground Lease. (a) Ground Lessee and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting With respect to the Lender such lien as would Ground Lease, Borrower shall cause the fee simple title Mortgage Borrower to (i) except to the Property 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 sold free paid by Mortgage Borrower, as tenant under and clear pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease 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, 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 anyone holding insolvency proceeding of the lessor under any Ground Lease or claiming under 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 through theminsolvency proceeding within two (2) Business Days after receipt. Borrower shall not (and shall not permit Mortgage Borrower to), to have their separate estates sold separately upon foreclosurewithout the prior consent of Lender, whether under principles of marshalling or otherwise.
(bw) Except as specified in Section 11.02, in take any action commenced or fail 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 Lessee, 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 take 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 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, which would so release, impair, or subordinate.
(d) Ground Lessee and Ground Lessee’s interest in the Ground Lease and the Property shall be subject to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless of whether such 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 the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.result
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Ground Lease. (a) Ground Lessee The provisions of Sections 4.1.45 and Borrower have executed 5.1.26 of the Loan Agreement are hereby incorporated by reference into this Instrument mortgaging their separate estates in the Property for the purpose of granting Mortgage to the Lender such lien same extent and with the same force as would cause the fee simple title to the Property to be sold free and clear of the Ground Lease 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, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwiseif fully set forth herein.
(b) Except as specified in Section 11.02, If the Ground Lease is rejected in any case, proceeding or other action commenced to enforce by or against the Obligations created lessor under the Ground Lease (or arising under this Instrument, any resulting judgment person or decree shall be enforceable against Ground Lessee only to the extent of Ground Lessee’s party constituting or having an interest in the Property Ground Lease) under the Bankruptcy Code or other property subject to any security interest securing the Note. Subject to Section 11.01comparable federal or state statute or law, (i) any execution on such judgment or decreeMortgagor, with respect to the assets of Ground Lesseeimmediately after obtaining notice thereof, shall be limited give notice thereof to the Property or other property subject to any security interest securing the NoteMortgagee, and (ii) Ground Lessee Mortgagor, without the prior written consent of Mortgagee, shall not be personally liable for elect to treat the payment Ground Lease as terminated pursuant to Section 365(h)(1)(A)(i) of the indebtedness 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 and to offset rents under the Ground Lease under Section 365(h)(1)(A)(ii) of the Bankruptcy Code in the event any case, proceeding or other Obligations secured action is commenced by this Instrument, nor shall execution on or against the lessor under the Ground Lease under the Bankruptcy Code or any judgment comparable federal or decree resulting from any action to enforce the Obligations be state statute 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 Notelaw.
(c) It is hereby agreed that the fee title and the leasehold estate in the property demised by the Ground Lessee Lease shall not merge but shall always be kept separate and Borrower each agree that neither this Instrument nor any obligation distinct, notwithstanding the union of said estates in either the Ground Lessee Lessor, Mortgagor or a third party, whether by purchase or otherwise and Borrower hereunder will be releasedMortgagee shall continue to have and enjoy all of the rights and privileges of the Mortgagee as to the separate estates. If Mortgagor acquires the fee title, impaired or subordinated by any amendment to this Instrument the interest of the Ground Lessor or any other document estate, title 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 Ground Lease and the Property shall be subject to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless of whether such obligation or liability (i) is an obligation or liability of either ground lessee or ground lessor under property demised by the Ground Lease, or (ii) arises either before any part thereof, the lien of this Mortgage shall attach to, cover and be a lien upon such acquired estate, title or after Lender interest and same shall thereupon be and become a part of the Property 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, confirm and further evidence Mortgagee’s lien on the acquired estate, title or interest and to provide such endorsements to the Mortgagee’s title policy issued in connection with the Loan insuring that this Mortgage creates a first prior security interest on the Mortgagor’s fee interest in the 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 delay its consent thereto. Furthermore, Mortgagor hereby appoints Mortgagee its true and lawful attorney-in-fact to execute and deliver all such instruments and documents in the name and on behalf of Mortgagor in the event that Mortgagor fails to do same. This power, being coupled with an interest, shall be irrevocable as long as the Obligations remain unpaid.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Ground Lease. Mortgagor shall (ai) pay all rents, additional rents and other sums required to be paid by Mortgagor, as tenant under and pursuant to the provisions of each Ground Lessee Lease as and Borrower have executed this Instrument mortgaging their separate estates 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 Mortgagor, as tenant thereunder, to be performed and observed prior to the expiration of any applicable grace period therein provided, and (iii) promptly notify Mortgagee of the receipt by Mortgagor of any notice by the Ground Lessor to Mortgagor of any default by Mortgagor in the performance or observance of any of the terms, covenants or conditions of any Ground Lease on the part of Mortgagor, as tenant thereunder, to be performed or observed and deliver to Mortgagee a true copy of each such notice. Mortgagor shall not, without the prior consent of Mortgagee, surrender the leasehold estate created by any Ground Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend any Ground Lease, in any respect, either orally or in writing and Mortgagor hereby assigns to Mortgagee, as further security for the payment and performance of all Secured Indebtedness, all of the rights, privileges and prerogatives of Mortgagor, as tenant under the Ground Leases, to surrender the leasehold estate created by any Ground Lease or to terminate, cancel, modify, change, supplement, alter or amend any Ground Lease, and any such surrender of such leasehold estate or termination, cancellation, modification, change, supplement, alteration or amendment of any Ground Lease without the prior consent of Mortgagee shall be void and of no force and effect. If Mortgagor shall default, beyond any applicable grace period, in the performance or observance of any term, covenant or condition of any Ground Lease on the part of Mortgagor, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of this Mortgage, and without waiving or releasing Mortgagor from any of its obligations hereunder, Mortgagee shall have the right upon notice to Mortgagor, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Ground Lease on the part of Mortgagor, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Mortgagor, to the end that the rights of Mortgagor 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 Mortgagor or by any party on behalf of Mortgagor. If Mortgagee shall make any payment or perform any act or take action in accordance with the preceding sentence, Mortgagee will notify Mortgagor 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, Mortgagee and any person designated by Mortgagee 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 granting taking any such action. Mortgagee may pay and expend such sums of money as Mortgagee deems necessary for any such purpose and upon so doing shall be subrogated to the Lender such lien as would cause the fee simple title to the Property to be sold free any and clear all rights of the Ground Lease Lessor. Mortgagor hereby agrees to pay to Mortgagee immediately and without demand, all such sums so paid and expended by Mortgagee, together with interest thereon from the day of such payment at foreclosure salethe Default Rate. Ground Lessee All sums so paid and Borrower hereby jointly expended by Mortgagee and severally waive any right, arising at law or in equity, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise.
(b) 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 interest thereon shall be enforceable against Ground Lessee only to secured by 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 Lessee, shall be limited to the Property or other property subject to any security interest securing the Note, legal operation and (ii) Ground Lessee shall not be personally liable for the payment effect 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 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 Mortgage. If the Ground Lease and the Property Lessor shall be subject deliver to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability Mortgagee a copy of any kind or nature based upon or arising notice of default sent by said Ground Lessor to Mortgagor, as tenant under the Ground Lease, regardless such notice shall constitute full protection to Mortgagee for any action taken or omitted to be taken by Mortgagee, in good faith, in reliance thereon. Mortgagor will not subordinate or consent to the subordination of whether any 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 obligation or liability case, the written consent of Mortgagee shall have been first had and obtained. Each Lease hereafter made and each renewal of any existing Lease shall provide that, (ia) is an obligation or liability in the event of either ground lessee or ground lessor under the termination of the applicable Ground Lease, the Lease shall not terminate or be terminated by the tenant; and (iib) arises either before or after Lender acquired title to in the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all event of any 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 applicable Ground Lessee’s rights Lease unless the tenant is specifically named and remedies under joined in any such action and unless a judgment is obtained therein against the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrumenttenant.
Appears in 1 contract
Sources: Mortgage, Security Agreement and Fixture Filing (Taubman Centers Inc)
Ground Lease. The Trustor shall (ai) Ground Lessee pay when due all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property other sums required to be sold free paid by the Trustor as tenant under the Ground Lease, (ii) diligently perform and clear observe all of the other terms of the Ground Lease at foreclosure sale. Ground Lessee to be performed 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, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise.
(b) Except as specified in Section 11.02, in any action commenced to enforce observed by 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 11.01tenant thereunder, (ix) any execution on such judgment or decreefor monetary obligations, with respect to the assets of Ground Lessee, shall be limited to the Property or other property subject to any security interest securing the Noteat least one (1) business day prior to, and (iiy) for nonmonetary obligations, at least three (3) business days prior to the expiration of any applicable grace period therein, and (iii) promptly notify the Beneficiary of the giving of any notice by Ground Lessee Lessor to the Trustor of any default by the Trustor under the Ground Lease and deliver to the Beneficiary a true copy of each such notice. The Trustor shall not, without the prior consent of the Beneficiary, which consent shall not be personally liable unreasonably withheld, conditioned or delayed, surrender the leasehold estate created by the Ground Lease or terminate, cancel, modify or supplement the Ground Lease in any way that would reasonably be expected to have a material adverse effect upon the business, operations, properties, assets or condition (financial or otherwise) of the Trustor and its Subsidiaries, taken as a whole. Notwithstanding the foregoing, during the continuation of an Event of Default, the Trustor shall not terminate, cancel, modify or supplement the Ground Lease without the prior consent of the Beneficiary. The Trustor hereby assigns to Beneficiary, as further security for the payment of the indebtedness or other Obligations secured by this InstrumentObligations, 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 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 Ground Lease and the Property shall be subject to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising Trustor’s rights and privileges, as tenant under the Ground Lease, regardless during the continuation of whether such obligation an Event of Default in connection with which Beneficiary has commenced and is diligently prosecuting to completion a foreclosure action with respect to this Deed of Trust, to surrender the leasehold estates created by the Ground Lease or liability to terminate, cancel, modify or supplement the Ground Lease. If (i) is an obligation the Trustor has received written notice of a default from Ground Lessor due to the Trustor’s failure to perform or liability observe any term of either ground lessee or ground lessor under the Ground LeaseLease to be performed or observed by it thereunder, or (ii) arises either before in the event the Trustor is not entitled to receive a notice of default from Ground Lessor, the Trustor’s failure to perform or after Lender acquired title to the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all observe any term of the Ground LesseeLease to be performed or observed by it thereunder, then, without waiving or releasing the Trustor from any of its obligations hereunder, Beneficiary shall have the right, but shall be under no obligation, to pay any sum and to take any action (including entry upon the leased premises) to cause such performance or observance on behalf of the Trustor, so that the rights of the Trustor under the Ground Lease are unimpaired and free from default, even if the existence or the nature of the Trustor’s default is being questioned or denied by the Trustor or another person. The Beneficiary shall be subrogated to the rights of the Ground Lessor with respect to any such sums paid by the Beneficiary. The Trustor shall pay to the Beneficiary immediately and remedies under without demand, all such sums so paid or expended by the Beneficiary, together with interest thereon from the day of such payment at a rate equal at all times to the lesser of (i) 2.00% per annum above the highest tier of the applicable margins set forth in Section 1.2(B) of the Credit Agreement plus Base Rate, or (ii) the maximum lawful rate, and the same shall be secured by this Deed of Trust. If the Ground Lessor gives the Beneficiary notice of a default, such notice shall constitute full protection to the Beneficiary for any action reasonably taken or omitted by the Beneficiary, in good faith, in reliance thereon. Except to the extent required pursuant to the terms of the Ground Lease, including without limitation the Trustor will not subordinate or consent to the subordination of the Ground Lease to any rights Deed of Trust, security deed, lease or other interest on or in the Ground Lessor’s interest in the Trust Estate, unless in each such case, the written consent of the Beneficiary has first refusal or any purchase rightsbeen obtained, are subject it being agreed that the Beneficiary is under no obligation to and subordinate to this Instrumentgrant such consent.
Appears in 1 contract
Ground Lease. (a) Ground Lessee and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting With respect to the Lender such lien as would Ground Lease, Borrower shall cause the fee simple title Mortgage Borrower to (i) except to the Property 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 sold free paid by Mortgage Borrower, as tenant under and clear pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease at foreclosure saleon 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 Lessee and Borrower hereby jointly and severally waive any rightLease or the termination or cancellation of the Ground Lease, arising at law (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in equity, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrowerwriting, or anyone holding or claiming under or through them, to have their separate estates sold separately (y) vacate the premises upon foreclosure, whether under principles of marshalling or otherwisethe land underlying the Ground Lease.
(b) 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 With respect to the assets Ground Lease, if Mortgage Borrower shall default in the performance or observance of Ground Lesseeany term, shall be limited to the Property covenant or other property subject to any security interest securing the Note, and (ii) Ground Lessee shall not be personally liable for the payment condition 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 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 Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the Property same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but shall be subject 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 provisions terms, covenants and conditions of Section 5.01.
(e) Under no circumstances 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 or any of its successors or assigns have any obligation or liability a copy of any kind or nature based upon or arising written notice of default under the Ground Lease, regardless of whether such obligation notice shall constitute full protection to Lender for any action taken or liability (i) is an obligation 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 liability of either ground lessee or ground lessor under renew the Ground Lease, or (ii) arises either before or after Lender acquired title to the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all term of the Ground Lessee’s rights 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 remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to Borrower hereby expressly authorizes and subordinate to this Instrument.appoints Lender its
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Ground Lease. (a) Ground Lessee Borrower shall cause Mortgage Borrower to (i) pay all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by Borrower, as tenant under and pursuant to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear provisions of the Ground Lease at foreclosure sale. Ground Lessee and (for the avoidance of doubt, Borrower hereby jointly covenants and severally waive agrees that it shall cause Mortgage Borrower to pay 100% of all rents, additional rents and other sums due and payable under the Ground Lease notwithstanding the existence or obligations of any rightco-tenant thereunder (if any)), arising at law or (ii) diligently perform and observe, in equityall material respects, whether presently existing or subsequently accruingall of the terms, whether to covenants and conditions of the Ground Lessee, Lease on the part of Mortgage Borrower, or anyone holding or claiming under or through themas tenant thereunder, to have their separate estates sold separately upon foreclosurebe performed and observed, whether and (iii) promptly notify Agent of the receipt of any written notice given by the landlord under principles of marshalling the Ground Lease to Borrower or otherwise.
(b) 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, Mortgage Borrower with respect to the assets 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 LesseeLease on the part of Mortgage Borrower, as tenant thereunder, to be performed or observed, and deliver to Agent a true copy of each such notice within three (3) Business Days of receipt and (iv) promptly notify Agent of any bankruptcy, reorganization or insolvency of the landlord under the Ground Lease or of any notice thereof, and deliver to Agent a true copy of such notice within three (3) Business Days of Borrower’s or Mortgage Borrower’s receipt. Borrower shall not, and shall not permit Mortgage Borrower to, without the prior consent of Agent (not to be limited unreasonably withheld, conditioned or delayed), surrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend the Ground Lease, either orally or in writing. Subject to the Property or other property subject rights of Mortgage Agent, Borrower hereby assigns to any Agent, as further security interest securing the Note, and (ii) Ground Lessee shall not be personally liable for the payment and performance of the indebtedness or other Obligations secured by obligations and for the performance and observance of the terms, covenants and conditions of the Pledge Agreement, 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 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 Ground Lease Agreement and the Property shall be subject to other Loan Documents, all of the provisions rights, privileges and prerogatives of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising Mortgage Borrower, as tenant under the Ground Lease, regardless 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 whether such obligation the leasehold estate created by the Ground Lease or liability termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease in any respect without the prior consent of Agent (inot to be unreasonably withheld, conditioned or delayed) shall be void and of no force and effect. Furthermore, Borrower shall not permit to Mortgage Borrower to elect not to restore the Property pursuant to the terms of the Ground Lease without Agent’s consent. If Mortgage 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 (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, then, without limiting the generality of the other provisions of the Pledge Agreement, 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 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 cause Mortgage Borrower to perform as required by the Ground Lease with respect to the Ground Lease Put on or before the date that is an obligation or liability ten (10) days prior to the date the Association (as defined in the Agreement Concerning Interests) may compel Mortgage 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 Agent a copy of either ground lessee or ground lessor any notice of default under the Ground Lease, such notice shall constitute full protection to Agent for any reasonable action taken or (ii) arises either before omitted to be taken by Agent, in good faith, in reliance thereon. Borrower shall, or after Lender acquired title shall cause Mortgage Borrower to, exercise each individual option, if any, to extend or renew the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all term of the Ground Lessee’s rights Lease upon demand by Agent made at any time within one (1) year prior to the last day upon which any such option may be exercised, and remedies under Borrower hereby expressly authorizes and appoints Agent its attorney-in-fact to exercise any such option in the name of and upon behalf of Mortgage Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Borrower will not subordinate or consent and shall not permit Mortgage Borrower to subordinate or consent to the subordination of the Ground LeaseLease to any mortgage, including without limitation any rights of first refusal security deed, lease or other interest on or in the landlord’s interest in all or any purchase rightspart of the Property, are subject unless, in each such case, the written consent (not to be unreasonably withheld, conditioned or delayed) of Agent shall have been first had and subordinate to this Instrumentobtained.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Black Creek Diversified Property Fund Inc.)
Ground Lease. (a) Ground Lessee and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear In consideration of the Ground Lease at foreclosure salemutual 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 lease basis, 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. Ground Lessee EPCC grants EPISD reasonable ingress and Borrower hereby jointly egress, including, without limitation, the right to use all adjacent streets, sidewalks, alleys, and severally waive any right, arising at law or in equity, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through themother means of access, to have their separate estates sold separately upon foreclosure, whether under principles and from the real property covered by this ground lease through adjoining property owned and/or controlled by EPCC. The term of marshalling or otherwise.
(b) 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 ground lease shall be enforceable against Ground Lessee only coterminous with the term of this Interlocal Agreement, provided, however, that to the extent the ownership of Ground Lesseeany 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 interest sole judgment and opinion, being suitable for EPISD’s intended use and purpose. After certain sites on the property are prepared by EPCC for the installation of portable and modular buildings, EPISD shall inspect such sites and the corresponding preparation, and should installation of the buildings then proceed, 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 Property real property or other property subject the improvements EPCC is to make, as to merchantability or fitness for a particular purpose or use in any security interest securing manner whatsoever. Provided, however, that EPCC shall remain responsible to correct and repair any defects in materials or workmanship which may be discovered within one year of the Note. Subject effective date of this Agreement regarding the items that it is responsible to Section 11.01, provide under Article 6.A (i) any execution on such judgment or decree, with respect to the assets of Ground Lessee, 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 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 Ground Lease and the Property shall be subject to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless of whether such 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 the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Leasehereinabove, including without limitation any rights of first refusal or any purchase rightsthe pads, are subject to footings, and subordinate to this Instrumentstub-outs.
Appears in 1 contract
Sources: Interlocal Agreement
Ground Lease. (a) The Mortgagor represents and warrants that (i) Exhibit A contains a correct and complete description of the Ground Lessee and Borrower have executed this Instrument mortgaging their separate estates in Lease; (ii) the Property for the purpose of granting Mortgagor has furnished to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear Mortgagee a copy of the Ground Lease at foreclosure sale. certified as true and correct by the Mortgagor; (iii) except as described in Exhibit A, the Ground Lessee and Borrower hereby jointly and severally waive any right, arising at law Lease has not been modified or in equity, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through themassigned 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 notice or passage of time or both would cause a default under the Ground Lease; and (v) the execution, delivery and performance of this Mortgage do not require any consent (other than those consents which have their separate estates sold separately upon foreclosurebeen obtained and are in full force and effect) under, whether under principles and will not contravene any provision of marshalling or otherwisecause a default under, the Ground Lease.
(b) 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 The Mortgagor 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 decreeduly and punctually pay, with respect to perform and observe all of its obligations under the assets of Ground Lessee, shall be limited to the Property or other property subject to any security interest securing the Note, and 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 Lessee Lease; (iii) shall not be personally liable for terminate or surrender the payment Ground Lease; (iv) shall not modify or amend the Ground Lease except as permitted by Section 7.08 of the indebtedness 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 other Obligations secured (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 this Instrumentthe Mortgagor of any notice of default under the Ground Lease or of any notice of the possible or actual termination thereof, nor shall execution on any judgment material right of the Mortgagor thereunder or decree resulting from any action to enforce the Obligations be or be caused to be a lien on material obligation of any other asset 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 Lessee other than Lease or any termination thereof; (C) promptly after receiving or learning of the Property existence of any such assignment, or other property subject the existence of any assignment of the interest of the landlord under the Ground Lease, 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 security interest securing option to purchase or right of first refusal under the NoteGround Lease, accompanied by a copy of such notice.
(c) The provisions of subsection (b) of this Section shall also apply to any right of the Mortgagor to possession under Section 365 of the Bankruptcy Code in the event the Ground Lessee and Borrower each agree that neither this Instrument nor any obligation of Ground Lessee and Borrower hereunder will be released, impaired or subordinated Lease is rejected by any amendment other party thereunder or its trustee pursuant 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 subordinatesaid Section.
(d) Ground Lessee and Ground Lessee’s 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 Lease, but such other title, estate or interest will remain discrete, shall immediately and automatically become subject to the Property Lien hereof and such title, estate or interest shall be subject to all part of the provisions Mortgaged Property and included within the term and definition of Section 5.01"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 such instrument.
(e) Under no circumstances The Mortgagor hereby unconditionally assigns, 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 Lender have the right to proceed in its own name or 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 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 such 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 successors or assigns objection notice to the Mortgagor during which time the Mortgagee shall have any obligation or liability the right to bring its objections to the attention of any kind 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 nature based 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 arising 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 under the Ground Lease, regardless shall determine to reject the Ground Lease pursuant to Section 365(a) of whether 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 bankruptcy court for authority to reject the Ground Lease. The Mortgagee shall have the right, but not the obligation, to serve upon the Mortgagor within such obligation 10-day period a notice stating that the Mortgagee demands that the Mortgagor assume and assign the Ground Lease to the Mortgagee pursuant to Section 365 of the Bankruptcy Code and the Mortgagee covenants to cure or liability (i) is an obligation or liability provide adequate assurance of either ground lessee or ground lessor prompt cure of all defaults and provide adequate assurance of future performance of the Mortgagor's obligations under the Ground Lease. If the Mortgagee serves upon the Mortgagor the notice described in the preceding sentence, or the Mortgagor shall not seek to reject the Ground Lease and shall seek court approval to 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 the Mortgagee of the covenant provided for in clause (ii) arises either before or after Lender acquired title to of the Propertypreceding sentence.
(fk) Ground Lessee and Borrower each hereby acknowledge and agree that all Effective upon the entry of an order for relief in respect of the Ground Lessee’s rights and remedies 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 the Ground Lease, including without limitation any rights of first refusal Lease may be rejected or any purchase rights, are subject to and subordinate to this Instrumentassumed.
Appears in 1 contract
Sources: Debt Agreement (Vencor Inc)
Ground Lease. (a) Ground Lessee Borrower shall:
(i) pay all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by Borrower, as tenant under and pursuant to the Lender provisions of the Ground Lease, as and when such lien as would cause rent, additional rents and other sums are payable;
(ii) diligently perform and observe all of the fee simple title to the Property to be sold free other terms, covenants and clear conditions of the Ground Lease 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, on the part of Borrower, or anyone holding or claiming under or through themas tenant thereunder, to have their separate estates sold separately upon foreclosurebe performed and observed, whether at least three (3) days prior to the expiration of any applicable grace period therein provided; and
(iii) promptly notify Administrative Agent of the receipt by Borrower of any written notice by the lessor under principles the Ground Lease to Borrower of marshalling any default by Borrower in the performance or otherwiseobservance 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 Administrative Agent a true copy of each such notice.
(b) Except as specified in Section 11.02Borrower shall not, without the prior consent of Administrative Agent, surrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend the Ground Lease, in any action commenced to enforce the Obligations created material respect, either orally 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 Lessee, shall be limited to the Property or other property subject to any security interest securing the Notewriting, and (ii) Ground Lessee shall not be personally liable Borrower hereby assigns to Administrative Agent, as further security for the payment and performance of the indebtedness Obligations, 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 other Obligations secured 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 this Instrumentthe Ground Lease or termination, nor cancellation, modification, change, supplement, alteration or amendment of the Ground Lease in any material respect without the prior consent of Administrative Agent 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 void and of Ground Lessee other than the Property or other property subject to any security interest securing the Noteno force and effect.
(c) If Borrower shall default in the performance or observance of any material term, covenant or condition of the Ground Lessee Lease on the part of Borrower, as tenant thereunder, to be performed or observed, 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 each agree from any of its Obligations, 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 material terms, covenants and conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Borrower, to the end that neither this Instrument nor any obligation the rights of Borrower in, to and under the Ground Lessee 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 hereunder will be released, impaired or subordinated by any amendment to this Instrument party on behalf of Borrower. If Administrative Agent shall make any payment or perform 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 whichtake action in accordance with the preceding sentence, but Administrative Agent 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 reciprocal easement agreement, Administrative Agent and any Person designated as Administrative Agent’s agent by Administrative Agent 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 this provisionthe purpose of taking any such action. Administrative Agent may pay and expend such sums of money as Administrative Agent 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 Administrative Agent within five (5) days after demand, would all such sums so releasepaid and expended by Administrative Agent, impair, or subordinatetogether with interest thereon from the day of such payment at the Default Rate. All sums so paid and expended by Administrative Agent and the interest thereon shall be secured by the Security Instrument and the other Loan Documents.
(d) Ground Lessee and Ground Lessee’s interest in If the lessor under the Ground Lease and the Property shall be subject deliver to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability Administrative Agent a copy of any kind or nature based upon or arising notice of default sent by said lessor to Borrower, as tenant under the Ground Lease, regardless of whether such obligation notice shall constitute full protection to Administrative Agent for any action taken or liability (i) is an obligation omitted to be taken by Administrative Agent, in good faith, in reliance thereon. Borrower shall exercise each individual option, if any, to extend or liability of either ground lessee or ground lessor under renew the Ground Lease, or (ii) arises either before or after Lender acquired title to the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all term of the Ground Lessee’s rights Lease upon demand by Administrative Agent made at any time within one (1) year prior to the last day upon which any such option may be exercised, and remedies under if Borrower shall fail to do so, Borrower hereby expressly authorizes and appoints Administrative 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 LeaseLease to any mortgage, including without limitation any rights of first refusal security deed, lease or other interest on or in the landlord’s interest in all or any purchase rightspart of the Property, are subject to unless, in each such case, the written consent of Administrative Agent shall have been first had and subordinate to this Instrumentobtained.
Appears in 1 contract
Sources: Loan and Security Agreement (Morgans Hotel Group Co.)
Ground Lease. (a) Borrower shall cause Property Owner to (i) pay all rents, additional rents and other sums required to be paid by Property Owner, as tenant under and pursuant to the provisions of any Ground Lessee Lease, (ii) diligently perform and Borrower have executed this Instrument mortgaging their separate estates observe all of the material terms, covenants and conditions of each Ground Lease on the part of Property Owner, as tenant thereunder, to be performed and observed, and (iii) promptly notify Lender of the giving of any written notice by the landlord under any Ground Lease to Property Owner of any event of default thereunder by Property Owner in the performance or observance of any of the terms, covenants or conditions of any Ground Lease on the part of Property for Owner, as tenant thereunder, to be performed or observed, and deliver to Lender a true copy of each such notice within fifteen (15) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the purpose landlord under any Ground Lease or of granting any notice thereof, and deliver to Lender a true copy of such notice within fifteen (15) Business Days of Property Owner’s or Borrower’s receipt. Borrower shall not permit Property Owner to, without the prior consent of Lender, surrender the leasehold estate created by any Ground Lease or terminate or cancel any Ground 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) and (y) otherwise of a ministerial nature). If Property Owner shall default in the performance or observance of any material term, covenant or condition of any Ground Lease on the part of Property Owner, as tenant thereunder, and shall fail to cure the same prior to the Lender such lien as would cause expiration of any applicable cure period provided thereunder, then, without limiting the fee simple title 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 Property to be sold free and clear 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 any Ground Lease on the part of Property Owner to be performed or observed on behalf of Property Owner, to the end that the rights of Property Owner in, to and under such Ground Lease shall be kept unimpaired and free from default. If the landlord under any Ground Lease shall deliver to Lender a copy of any notice of an event of default under 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 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 foreclosure sale. Ground Lessee and any time within one (1) year prior to the last day upon which any such option may be exercised, and, subject to the rights of Mortgage Lender, Borrower hereby jointly expressly authorizes and severally waive appoints Lender its attorney-in-fact to exercise any rightsuch option in the name of and upon behalf of Borrower (on behalf of Property Owner), arising at law or in equity, whether presently existing or subsequently accruing, whether which power of attorney shall be irrevocable and shall be deemed to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwisebe coupled with an interest.
(b) Except as specified in Section 11.02, Notwithstanding anything contained 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 Lease to the extent contrary, Borrower shall not permit Property Owner to further sublet any portion of Ground Lessee’s interest in the any Property or (other property subject to any security interest securing the Note. Subject than as permitted pursuant to Section 11.01, (i5.7 of this Agreement) any execution on such judgment or decree, with respect to the assets without prior written consent of Ground Lessee, 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 NoteLender.
(c) Ground Lessee and Borrower 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 Ground Lease and the Property shall be subject to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless of whether such 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 the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Ground Lease. (a) 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 Lessee Lease, 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 be performed or observed by Borrower under the Ground Lease, or the giving of any notice by the lessor under the Ground Lease to Borrower (A) claiming such a default, or (B) of such lessor’s intention to exercise any remedy reserved to the lessor thereunder; and
(iii) Cause a copy of each such notice given by such lessor to Borrower to be delivered to Bank.
(b) In addition to any insurance required pursuant to this Mortgage or any other Loan Document, Borrower 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. 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 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 obligations required on its part to be performed under the Ground Lease. In the event that Borrower fails or 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.
(c) 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 have executed this Instrument mortgaging their separate estates shall not modify, change, supplement, alter or amend in any material respect the Property for Ground Lease, either orally or in writing, and any attempt on the purpose part of granting Borrower to exercise any such right without the Lender such lien as would cause the consent of Bank shall be null and void.
(e) The fee simple title to the Property to be sold free and clear of properties demised by the Ground Lease at foreclosure sale. Ground Lessee and Borrower hereby jointly the leasehold estate shall not merge, but always shall remain separate and severally waive any rightdistinct, arising at law notwithstanding the union of such estates either in the lessor or in equity, whether presently existing the lessee under the Ground Lease or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling in a third party by purchase or otherwise.
(bf) Except as specified in Section 11.02, Borrower shall give Bank prompt notice of the commencement of any arbitration or appraisal proceeding pursuant to the Ground Lease. Bank shall have the right to intervene and participate in any action commenced to enforce the Obligations created or arising under this Instrument, any resulting judgment or decree such proceeding and Borrower shall be enforceable against Ground Lessee only 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 Lessee’s interest Lease. If at the time any such proceeding shall be commenced, Borrower shall be in default in the Property performance 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 Lessee, 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 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 Ground Lease and the Property shall be subject to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability observance of any kind covenant or nature based upon or arising under agreement contained in the Ground Lease, regardless or in this Mortgage, on the part of whether Borrower to be performed or 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 Borrower the arbitrator(s) or appraiser(s) in such obligation or liability proceeding.
(ig) is an obligation or liability of either ground lessee or ground Borrower shall use its reasonable efforts to obtain from the lessor under the Ground Lease, 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 force and effect (or (iiif modified, stating the modifications) arises either before and the dates to which the ground rent and other charges, if any, have been paid in advance, and stating whether or after Lender acquired title not, to the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all best knowledge of the Ground Lessee’s rights and remedies under signer of such certificate, Borrower is in default in the performance of any covenant or agreement contained in the Ground Lease, including without limitation any rights and, if so, specifying each such default of first refusal or any purchase rights, are subject to and subordinate to this Instrumentwhich the signer may have knowledge.
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Sources: Leasehold Mortgage / Mortgage and Security Agreement (CNL Healthcare Properties II, Inc.)
Ground Lease. (a) Ground Lessee Borrower shall:
(i) diligently perform and Borrower have executed this Instrument mortgaging their separate estates in observe all of the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property to be sold free terms, covenants and clear conditions of the Ground Lease 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, on the part of Borrower, or anyone holding or claiming under or through themas landlord thereunder, to have their separate estates sold separately upon foreclosurebe performed and observed, whether prior to the expiration of any applicable grace period therein provided; and
(ii) promptly notify Lender of the giving of any written notice by the lessee under principles the Ground Lease to Borrower of marshalling any default by Borrower in the performance or otherwiseobservance of any of the terms, covenants or conditions of the Ground Lease on the part of Borrower, as landlord thereunder, to be performed or observed, and deliver to Lender a true copy of each such notice.
(b) Except as specified in Section 11.02Borrower shall not, in any action commenced to enforce without the Obligations prior consent of Lender, surrender the leasehold estate 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 Lessee, 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 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 Ground Lease and or terminate or cancel the Property shall be subject to all of Ground Lease or modify, change, supplement, alter or amend the provisions of Section 5.01.
(e) Under no circumstances shall Lender Ground Lease, except in accordance with the terms thereof, or waive any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising rights under the Ground Lease, regardless either orally or in writing, and Borrower hereby assigns to Lender, as further security for the payment and performance of whether such obligation or liability (i) is an obligation or liability the Obligations and for the performance and observance of either ground lessee or ground lessor 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 landlord under the Ground Lease, to surrender the leasehold estate created by the Ground Lease or (ii) arises either before to terminate, cancel, modify, change, supplement, alter, amend or after Lender acquired title to waive any rights under the Property.
(f) Ground Lessee Lease in any material respect, except in accordance with the terms thereof, and Borrower each hereby acknowledge and agree that all any such surrender of the leasehold estate created by the Ground Lessee’s Lease or termination, cancellation, modification, change, supplement, alteration, amendment of or waiver of rights under the Ground Lease in any material respect without the prior consent of Lender shall be void and of no force and effect. For so long as Lender and Ground Tenants are Affiliates, the foregoing shall not prevent Borrower, as landlord under the Ground Lease, from exercising its rights and remedies under the Ground Lease. Nothing in this Agreement or any other Loan Agreement shall operate to limit or waive any right, remedy, defense, offset, setoff, deduction, claim, counterclaim or other action that Borrower as landlord under the Ground Lease may have against Ground Tenant.
(c) 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.
(d) In connection with any covenant, agreement or obligation of Borrower to cause Ground Tenant or any Tenant to act or refrain from acting set forth in this Agreement or in any other Loan Document, Borrower’s sole obligation under this Agreement or any other Loan Document shall be to use commercially reasonable efforts to cause the Ground Tenant to so act or refrain from acting. For purposes of the foregoing phrase, commercially reasonable efforts shall be deemed to include Borrower incurring necessary and reasonable costs and expenses in connection with diligently enforcing its rights and remedies pursuant to the Ground Lease. For so long as any covenant under this Agreement or in any other Loan Document regarding the Property is the obligation of a Tenant under a Lease (including the Ground Tenant under the Ground Lease), such obligation shall be solely that of the applicable Tenant for so long as such Tenant remains in possession of its applicable leasehold interests and Borrower shall have no liability or responsibility for such Tenant’s failure to fulfill such covenant until Borrower exercises its rights and remedies under the Ground Lease and obtains possession of the applicable leasehold interests.
(e) If Borrower is required to deliver any information, certification or documentation relating to, or executed by, a Tenant, and the same is not otherwise in the possession or control of Borrower, Borrower shall be deemed to have satisfied such requirement so long as Borrower uses commercially reasonable efforts to obtain such information, certification or documentation from Tenant.
(f) Lender acknowledges and agrees that the conditions to exercise a Substitution and/or a Partial Release may be performed, and paid for, by Ground Tenant and Lender shall accept such performance from Ground Tenant.
(g) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, for so long as WPG (as defined in Section 10.29 below) is Lender (or maintains an ownership interest or participation interest in Lender or otherwise owns any part of the Loan) hereunder, in no event shall Borrower be responsible or liable for any costs, expenses, claims, Losses or other liabilities of such Lender (i) to the extent arising out of or in connection with, the acts, omissions, negligence or willful misconduct of Ground Tenant (or Ground Tenant’s Affiliates or employees), Ground Tenant’s use, management, operations, alterations, or leasing of the Property (or any portion thereof), the condition or repair of the Property (or any part thereof) or a breach or violation of the Ground Lease by Ground Tenant (or any of Ground Tenant’s Affiliates or employees) other than a monetary default, including without limitation any rights the failure to pay ground rent in full, that is due to the Net Operating Income payable to Ground Tenant being less than the ground rent payable for the applicable period provided Ground Tenant has delivered and certified to Borrower financials evidencing the Net Operating Income payable to Ground Tenant being less than the ground rent or (ii) which are within the scope of first refusal the indemnification obligations or any purchase rights, are subject to and subordinate to this Instrumentreimbursement obligations of Ground Tenant under the Ground Lease.
Appears in 1 contract
Ground Lease. (a) Borrower shall:
(i) pay all Ground Lessee Rent and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by Borrower, as tenant under and pursuant to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear provisions of the Ground Lease at foreclosure sale. on or prior to the date that such Ground Lessee 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 Borrower hereby jointly is continuing;
(ii) diligently perform and severally waive any rightobserve all of the other material terms, arising at law or in equity, whether presently existing or subsequently accruing, whether to covenants and conditions of the Ground Lessee, Lease on the part of Borrower, or anyone holding or claiming under or through themas tenant thereunder, to have their separate estates sold separately upon foreclosurebe 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 Ground Lessor to Borrower of any default by Borrower in the performance or observance of any of the terms, whether under principles covenants or conditions of marshalling the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or otherwise.observed and deliver to Lender a true copy of each such notice; and
(b) Except as specified in Section 11.02Borrower shall not without the prior consent of Lender
(i) surrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease, in any action commenced provided that, upon at least thirty (30) days prior written notice to enforce Lender, Borrower may acquire 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 fee interest in the Property or other property subject if concurrently therewith (A) Borrower executes and delivers to any security interest securing the Note. Subject Lender such documents as are required to Section 11.01, (i) any execution on spread the Lien of the Mortgage to include such judgment or decree, with respect to the assets of Ground Lessee, shall be limited to the Property or other property subject to any security fee interest securing the Note, and (ii) Ground Lessee shall not be personally liable for amend the payment other Loan Documents to reflect the addition of Borrower’s fee interest to the Lien of the indebtedness 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, security deed, lease or other Obligations secured by this Instrument, nor shall execution interest on any judgment or decree resulting from any action to enforce in 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 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 Lesseelandlord’s interest in the Ground Lease and the Property shall be subject to all or any part of the provisions Property, except as required by the terms of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless of whether such 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 the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Ground Lease. With regards to the Ground Lease, Mortgagor hereby covenants and agrees, for the benefit of Mortgagee and Lenders, as follows:
(a) The Ground Lessee Lease is in full force and Borrower have executed this Instrument mortgaging their separate estates effect and has not been modified, amended, or supplemented, except as set forth and described on Exhibit “B” attached hereto and made a part hereof, and Mortgagor is the owner of the entire lessee's interest in the Property for Ground Lease and has the purpose of granting right and authority under the Ground Lease to execute this Mortgage and to encumber Mortgagor’s interest therein; and
(b) All rents (including additional rents and other charges) reserved in the Ground Lease have been paid to the Lender such lien as would cause the fee simple title extent they were due and payable to the Property to be sold free and clear 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 the provisions of the Ground Lease at foreclosure sale. Ground Lessee and Borrower hereby jointly and severally waive any right, arising at law or in equitythe performance of any of the terms, whether presently existing or subsequently accruingcovenants, whether to Ground Lessee, Borrowerconditions, or anyone holding or claiming under or through themwarranties thereof on the part of Mortgagor, as lessee, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise.be performed and observed; and
(bd) Except 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 specified in Section 11.02lessee, in any action commenced to enforce under the Obligations created or arising under this InstrumentGround Lease, any resulting judgment or decree shall be enforceable against Ground Lessee only to the extent of Ground Lesseeincluding, without limitation, Mortgagor’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, obligations with respect to the assets payment of rent, prior to the expiration of any applicable notice and/or cure period provided for in the Ground LesseeLease, 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 limited paid by Mortgagor to Mortgagee promptly upon demand by Mortgagee and shall be added to the Property or other property subject to any security interest securing the Notedebt secured by, and (ii) shall have the benefit of the lien created by, this Mortgage. Upon the receipt by Mortgagee from the landlord under the Ground Lessee 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 personally liable 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 in any proceeding under the Federal Bankruptcy Code against Mortgagor) and (c) it shall not 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 indebtedness or Ground Lease and the performance of all of the other Obligations secured terms, provisions, covenants, conditions, and agreements contained in the Ground Lease, to be kept, performed and complied with by this InstrumentMortgagor, nor as lessee therein) shall execution on any judgment or decree resulting discharge Mortgagor from any action to enforce of its obligations under the Obligations be Notes or be caused to be a lien on any of the other asset of Ground Lessee other than the Property or other property subject to any security interest securing the Note.Loan Documents; and
(ch) Ground Lessee and Borrower each agree Mortgagor hereby agrees that neither this Instrument nor any obligation there shall be no merger 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 Lesseethe Mortgagor’s interest in the Ground Lease and the Property shall be subject to all leasehold estate and interest created thereunder, with the fee simple estate of the provisions landlord under the Ground Lease by reason of Section 5.01.
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 (ea) Under no circumstances shall Lender join in a written instrument effecting such merger and (b) shall duly record the same. If Mortgagor or any of its successors or assigns have 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 obligation or liability documentation reasonably requested by Mortgagee to evidence such lien; and
(i) Mortgagor shall enforce the obligations of any kind or nature based upon or arising the landlord under the Ground Lease, regardless Lease to the end that Mortgagor may enjoy all of whether such obligation or liability (i) is an obligation or liability of either ground lessee or ground lessor the rights granted to it under the Ground LeaseLease and shall promptly notify Mortgagee in writing of any default in the performance and/or observance of any of the terms, or (ii) arises either before or after Lender acquired title to the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all conditions, and/or covenants of the Ground Lessee’s rights and remedies Lease on the part of any party thereto. Mortgagor shall further promptly advise Mortgagee in writing of the occurrence of any event of default under the Ground LeaseLease and of the giving of any notice to Mortgagor of any default of Mortgagor in the performance and/or observance of any of the terms, including conditions and/or covenants of the Ground Lease to be performed or observed by Mortgagor and shall deliver to Mortgagee a true copy of each such notice immediately upon its receipt of same; and
(j) If any action or proceeding shall be instituted to evict the Mortgagor or to recover possession of the Leasehold Premises or for any other purpose affecting the Ground Lease 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 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 limitation 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 rights proceedings which may give rise to the right to make any such election or determination and shall deliver to Mortgagee copies of first refusal any and all papers served in connection therewith. Mortgagee may make any such election or determination as, in its sole discretion, it shall determine; and
(l) Mortgagor shall exercise any purchase rightsoption or right to renew or extend the term of the Ground Lease at least eighteen (18) months prior to the date of termination of any such option or right, are shall give prompt written notice thereof to Mortgagee, and shall execute, deliver and 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 on behalf of a 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, or lien on, any interest in the real property subject to and subordinate the Ground Lease without the prior written consent of Mortgagee. Any such subordination without such consent shall, at Mortgagee’s option be void; and
(n) As used herein, “Bankruptcy Code” shall mean 11 U.S.C. §§ 101 et seq., as modified or recodified from time to this Instrument.time. Notwithstanding anything to the contrary herein contained herein with respect to the Ground Lease:
Appears in 1 contract
Ground Lease. (a) Tenant acknowledges that the Premises, the Project, and this Lease are and shall remain subject and subordinate to the Ground Lessee Lease and Borrower have 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 this Instrument mortgaging their separate estates 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 Property for form attached hereto as Exhibit K (the purpose “Lease Subordination Agreement”) or such other instruments, confirming such subordination and instruments of granting 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, (i) the final design and aesthetic of the Premises and the Project, (ii) any Transfer, and (iii) any financing to be secured by Tenant’s interest in this Lease, may be subject to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear requirements of the Ground Lease at foreclosure saleand/or the Development Rights Agreement and/or to the approval of Ground Lessor.
(b) Tenant shall be responsible for, and hereby covenants to satisfy in a timely fashion, any and all obligations, covenants, responsibilities, and/or indemnities binding on Landlord as holder of the ground lessee’s interest under the Ground Lease or as a party to the Development Rights Agreement (collectively, the “Ground Lease Obligations”), including, 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 Lessee Lease (but excluding the payment of the annual rent provided for in the Ground Lease (which shall be governed by the terms and Borrower hereby jointly conditions of the Office / Lab Lease)), the payment of the rent provided for in the Development Agreement, and severally waive 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, whether presently existing or subsequently accruingexcept to the extent, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise.
(b) 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 and only to the extent extent, that the Development Rights Deficiency is attributable to the gross negligence or willful misconduct of Ground Lessee’s interest 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 the Property any way arise out of, are connected with, or other property subject relate 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 Lessee, 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 Development Rights Deficiency other than the Property or other property subject to any security interest securing the Notea Landlord Caused Development Rights Deficiency.
(c) Ground Lessee and Borrower 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 Ground Lease and the Property shall be subject to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless of whether such 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 the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Ground Lease. (a) Ground Lessee Borrower will, and Borrower have executed this Instrument mortgaging their separate estates will cause Owner to, comply in all material respects with the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property to be sold free terms and clear conditions of the Ground Lease at foreclosure saleLease. Ground Lessee Borrower will not, and Borrower hereby jointly and severally waive any rightwill not permit Owner to, arising at law do or in equitypermit anything to be done, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrowerthe doing of which, or anyone holding refrain from doing anything, the omission of which, will impair or claiming tend to impair the security of the Premises under the Ground Lease or through themwill 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 have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwiseLender.
(b) Except as specified in Section 11.02Borrower shall, and shall cause Owner to, enforce the Ground Lease and not terminate, modify, cancel, change, supplement, alter or amend the Ground Lease, or waive, excuse, condone or in any action commenced to enforce the Obligations created way release or arising under this Instrument, discharge Ground Lessor of or from 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 Lessee, 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 material covenants and conditions to be a lien on any other asset of performed or observed by Ground Lessee other than the Property or other property subject to any security interest securing the NoteLessor.
(c) Lender shall have the right, but not the obligation, to perform any obligations of Borrower or Owner under the terms of the Ground Lessee 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 each agree that neither this Instrument nor to Lender during the continuance of an Event of Default on demand. No performance by Lender of any obligation obligations 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 Owner shall constitute a waiver of right any Event of Default arising by reason of Borrower’s or remedy as Owner’s failure to Ground Lesseeperform the same. If Lender shall make any payment or perform any act or take action in accordance with this Section 2.36(c), BorrowerLender will notify Borrower of the making of any such payment, the performance of any such act, or the taking of any other party, or any other act or thing which, but for this provision, would so release, impair, or subordinatesuch action.
(d) Ground Lessee and Ground Lessee’s interest in Borrower shall cause 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 of the Property 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 on behalf of Owner to so exercise such option if Borrower fails to cause Owner to exercise as herein required, which power of attorney shall be subject irrevocable and shall be deemed to all 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 provisions Ground Lease within five (5) days of Section 5.01the exercise of any such option.
(e) Under no circumstances 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 or all of Borrower’s claims and rights to the payment of damages arising from any rejection by the Ground Lessor of its successors or assigns have the Ground Lease under the Bankruptcy Code. Borrower shall notify Lender promptly (and in any obligation or liability event within ten (10) days) of any kind claim, suit, action or nature based upon or arising under proceeding relating to the rejection of the Ground Lease. Lender is hereby irrevocably appointed as Borrower’s attorney-in-fact, regardless coupled with an interest, with exclusive power to file and prosecute, to the exclusion of whether such obligation or liability (i) is an obligation or liability Borrower, any proofs of either ground lessee or ground lessor claim, complaints, motions, applications, notices and other documents, in any case in respect of the Ground Lessor under the Ground LeaseBankruptcy 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 (ii) arises either before 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 acquired title 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 Propertyprior 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 Lessee and Borrower each hereby acknowledge and agree that all 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 LesseeLessor’s rights and remedies 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, including without limitation after obtaining knowledge thereof, notify Lender of any rights filing by or against the Ground Lessor of first refusal 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 purchase rightsand all notices, are subject 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 and subordinate to this Instrumentthe 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. Borrower shall (ai) Ground Lessee pay all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by Borrower, as tenant under and pursuant to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear provisions of the Ground Lease at foreclosure saleas 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 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 notice by the Ground Lessor to Borrower of any default by 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. Borrower shall not, without the prior consent of Lender, surrender the leasehold estate created by the Ground Lessee Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend the Ground Lease, in any respect, either orally or in writing, and Borrower hereby jointly and severally waive any rightassigns to Lender, arising at law or in equity, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise.
(b) 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 further 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 Lessee, 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 Debt and for the performance and observance of the terms, covenants and conditions of this InstrumentLoan Agreement, 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 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 Ground Lease and the Property shall be subject to all of the provisions rights, privileges and prerogatives of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising Borrower, as tenant under the Ground Lease, regardless 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 whether 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 Borrower, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of this Loan Agreement, 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 Borrower, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default, even though the existence of such obligation event of default or liability (i) is an obligation the nature thereof be questioned or liability denied by Borrower or by any party on behalf of either ground lessee Borrower. If Lender shall make any payment or ground lessor 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 Ground Lessor shall deliver to Lender a copy of any 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 (ii) arises either before omitted to be taken by Lender, in good faith, in reliance thereon. Borrower will not subordinate or after Lender acquired title consent to the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all subordination of the Ground LesseeLease to any mortgage, security deed, lease or other interest on or in the Ground Lessor’s rights 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 remedies under 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, including without limitation the Lease shall not terminate or be terminated by the tenant; (b) in the event of any rights action for the foreclosure of first refusal 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 purchase rightssuch action and unless a judgment is obtained therein against the tenant; and (c) in the event that the Ground Lease is terminated as aforesaid, are subject the tenant shall attorn to and subordinate the Ground Lessor or to this Instrumentthe purchaser at the sale of the Project on such foreclosure, as the case may be.
Appears in 1 contract
Sources: Leasehold Deed to Secure Debt and Security Agreement (Meredith Enterprises Inc)
Ground Lease. (a) Ground Lessee and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear of the Ground Lease 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, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise.
(b) 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 With respect to the assets of Ground LesseeLease, 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 Mortgagor agrees:
a. To perform all obligations 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 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 tenant under the Ground Lease and the Property any statute, ordinance, rule or regulation relating thereto, and not to cause or permit any breach thereof. If Mortgagor shall be subject to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless of whether such obligation or liability (i) is an obligation or liability of either ground lessee or ground lessor default under the Ground Lease, or (ii) arises either before or after Lender acquired title to the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all if Mortgagee shall receive notice of the Ground Lessee’s rights and remedies any default by Mortgagor under the Ground Lease, including Mortgagee may, at its option but without limitation any rights obligation to do so, take any action necessary or desirable to cure any such default, Mortgagee being authorized to enter upon the Land for such purposes with or without notice and without becoming a mortgagee in possession; provided, however, Mortgagee will not undertake to cure any default that Mortgagor has commenced and is diligently and expeditiously proceeding to cure. Mortgagor shall, immediately on demand, pay to Mortgagee all costs of first refusal Mortgagee incurred in curing any such default, together with interest on such costs from the date of expenditure until said sums have been paid, at the rate of interest applicable to the principal balance of the Note as specified therein.
b. To give prompt notice to Mortgagee of any default by any party under the Ground Lease (which shall include, but not be limited to, copies of any default notices sent to Landlord or received by Mortgagor), to give prompt notice to Mortgagee of any litigation or arbitration with respect to the Ground Lease, and to furnish to Mortgagee all information that it may reasonably request concerning the performance by Mortgagor of Mortgagor’s obligations under the Ground Lease.
c. That the provisions hereof shall be deemed to be obligations of Mortgagor in addition to Mortgagor’s obligations as tenant with respect to similar matters contained in the Ground Lease; provided, however, the inclusion herein of any obligations relating to similar matters as to which Mortgagor is obligated under the Ground Lease shall not restrict or limit Mortgagor’s obligations to perform promptly all of its obligations as tenant under the Ground Lease, and nothing in this Mortgage shall be construed as requiring Mortgagor or Mortgagee to take or omit to take any action which would cause a default under the Ground Lease.
d. That so long as this Mortgage is in effect, 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 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. If Mortgagor acquires the fee title or any purchase rightsother estate, are title or interest in the Land, this Mortgage shall attach to and be a lien upon the fee title or such other estate so acquired, and such fee title or other estate shall, without further assignment, mortgage or conveyance, become and remain subject to the lien of and subordinate covered by this Mortgage. Mortgagor shall notify Mortgagee of any such acquisition by Mortgagor and, on written request by Mortgagee, shall cause to be executed and recorded all such documents and instruments as may in the reasonable opinion of Mortgagee be required to carry out the intent and meaning hereof.
e. That, so long as this InstrumentMortgage is in effect, no termination or surrender by Mortgagor as tenant under the Ground Lease to Landlord thereunder, shall be valid or effective. The terms of the Ground Lease may not be amended or modified or terminated or subordinated to any mortgage, deed of trust, lease or other interest, either orally or in writing, without the prior written consent of Mortgagee which consent shall not be unreasonably withheld, conditioned or delayed.
f. That if the Ground Lease is for any reason whatsoever terminated prior to the expiration of its term and, if pursuant to any provision of the Ground Lease or otherwise, Mortgagee or its designee shall acquire from Landlord a new lease or other agreement for the use of the Land, Mortgagor shall have no right, title or interest in or to such new lease or other agreement or the estate created thereby.
g. That, so long as this Mortgage is in effect, Mortgagor shall timely exercise all renewal and extension options under the Ground Lease and comply with all conditions precedent to the exercise thereof.
h. That from time to time upon the written request of Mortgagee, Mortgagor shall deliver to Mortgagee estoppel certificates from Landlord in form and substance reasonably acceptable to Mortgagee to the extent Landlord is obligated to deliver such certificates pursuant to the terms of the Ground Lease.
i. Notwithstanding anything contained in the Ground Lease to the contrary, Mortgagor shall not further sublet any portion of the Property (other than as permitted pursuant to Section 3.4 hereof) without prior written consent of Mortgagee. 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 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. Borrower shall or shall cause the T-Mobile Borrower to: (ai) Ground Lessee pay all rents and other sums required to be paid by the T-Mobile Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting as tenant under and pursuant to the Lender provisions of the Ground Lease, the Indenture, the Direct Pay Agreement, and any other Bond Documents, as and when such lien as would cause rent or other sums are payable, (ii) diligently perform and observe all of the fee simple title to the Property to be sold free terms, covenants and clear conditions of the Ground Lease at foreclosure sale. on the part of the T-Mobile Borrower thereunder to be performed and observed, and (iii) promptly notify Lender of the giving of any notice pursuant to the Ground Lessee and Borrower hereby jointly and severally waive any rightLease, arising at law or in equitythe Indenture, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrowerthe Direct Pay Agreement, or anyone holding any other Bond Document of any default by the T-Mobile Borrower or claiming under any other party with respect thereto. The T-Mobile Borrower shall not, without the prior written consent of Lender, surrender the leasehold estate created by the Ground Lease or through themterminate or cancel the Ground Lease or modify, to have their separate estates sold separately upon foreclosurechange, whether under principles of marshalling supplement, alter or otherwise.
(b) Except as specified in Section 11.02amend the Ground Lease, in any action commenced to enforce the Obligations created respect, either orally 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 Lessee, shall be limited to the Property or other property subject to any security interest securing the Notewriting, and (ii) Ground Lessee shall not be personally liable the T-Mobile Borrower hereby assigns to Lender, as further security for the payment of the indebtedness or other Obligations secured by Debt and for the performance and observance of the terms, covenants and conditions of 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 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 Ground Lease Agreement and the Property shall be subject to other Loan Documents, all of the provisions rights, privileges and prerogatives of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising the T-Mobile Borrower, as tenant under the Ground Lease, regardless 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 whether the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease without the prior written consent of Lender shall be void and of no force and effect. If the T-Mobile Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of the T-Mobile Borrower, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, 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 tenant thereunder, to the end that the rights of the T-Mobile Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default, even though the existence of such obligation event of default or liability the nature thereof be questioned or denied by the T-Mobile Borrower or any other Borrower or by any party on behalf of the T-Mobile Borrower or any other Borrower. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Borrower not less than five (i5) is an obligation days prior to the making of any such payment, the performance of any such act, or liability the taking of either ground lessee or ground lessor 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 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. The T-Mobile Borrower hereby agrees to pay to Lender within five (5) Business Day of request therefor, all such sums so paid and expended by Lender, together with interest thereon from the date of such payment at the Default Rate (as defined in the Note). All sums so paid and expended by Lender and the interest thereon shall be secured by this Mortgage. If the landlord under the Ground Lease shall deliver to Lender a copy of any notice of default sent by said landlord to Mortgagor, as tenant under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or (ii) arises either before or after Lender acquired title omitted to be taken by Lender, in good faith, in reliance thereon. Unless T-Mobile Borrower shall exercise its option to purchase the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under T-Mobile Property pursuant to the Ground Lease, including without limitation T-Mobile Borrower shall exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any rights time within six (6) months of first refusal the last day upon which any such option may be exercised, and T-Mobile Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of T-Mobile Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. T-Mobile 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 purchase rightspart of the T-Mobile Property, are subject to unless, in each such case, the written consent of Lender shall have been first had and subordinate to this Instrumentobtained.
Appears in 1 contract
Ground Lease. (a) Ground Lessee Borrower shall:
(i) pay all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by Borrower, as tenant under and pursuant to the Lender provisions of the Ground Lease, as and when such lien as would cause rent or other charge is payable,
(ii) diligently perform and observe all of the fee simple title to the Property to be sold free terms, covenants and clear conditions of the Ground Lease 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, on the part of Borrower, or anyone holding or claiming under or through themas tenant thereunder, to have their separate estates sold separately upon foreclosurebe performed and observed, whether 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 principles the Ground Lease to Borrower of marshalling any default by Borrower in the performance or otherwiseobservance 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.
(b) Except as specified in Section 11.02Borrower shall not, without the prior consent of Lender, surrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend the Ground Lease, in any action commenced to enforce the Obligations created material respect, either orally 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 Lessee, shall be limited to the Property or other property subject to any security interest securing the Notewriting, and (ii) Ground Lessee shall not be personally liable Borrower hereby assigns to Lender, as further security for the payment and performance of the indebtedness 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 other Obligations secured 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 this Instrumentthe Ground Lease or termination, nor cancellation, modification, change, supplement, alteration or amendment of the Ground Lease in any material respect without the prior consent of Lender 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 void and of Ground Lessee other than the Property or other property subject to any security interest securing the Noteno force and effect.
(c) If Borrower shall default in the performance or observance of any material term, covenant or condition of the Ground Lessee Lease on the part of Borrower, as tenant thereunder, to be performed or observed, 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 each agree 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 material terms, covenants and conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Borrower, to the end that neither this Instrument nor any obligation the rights of Borrower in, to and under the Ground Lessee 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 hereunder will be released, impaired or subordinated by any amendment to this Instrument party on behalf of Borrower. If Lender shall make any payment or perform 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 whichtake action in accordance with the preceding sentence, but 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 this provisionthe 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, would all such sums so releasepaid and expended by Lender, impair, or subordinatetogether 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) Ground Lessee and Ground Lessee’s interest in If the lessor under the Ground Lease and the Property shall be subject deliver to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability a copy of any kind or nature based upon or arising notice of default sent by said lessor to Borrower, as tenant under the Ground Lease, regardless of whether such obligation notice shall constitute full protection to Lender for any action taken or liability (i) is an obligation omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall exercise each individual option, if any, to extend or liability of either ground lessee or ground lessor under renew the Ground Lease, or (ii) arises either before or after Lender acquired title to the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all term of the Ground Lessee’s rights 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 remedies under 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 the 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 LeaseLease to any mortgage, including without limitation any rights of first refusal security deed, lease or other interest on or in the landlord’s interest in all or any purchase rightspart of the Property, are subject to unless, in each such case, the written consent of Lender shall have been first had and subordinate to this Instrumentobtained.
Appears in 1 contract
Sources: Loan Agreement (Carter Validus Mission Critical REIT, Inc.)
Ground Lease. (a) Ground Lessee and Borrower have executed this Instrument mortgaging their separate estates in To the Property for the purpose best of granting to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear of the Ground Lease 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, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise.
(b) 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 LesseeSeller’s interest in the Property or other property subject to any security interest securing the Note. Subject to Section 11.01knowledge, (i) the Ground Lease is in full force and effect, (ii) the Ground Lease has not been amended, and (iii) there are no defaults by Seller thereunder. Notwithstanding and without limiting the foregoing, (i) if any execution on of the 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 of its obligations under this Agreement that survive Closing, and Purchaser nonetheless closes the transactions hereunder and purchases the Property, then Seller shall have no liability or obligation respecting such judgment false or decree, with respect to the assets of Ground Lessee, shall be limited to the Property inaccurate representations or warranties or other property subject breach or default (and any cause of action resulting therefrom shall terminate upon the Closing) in the event that on or prior to any security interest securing Closing, Purchaser shall have had actual knowledge of the Note, false or inaccurate representations or warranties or other breach or default and (ii) Ground Lessee if any of the representations or warranties of Seller contained in this Agreement or in any document or instrument delivered in connection herewith are false or inaccurate and prior to the expiration of the Due Diligence Period Purchaser shall have had knowledge of the false or inaccurate representations or warranties, then Seller shall have no liability or obligation respecting such false or inaccurate representations or warranties (and Purchaser shall have no cause of action or right to terminate this Agreement with respect thereto), and such representations and warranties shall be deemed modified to the 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 personally liable for construed, by imputation or otherwise, to refer to the payment knowledge of the indebtedness Seller or other Obligations secured by this Instrumentany parent, nor shall execution on any judgment subsidiary or decree resulting from any action affiliate of Seller or to enforce the Obligations be or be caused to be a lien on any other asset officer, agent, manager, representative or employee of Ground Lessee other than Seller or to impose upon ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ any duty to investigate the Property or other property subject matter to any security interest securing the Note.
(c) Ground Lessee and Borrower 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, Borrowerwhich such actual knowledge, or any other partythe absence thereof, or any other act or thing whichpertains. Notwithstanding anything to the contrary contained in this Agreement, but for this provision, would so release, impair, or subordinate.
(d) Ground Lessee and Ground Lessee’s interest in the Ground Lease and the Property ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ shall be subject to all of the have no personal liability hereunder. The provisions of this Section 5.017.1.1 shall survive the Closing for a period of two hundred seventy (270) days.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless of whether such 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 the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Ground Lease. (a) Ground Lessee Borrower shall (i) pay all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by Borrower, as tenant under and pursuant to the Lender such lien as would cause provisions of the fee simple title to Ground Lease, (ii) diligently perform and observe all of the Property to be sold free terms, covenants and clear conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed and observed, and (iii) promptly notify Administrative Agent of the giving of any written notice by the landlord under the Ground Lease to Borrower of any default by 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 Administrative Agent a true copy of each such notice within three (3) Business Days of receipt and (iv) promptly notify Administrative Agent of any bankruptcy, reorganization or insolvency of the landlord under the Ground Lease or of any notice thereof, and deliver to Administrative Agent a true copy of such notice within three (3) Business Days of Borrower’s receipt. Borrower shall not, without the prior consent of the Requisite Lenders, surrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend the Ground Lease, either orally or in writing. Borrower hereby assigns to Administrative Agent for the ratable benefit of the Lenders, 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 Security Instrument, 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 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 Lenders 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 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, Administrative Agent or Lenders 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 Borrower to be performed or observed on behalf of Borrower, to the end that the rights of 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 Administrative Agent a copy of any notice of default under the Ground Lease, such notice shall constitute full protection to Administrative Agent for any action taken or omitted to be taken by Administrative Agent, in good faith, in reliance thereon. Borrower shall exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Administrative Agent made at foreclosure sale. Ground Lessee any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby jointly expressly authorizes and severally waive appoints Administrative Agent its attorney in fact to exercise any rightsuch option in the name of and upon behalf of Borrower, arising at law 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 equitythe landlord’s interest in all or any part of the Property, whether presently existing or subsequently accruingunless, whether to Ground Lesseein each such case, Borrower, or anyone holding or claiming under or through them, to the written consent of Requisite Lenders shall have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwisebeen first had and obtained.
(b) Except as specified Notwithstanding anything contained 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 Lease to the extent contrary, Borrower shall not further sublet any portion of Ground Lessee’s interest in the Property or (other property subject to any security interest securing the Note. Subject than as permitted pursuant to Section 11.01, 4.14 hereof as a Lease) without prior written consent of Administrative Agent. Each such sublease hereafter made shall provide that (i) any execution on such judgment in the event of the termination of the Ground Lease, the sublease shall not terminate or decree, with respect to be terminable by the assets of Ground Lessee, shall be limited to the Property or other property subject to any security interest securing the Note, and lessee thereunder; (ii) Ground Lessee in the event of any action for the foreclosure of the Security Instrument, the sublease shall not terminate or be personally liable for terminable by the payment lessee thereunder by reason of the indebtedness 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 other Obligations secured by 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 Instrumentsubsection, nor such sublease shall execution on any judgment or decree resulting from any action to enforce the Obligations be or be caused deemed to be a lien on any other asset of Ground Lessee other than included in the Property or other property subject to any security interest securing the NoteProperty.
(c) So long as any portion of the Debt shall remain unpaid, unless Administrative Agent shall otherwise consent, the fee title to the Property and the leasehold estate therein created pursuant to the provisions of the Ground Lessee Lease shall not merge but shall always be kept separate and Borrower each agree that neither this Instrument nor any obligation distinct, notwithstanding the union of Ground Lessee and Borrower hereunder will be releasedsuch estates in Borrower, impaired Administrative Agent, or subordinated by any amendment to this Instrument or in any other document person by purchase, operation of law or extension otherwise. Administrative Agent reserves the right, at any time, to release from the lien of time or waiver the Mortgage portions of right or remedy as to Ground Lesseethe Property, Borrower, or any other party, or any other act or thing whichincluding, but for not limited to, the leasehold estate created by the Ground Lease, with or without consideration, at Administrative Agent’s election, without waiving or affecting any of its rights under this provision, would Agreement or the other Loan Documents and any such release shall not affect Administrative Agent’s rights in connection with the portion of the Property not so release, impair, or subordinatereleased.
(d) If the Ground Lessee 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, promptly after obtaining notice thereof, shall give notice thereto to Administrative Agent, (ii) Borrower, without the prior written consent of Requisite Lenders, 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 Security Instrument and the other Loan Documents and all the liens, terms, covenants and conditions of this Agreement, the Note, the Security Instrument 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 LesseeLease or other termination of the Ground Lease. In addition, Borrower hereby assigns irrevocably to Administrative 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 Administrative 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 Administrative Agent’s request, Borrower shall assign its interest in the Ground Lease and to Administrative Agent in lieu of rejecting the Property shall be subject Ground Lease, upon receipt by Borrower of notice from Administrative Agent of such request together with Administrative Agent’s agreement to all cure any existing defaults of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising Borrower under the Ground Lease, regardless of whether such 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 the Property.
(f) Borrower hereby agrees that if the Ground Lessee and Borrower each hereby acknowledge and agree that all Lease is terminated for any reason in the event of the rejection or disaffirmance of the Ground LesseeLease pursuant to the Bankruptcy Code or any other law affecting creditor’s rights and remedies under rights, any property not removed by the Borrower as permitted or required by the Ground Lease, including without limitation shall at the option of Administrative Agent be deemed abandoned by Borrower, provided that Administrative Agent may remove any rights such property required to be removed by Borrower pursuant to the Ground Lease and all out-of-pocket costs and expenses associated with such removal shall be paid by Borrower within five (5) days of first refusal 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 any purchase rightsotherwise, are subject Administrative 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 and subordinate to this Instrumentsuch other lease or the leasehold estate created thereby.
Appears in 1 contract
Sources: Loan Agreement (Alexanders Inc)
Ground Lease. (a) Ground Lessee Borrower shall:
(i) pay all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by Borrower, as tenant under and pursuant to the Lender provisions of the Ground Lease, as and when such lien as would cause rent or other charge is payable,
(ii) diligently perform and observe all of the fee simple title to the Property to be sold free terms, covenants and clear conditions of the Ground Lease 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, on the part of Borrower, or anyone holding or claiming under or through themas tenant thereunder, to have their separate estates sold separately upon foreclosurebe performed and observed, whether at least five (5) 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 principles the Ground Lease to Borrower of marshalling any default by Borrower in the performance or otherwiseobservance 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.
(b) Except as specified in Section 11.02Borrower shall not, without the prior consent of Lender, surrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend the Ground Lease, in any action commenced to enforce the Obligations created material respect, either orally 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 Lessee, shall be limited to the Property or other property subject to any security interest securing the Notewriting, and (ii) Ground Lessee shall not be personally liable Borrower hereby assigns to Lender, as further security for the payment and performance of the indebtedness Obligations and for the performance and observance of the terms, covenants and conditions of the Deed of Trust, 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 other Obligations secured 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 this Instrumentthe Ground Lease or termination, nor cancellation, modification, change, supplement, alteration or amendment of the Ground Lease in any material respect without the prior consent of Lender 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 void and of Ground Lessee other than the Property or other property subject to any security interest securing the Noteno force and effect.
(c) If Borrower shall default in the performance or observance of any material term, covenant or condition of the Ground Lessee Lease on the part of Borrower, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of the Deed of Trust, this Agreement and the other Loan Documents, and without waiving or releasing Borrower each agree 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 material terms, covenants and conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Borrower, to the end that neither this Instrument nor any obligation the rights of Borrower in, to and under the Ground Lessee 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 hereunder will be released, impaired or subordinated by any amendment to this Instrument party on behalf of Borrower. If Lender shall make any payment or perform 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 whichtake action in accordance with the preceding sentence, but 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, 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 time, without notice, for this provisionthe 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 immediately and without demand, would all such sums so releasepaid and expended by Lender, impair, or subordinatetogether 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 Deed of Trust.
(d) Ground Lessee and Ground Lessee’s interest in If the lessor under the Ground Lease and the Property shall be subject deliver to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability a copy of any kind or nature based upon or arising notice of default sent by said lessor to Borrower, as tenant under the Ground Lease, regardless of whether such obligation notice shall constitute full protection to Lender for any action taken or liability (i) is an obligation omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall exercise each individual option, if any, to extend or liability of either ground lessee or ground lessor under renew the Ground Lease, or (ii) arises either before or after Lender acquired title to the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all term of the Ground Lessee’s rights Lease upon demand by Lender made, and remedies under 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 the 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 LeaseLease to any mortgage, including without limitation any rights of first refusal security deed, lease or other interest on or in the landlord’s interest in all or any purchase rightspart of the Property, are subject to unless, in each such case, the written consent of Lender shall have been first had and subordinate to this Instrumentobtained.
Appears in 1 contract
Sources: Loan Agreement (William Lyon Homes)
Ground Lease. (a) Mortgagor will: (i) pay the rent required by the Ground Lessee Lease as the same becomes due and Borrower payable; (ii) promptly perform and observe all of the material covenants, agreements, obligations and conditions required to be performed and observed by Mortgagor under the Ground Lease, and do all things necessary to preserve and keep unimpaired its rights thereunder; (iii) promptly notify Lender in writing of the commencement of 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 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 executed this Instrument mortgaging their separate estates 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 Mortgagor in the Property for performance or observance of any of the purpose terms, covenants, or conditions on the part of granting to the Lender such lien as would cause the fee simple title to the Property Mortgagor to be sold free and clear 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 at foreclosure sale. and promptly cause a copy of each such notice to be delivered to Mortgagee; and (viii) promptly notify Mortgagee in writing of any request made by either party to the Ground Lessee Lease to the other party thereto for arbitration or appraisal proceedings pursuant to the Ground Lease, and Borrower hereby jointly of the institution of any arbitration or appraisal proceedings and severally waive any right, arising at law promptly deliver to Mortgagee a copy of the determination of the arbitrators or appraisers in equity, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwiseeach such proceeding.
(b) Except as specified 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 Mortgagor's leasehold estate and interest therein, nor terminate or cancel the Ground Lease; and will not, without the prior written consent of Mortgagee, modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, and as further security for the repayment of the indebtedness hereby secured and for the performance of the covenants, agreements, obligations and conditions herein and in the Ground 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, without the prior written consent thereto by Mortgagee, shall 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 11.02365(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 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 against Mortgagor or any action commenced lessor under the Ground Lease including, without limitation, the right to enforce assume or reject, or to compel the Obligations created assumption or arising rejection of the Ground Lease 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 Mortgagor or Mortgagor's bankruptcy trustee without the prior written consent thereto by Mortgagee shall be void and of no force and effect. No release or forbearance of any of Mortgagor's obligations as lessee under the Ground Lease, whether pursuant to the Ground Lease or otherwise, shall release Mortgagor from any of its obligations under this InstrumentMortgage, 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 11.01including, (i) any execution on such judgment or decreebut not limited to, Mortgagor's obligations with respect to the assets of Ground Lessee, 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 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 rent as to Ground Lessee, Borrower, or any other party, or any other act or thing which, but provided for this provision, would so release, impair, or subordinate.
(d) Ground Lessee and Ground Lessee’s interest in the Ground Lease and the Property shall be subject to observance and performance of all of the provisions covenants, agreements, obligations and conditions contained in the Ground Lease to be observed and performed by the 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 Section 5.01such estates either in Mortgagor or in a third party by purchase or otherwise.
(ec) Under Upon the written demand of Mortgagee, Mortgagor will promptly deliver to Mortgagee a certificate stating that the Ground Lease is in full force and effect, is unmodified, that no circumstances notice of termination thereon has been served on Mortgagor, stating the date to which 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 Lender or any deliver to Mortgagee such certificate within twenty (20) days after Mortgagee's demand therefor.
(d) Mortgagor will furnish to Mortgagee upon demand, proof of its successors or assigns have any obligation or liability payment of any kind or nature based upon or arising under all items which are required to be paid by Mortgagor pursuant to the Ground Lease, regardless of whether such 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 the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Sources: Mortgage, Assignment of Rents, Security Agreement (Glimcher Realty Trust)
Ground Lease. (a) Ground Lessee Leasehold Borrower shall (i) pay all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by Leasehold Borrower, as tenant under and pursuant to the Lender such lien as would cause provisions of the fee simple title to Ground Lease, (ii) diligently perform and observe all of the Property to be sold free terms, covenants and clear conditions of the Ground Lease 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, on the part of Leasehold Borrower, or anyone holding or claiming under or through themas tenant thereunder, to have their separate estates sold separately upon foreclosurebe performed and observed, whether under principles (iii) promptly notify Lender of marshalling the giving of any written notice by the ground lessor to Leasehold Borrower of any default by Leasehold Borrower in the performance or otherwiseobservance of any of the terms, covenants or conditions of the Ground Lease on the part of Leasehold Borrower, as tenant thereunder, to be performed or observed, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt, and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the ground lessor or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Leasehold Borrower’s receipt.
(b) Except Leasehold Borrower shall not, without the prior consent of Lender, surrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend the Ground Lease, either orally or in writing. Leasehold Borrower hereby assigns to Lender, 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 further 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 Lessee, 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 and performance of the indebtedness or other Obligations secured by this obligations and for the performance and observance of the terms, covenants and conditions of the Security Instrument, nor this Agreement and the other Loan Documents, all of the rights, privileges and prerogatives of Leasehold 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 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 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 void and of Ground Lessee other than the Property or other property subject to any security interest securing the Noteno force and effect.
(c) If Leasehold Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lessee Lease on the part of Leasehold 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 Borrowers from any of their 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 Leasehold Borrower to be performed or observed on behalf of Leasehold Borrower, to the end that the rights of Leasehold Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the ground lessor shall deliver to Lender a copy of any 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. Leasehold Borrower shall exercise each agree that neither this Instrument nor individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any obligation time within one (1) year prior to the last day upon which any such option may be exercised, and each Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Leasehold Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Leasehold Borrower will not subordinate or consent to the subordination of the Ground Lessee and Borrower hereunder will be releasedLease to any mortgage, impaired security deed, lease or subordinated by any amendment to this Instrument other interest on or in the landlord’s interest in all or any other document or extension part of time or waiver the Property, unless, in each such case, the written consent 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 subordinateLender shall have been first had and obtained.
(d) Ground Lessee and Ground Lessee’s Lender is permitted the opportunity (including, where necessary, sufficient time to gain possession of the interest in of Leasehold Borrower under the Ground Lease and the Property shall be subject Lease) to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or cure any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising default under the Ground Lease, regardless which is curable after the receipt of whether notice of any of the default before the ground lessor may terminate the Ground Lease. Notwithstanding anything contained in the Ground Lease to the contrary, Leasehold Borrower shall not further sublet any portion of the Property (other than as permitted pursuant to Section 4.14 hereof) without prior written consent of Lender. Each such obligation or liability 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 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 an obligation or liability of either ground 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 or ground under the sublease shall attorn to the lessor under the Ground LeaseLease or to the purchaser at the sale of the Property on such foreclosure, or (ii) arises either before or after Lender acquired title 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.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Ground Lease. (a) With respect to each Ground Lessee Lease, Borrower covenants and Borrower have executed this Instrument mortgaging their separate estates in agrees as follows: (i) to promptly and faithfully observe, perform and comply with all the Property for terms, covenants and provisions thereof on its part to be observed, performed and complied with, at the purpose 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 granting which there would reasonably be expected to be a default under any of the terms thereof; (iii) not to terminate (pursuant to the Lender such lien as would cause terms thereof or otherwise), cancel, surrender, modify, amend or in any way alter or permit the fee simple title alteration of any of the terms thereof and not to release the Property to be sold free and clear of Ground Lessor under the Ground Lease at foreclosure sale. Ground Lessee and Borrower hereby jointly and severally waive from any rightobligations imposed upon it thereby without the consent of Lender, arising at law not to be unreasonably withheld, delayed or conditioned (provided that, notwithstanding anything contained herein or in equityany other Loan Document, whether presently existing 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 subsequently accruing, whether in part nor sublet the premises demised under the Ground Lease in whole except in accordance with the provisions of this Agreement; (v) to Ground Lessee, Borrower, or anyone holding or claiming under or through themthe extent Borrower has actual knowledge of the same, 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 other 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 their separate estates sold separately upon foreclosureten (10) Business Days from receipt of written request together with such other information as is necessary for Lender’s review of the request, whether under principles to approve or disapprove such matter, provided that the front page of marshalling 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 otherwisedisapprove 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) Except as specified In the event of any (A) default by Borrower in Section 11.02the 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 rent and other 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 commenced to enforce the Obligations created or arising by Lender shall release Borrower from any default under this InstrumentAgreement. Borrower shall, on demand, reimburse Lender for all advances made and expenses incurred by Lender in curing any resulting judgment 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 decree expense is incurred, to and including the date the same is paid and such monies so expended by Lender with interest thereon shall be enforceable against secured by this Agreement.
(c) If Borrower acquires the fee title or any other estate, title or interest in any Ground Lessee 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 extent of 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, obtain and deliver to Lender from time to time within ten (10) Business Days after written demand by Lender, an estoppel certificate from any 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 decreeLessor setting forth, with respect to the assets related Ground Lease (i) the name of Ground Lesseethe tenant thereunder, 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 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 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 the Property shall be subject to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising additional rent and other charges payable under the Ground Lease, regardless of whether such obligation or liability (iiv) is an obligation or liability of either ground lessee or ground lessor the date to which all rental charges have been paid by the tenant under the Ground Lease, and (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 (ii1) arises either before or after Lender acquired title to the Propertytime per year.
(f) Notwithstanding anything to the contrary contained herein, this Agreement shall not constitute an assignment of any Ground Lessee 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 hereby acknowledge and agree Ground Lessor under the applicable Ground Lease to the end that Borrower may enjoy all of the Ground Lessee’s rights and remedies granted to it under the Ground Lease, including without limitation 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. If, pursuant to any Ground Lease, the related Ground Lessor shall deliver to Lender a copy of any notice of default given to Borrower, as lessee under 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 and in reliance thereon.
(i) Borrower shall 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 first refusal 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 be performed or observed shall have occurred and be continuing, Lender 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 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 by the related Ground Lessor pursuant to the Bankruptcy Code, or any purchase other law affecting creditor’s rights, are subject (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 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 subordinate 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 assigns irrevocably to Lender Borrower’s rights to treat any Ground Lease as terminated pursuant to Section 365(h) of the Bankruptcy Code and 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 all 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-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 any 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 prosecute any proofs of claim, complaints, motions, applications, notices and other documents in any case in respect of 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 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 InstrumentAgreement. 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 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 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) 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 Lessee Lease, and Borrower shall give prompt written notice to Lender; provided, however, Borrower shall not be required to cause Mortgage Borrower to exercise any particular such option or right to renew or extend to the extent Borrower shall have executed this Instrument mortgaging their separate estates 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 under the Mortgage Loan Documents, exercise the option or right as Mortgage Borrower’s or Borrower’s agent and attorney-in-fact, as provided above in Lender’s own name or in the Property name of and on behalf of a nominee of Lender, after the occurrence of an Event of Default for which Lender has accelerated the purpose Loan, as Lender may determine in the exercise of granting to the Lender such lien as would cause the fee simple title to the Property to be sold free its sole and clear of the Ground Lease 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, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwiseabsolute discretion.
(b) Except as specified in Section 11.02Borrower shall not (and shall not permit or cause Mortgage Borrower to) waive, excuse, condone or in any action commenced to enforce 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 Obligations created or arising under this Instrumentrelated Ground Lease without the prior written consent of Lender, 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 Lessee, shall be limited to the Property or other property subject to any security interest securing the Note, and (ii) Ground Lessee which consent shall not be personally liable for the payment of the indebtedness unreasonably withheld, conditioned 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 Notedelayed.
(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 surrender, termination or forfeiture of, or change, modify or amend the Ground Lessee and Borrower each agree that neither this Instrument nor any obligation Lease. Consent to one amendment, 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 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 LesseeLessor’s interest in the Ground Lease and the Property by Mortgage Borrower, Borrower or any Affiliate of Mortgage Borrower or Borrower shall be subject accomplished by Mortgage Borrower or Borrower in such a manner so as to all avoid a merger of the provisions interests of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under lessor and lessee in the Ground Lease, regardless of whether unless consent to such obligation or liability (i) merger 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 the Propertygranted by Lender.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Ground Lease. (a) Ground Lessee By reason of that certain underlying lease of October 1,1992, by and Borrower have executed this Instrument mortgaging their separate estates between Lee G. Tipton and Margaret B. Tipton and the A.H. Root Building Lim▇▇▇▇ ▇▇▇▇▇▇▇▇y Com▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇ ▇imited liability company, notice of such underlying leases provided hereby and in the Property public records for the purpose City and County of granting 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 Lender 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 lien as would cause instruments required by Prime Landlord in the fee simple title event Tenant fails to execute said instruments within five (5) days after thereof. Said notice from Landlord demanding the Property to execution notice may be sold free given in the manner hereinafter provided for giving notice. As of the date of this Lease, Landlord represents and clear warrants that Landlord is not in default of any of the terms and conditions of the Ground Lease at foreclosure saleand that the terms and conditions of this Lease will not violate any terms or conditions of the Ground Lease. Should the Ground Lessee Lease be terminated for reasons other that condemnation, fire or other damage, and Borrower hereby jointly 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 severally waive 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 right, arising at law act or in equity, whether presently existing omission of Landlord; (ii) subject to any offsets or subsequently accruing, whether to Ground Lessee, Borrowerdefenses which Tenant might have against Landlord, or anyone holding (iii) bound by any rent or claiming under or through themadditional rent which Tenant may have paid to Landlord more than one (1) month in advance. Should Landlord, to have their separate estates sold separately upon foreclosureduring the term of this Lease, whether under principles of marshalling or otherwise.
(b) Except as specified in Section 11.02, in any action commenced to enforce acquire 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 Prime Landlord's fee 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 Lessee, 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 demised 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 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 Ground Lease and the Property shall be subject to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless 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 whether 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 obligation or liability (i) is an obligation or liability attornment by Tenant, under each of either ground lessee or ground lessor 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 Ground Lease, or (ii) arises either before or after Lender acquired title to the Property.
(f) Ground Lessee same terms and Borrower each hereby acknowledge and agree that all conditions as set forth in this Lease notwithstanding termination of the Ground Lessee’s rights Lease for default on the part of Landlord provided that at such time Tenant is not in default of its obligations herein and remedies under that Tenant attorn to Prime Landlord and thereafter keep and perform the Ground terms and conditions of this Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Sources: Standard Building Lease (Integrated Information Systems Inc)
Ground Lease. (a) 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 Lessee 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 not be required to exercise any particular such option or right to renew or extend to the extent Borrower shall have executed this Instrument mortgaging their separate estates 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 such option or right as aforesaid, 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 Property name of and on behalf of a nominee of Lender, after the occurrence of an Event of Default for which Lender has accelerated the purpose Loan, as Lender may determine in the exercise of granting to the Lender such lien as would cause the fee simple title to the Property to be sold free its sole and clear of the Ground Lease 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, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwiseabsolute discretion.
(b) Except as specified in Section 11.02Borrower shall not waive, excuse, condone or in any action commenced to enforce 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 Obligations created or arising under this Instrumentrelated Ground Lease without the prior written consent of Lender, 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 Lessee, shall be limited to the Property or other property subject to any security interest securing the Note, and (ii) Ground Lessee which consent shall not be personally liable for the payment of the indebtedness unreasonably withheld, conditioned 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 Notedelayed.
(c) Borrower shall not, without Lender’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modify or amend the Ground Lessee and Borrower each agree that neither this Instrument nor any obligation Lease. Consent to one amendment, 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 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 LesseeLessor’s interest in the Ground Lease and the Property by Borrower or any Affiliate of Borrower shall be subject accomplished by Borrower in such a manner so as to all avoid a merger of the provisions interests of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under lessor and lessee in the Ground Lease, regardless of whether unless consent to such obligation or liability (i) merger 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 the Propertygranted by Lender.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Sources: Loan Agreement (New York REIT, Inc.)
Ground Lease. (a) Ground Lessee Borrower shall (i) pay (or cause to be paid) all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by Borrower, as tenant under and pursuant to the Lender such lien as would cause provisions of the fee simple title to Ground Lease, (ii) diligently perform and observe all of the Property to be sold free terms, covenants and clear conditions of the Ground Lease 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, on the part of Borrower, or anyone holding or claiming under or through themas tenant thereunder, to have their separate estates sold separately upon foreclosurebe performed and observed, whether (iii) promptly notify Lender of the giving of any written notice by the landlord under principles the Ground Lease to Borrower of marshalling or otherwise.
(b) 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 default by Borrower in the Property performance or other property subject observance of any of the terms, covenants or conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to any security interest securing the Note. Subject be performed or observed, and deliver to Section 11.01, Lender a true copy of each such notice within five (i5) any execution on such judgment or decree, with respect to the assets Business Days of Ground Lessee, shall be limited to the Property or other property subject to any security interest securing the Notereceipt, and (iiiv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under the Ground Lessee Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Borrower’s receipt. Borrower shall not be personally liable not, without the prior consent of Lender, surrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend the Ground Lease, either orally or in writing. Borrower hereby assigns to Lender, as further security for the payment and performance of the indebtedness or other Obligations secured by this obligations and for the performance and observance of the terms, covenants and conditions of the Security 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 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 Ground Lease Agreement and the Property shall be subject to other Loan Documents, all of the provisions rights, privileges and prerogatives of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising Borrower, as tenant under the Ground Lease, regardless 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 whether such obligation the leasehold estate created by the Ground Lease or liability (i) is an obligation termination, cancellation, modification, change, supplement, alteration or liability amendment of either ground lessee the 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 ground lessor observance of any term, covenant or condition of the Ground Lease on the part of 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 Borrower to be performed or observed on behalf of Borrower, to the end that the rights of 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 notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or (ii) arises either before omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall exercise each individual option, if any, to extend or after Lender acquired title to renew the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all term of the Ground LesseeLease upon demand by Lender made at any time not more than one (1) year prior to, and not less than one (1) month 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 consent to any mortgage, security deed, lease or other interest on or in the landlord’s rights interest in all or any part of the Property, nor will it subordinate or consent to the subordination of the Ground Lease to any such interest, unless, in each such case, the written consent of Lender shall have been first had and remedies under obtained. 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 4.14 hereof) without prior written consent of Lender. Each such sublease hereafter made shall provide that (i) in the event of the termination of the Ground Lease, including without limitation the sublease shall not terminate or be terminable by the lessee thereunder; (ii) in the event of any rights action for the foreclosure of first refusal 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 purchase rightssuch action and unless a judgment is obtained therein against such lessee; and (iii) in the event that the Ground Lease is terminated as aforesaid, are subject the lessee under the sublease shall attorn to and subordinate 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 Instrumentsubsection, such sublease shall be deemed to be included in the Property.
Appears in 1 contract
Sources: Loan Agreement (American Realty Capital Trust III, Inc.)
Ground Lease. (a) (1) The Ground Lessee 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, (iii) all rents, additional rents and other sums due and payable under the Ground Lease have been paid in full, (iv) neither Borrower have executed this Instrument mortgaging their separate estates in nor the Property lessor under the Ground Lease has commenced any action or given or received any notice for the purpose of granting terminating the Ground Lease, (v) to Borrower’s knowledge, the Lender lessor under any Ground Lease, as debtor in possession or by a trustee for such lien as would cause lessor, has not given any notice of, and Borrower has not consented to, any attempt to sell or transfer the fee simple title to the Property to be sold Ground Lessor Estate free and clear of the Ground Lease at foreclosure sale. under Section 363(f) (or any similar provision) of the U.S. Bankruptcy Code, and (vi) to Borrower’s knowledge, the lessor under any Ground Lessee Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and Borrower hereby jointly and severally waive the Ground Lessor Estate is not an asset being administered in any rightvoluntary or involuntary bankruptcy, arising at law reorganization or in equity, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise.insolvency proceeding;
(b) Except as specified in Section 11.02, in any action commenced to enforce The Ground Lease permits 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 Lessee, 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 Instrumentlessee and/or sublessee, nor shall execution on any judgment or decree resulting from any action to enforce the Obligations be or be caused as applicable, thereunder to be a lien on any other asset of Ground Lessee other than encumbered by the Property or other property subject to any security interest securing the Note.Mortgages;
(c) The Ground Lessee and Borrower each agree that neither this Instrument nor any obligation Lease or a memorandum of Ground Lessee and Borrower hereunder will be releasedLease has been recorded and, impaired or subordinated by any amendment to this Instrument or any other document or extension of time or waiver of right or remedy except as to Ground Lesseeindicated in the Title Insurance Policy, 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 Ground Lease and the Property shall be is not subject to all any Lien (other than the applicable Mortgage);
(d) Except as set forth on Schedule 4.44, Borrower’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 provisions 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 Section 5.01.a REMIC Trust) upon notice to, but without the need to obtain the consent of, such lessor;
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability Except as set forth on Schedule 4.44, the Ground Lease requires the lessor thereunder to give notice of any kind default by Borrower to Lender provided Borrower gives such lessor written notice of Lender’s address, and the Ground Lease further provides that any right of Borrower or nature based upon the lessor under the Ground Lease to terminate the Ground Lease shall not be effectively exercised by Borrower or arising 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 by Lender;
(f) Except as set forth on Schedule 4.44, Lender is permitted an opportunity (including, where necessary, sufficient time to gain possession of the interest of Borrower under ▇▇▇▇▇▇▇▇.▇▇.▇▇▇▇▇▇▇▇ 77 the Ground Lease) to cure any default under the Ground Lease, regardless which is curable after the receipt of whether such obligation or liability 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) is an obligation 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 liability part of either ground lessee the applicable Ground Leased Property or ground lessor under 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, or ;
(iij) arises either before or after 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 acquired title to the Property.
exercise of such purchase option (f) Ground Lessee including, without limitation, the execution of any amendments to the applicable Mortgage and Borrower each hereby acknowledge and agree that all a date down of the Ground Lesseeapplicable Title Insurance Policy, together with any endorsements necessary to insure Lender’s rights and remedies under Lien over the Ground Lease, including without limitation any rights fee portion of first refusal or any purchase rights, are subject to and subordinate to this Instrumentthe applicable Property).
Appears in 1 contract
Ground Lease. (a) Leasehold Borrower will: (i) pay the rent required by the Ground Lessee Lease as the same becomes due and payable; (ii) promptly perform and observe all of the material covenants, agreements, obligations and conditions required to be performed and observed by Leasehold Borrower under the Ground Lease, and do all things necessary to preserve and keep unimpaired its rights thereunder; (iii) promptly notify Lender in writing of the commencement of 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 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 executed this Instrument mortgaging their separate estates 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 Leasehold Borrower in the Property for performance or observance of any of the purpose terms, covenants, or conditions on the part of granting to the Lender such lien as would cause the fee simple title to the Property Leasehold Borrower to be sold free and clear 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 at foreclosure sale. and promptly cause a copy of each such notice to be delivered to Lender; and (viii) promptly notify Lender in writing of any request made by either party to the Ground Lessee Lease to the other party thereto for arbitration or appraisal proceedings pursuant to the Ground Lease, and Borrower hereby jointly of the institution of any arbitration or appraisal proceedings and severally waive any right, arising at law promptly deliver to Lender a copy of the determination of the arbitrators or appraisers in equity, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwiseeach such proceeding.
(b) Except Leasehold Borrower will not surrender the Ground Lease or Leasehold Borrower's leasehold estate and interest therein, nor terminate or cancel the Ground Lease; and except as specified set forth in the Loan Agreement, will not, without the prior written consent of Lender, modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, and as further security for the repayment of the indebtedness hereby secured and for the performance of the covenants, agreements, obligations and conditions herein and in the Ground 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, 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 will not reject the Ground Lease pursuant to Section 11.02365(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 Ground Lease 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 result of the commencement of a proceeding under the federal bankruptcy laws by or against Leasehold Borrower or any action commenced lessor under the Ground Lease, including, without limitation, the right to enforce assume or reject, or to compel the Obligations created assumption or arising rejection of the Ground Lease 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 shall be void and of no force and effect. No release or forbearance of any of Leasehold Borrower's obligations as lessee under the Ground Lease, whether pursuant to the Ground Lease or otherwise, shall release Leasehold Borrower from any of its obligations under this Security 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 11.01including, (i) any execution on such judgment or decreebut not limited to, Leasehold Borrower's obligations with respect to the assets of Ground Lessee, 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 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 rent as to Ground Lessee, Borrower, or any other party, or any other act or thing which, but provided for this provision, would so release, impair, or subordinate.
(d) Ground Lessee and Ground Lessee’s interest in the Ground Lease and the Property shall be subject to observance and performance of all of the provisions covenants, agreements, obligations and 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 Section 5.01such estates either in Leasehold Borrower or in a third party by purchase or otherwise.
(ec) Under 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 circumstances 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 or any such certificate within twenty (20) days after Lender's demand therefor.
(d) Leasehold Borrower will furnish to Lender, upon demand, proof of its successors or assigns have any obligation or liability payment of any kind or nature based upon or arising under all items which are required to be paid by Leasehold Borrower pursuant to the Ground Lease, regardless of whether such 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 the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Ground Lease. (a) Borrower shall not, without Lender’s written consent, fail to exercise any option or right to renew or extend the term of any Ground Lessee 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 not be required to exercise any particular such option or right to renew or extend (or to permit the term of any Ground Lease to renew or extend automatically) to the extent Borrower shall have executed this Instrument mortgaging their separate estates 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 such option or right as aforesaid within thirty 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 Property for name of and on behalf of a nominee of Lender, as Lender may determine in the purpose exercise of granting to the Lender such lien as would cause the fee simple title to the Property to be sold free its sole and clear of the Ground Lease 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, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwiseabsolute discretion.
(b) Except as specified in Section 11.02Borrower shall not waive, excuse, condone or in any action commenced to enforce 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 Obligations created or arising under this Instrument, any resulting judgment or decree shall be enforceable against related Ground Lessee only to Lease without the extent prior written consent of Ground Lessee’s interest in the Property or other property subject to any security interest securing the Note. Subject to Section 11.01, Lender (i) any execution on such judgment or decree, with respect to the assets of Ground Lessee, shall be limited to the Property or other property subject to any security interest securing the Note, and (ii) Ground Lessee shall which consent will not be personally liable for the payment of the indebtedness unreasonably withheld, delayed 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 Noteconditioned).
(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 Lessee and Borrower each agree that neither this Instrument nor any obligation Lease, other than an expiration of the Ground Lease pursuant to its terms. Consent to one amendment, 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 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 LesseeLessor’s interest in the any Ground Lease and the Property by Borrower or any Affiliate of Borrower shall be subject accomplished by Borrower in such a manner so as to all avoid a merger of the provisions interests of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the lessor and lessee in such Ground Lease, regardless of whether unless consent to such obligation or liability (i) merger 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 the Propertygranted by Lender.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Ground Lease. (a) Ground Lessee and El Con Borrower have executed this Instrument mortgaging their separate estates in shall not, without Lender’s written consent, fail to exercise any option or right to renew or extend the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear term of the Ground Lease at foreclosure salein 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 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 particular such option or right to renew or extend to the 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. Ground Lessee If El Con Borrower shall fail to exercise any such option or right as aforesaid, Lender may exercise the option or right as El Con Borrower’s agent and Borrower hereby jointly and severally waive any right, arising at law attorney-in-fact as provided above in Lender’s own name or in equitythe name of and on behalf of a nominee of Lender, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles as Lender may determine in the exercise of marshalling or otherwiseits sole and absolute discretion.
(b) Except as specified in Section 11.02El Con Borrower shall not waive, excuse, condone or in any action commenced to enforce way release or discharge Ground Lessor of or from Ground Lessor’s material obligations, covenants and/or conditions under the Obligations created or arising under this InstrumentGround Lease without the prior written consent of Lender, 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 Lessee, shall be limited to the Property or other property subject to any security interest securing the Note, and (ii) Ground Lessee which consent shall not be personally liable for the payment of the indebtedness unreasonably withheld, conditioned 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 Notedelayed.
(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 Lessee and Borrower each agree that neither this Instrument nor any obligation of Ground Lessee and Borrower hereunder will Lease. Consent to one amendment, change, agreement or modification shall not be released, impaired or subordinated by any amendment deemed to this Instrument or any other document or extension of time or be a waiver of the right to require consent to other, future or remedy as to Ground Lesseesuccessive amendments, Borrowerchanges, agreements 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 Lesseemodifications. Any acquisition of lessor’s interest in the Ground Lease and the Property by El Con Borrower or any Affiliate of El Con Borrower shall be subject accomplished by El Con Borrower in such a manner so as to all avoid a merger of the provisions interests of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under lessor and lessee in the Ground Lease, regardless of whether unless consent to such obligation or liability (i) merger 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 the Propertygranted by Lender.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Ground Lease. (a) Without limitation of the other provisions herein, Ground Lessee and Borrower have executed this Instrument mortgaging their separate estates in makes the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear of the Ground Lease 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, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise.
(b) 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, following covenants with respect to the assets Ground Leases:
(i) Ground Lessee shall (1) pay (or cause to be paid) all rents, additional rents and other sums required to be paid by Ground Lessee, as tenant under and pursuant to the provisions of the Ground Leases, (2) diligently perform and observe (or cause to be performed and observed) all of the terms, covenants and conditions of the Ground Leases on the part of Ground Lessee, shall be limited as tenant thereunder, (3) promptly notify Administrative Agent of the giving of any notice by the Ground Lessor under the Ground Lease to the Property Ground Lessee of any event of default (whether or other property subject not any applicable notice and cure periods have expired) by Ground Lessee and deliver to any security interest securing the NoteAgent a true copy of each such notice within two (2) Business Days of receipt, and (4) promptly notify Administrative Agent of any bankruptcy, reorganization or insolvency of the Ground Lessor under the Ground Leases or of any notice thereof, and deliver to Administrative Agent a true copy of such notice within two (2) Business Days of Ground Lessee's receipt, together with copies of all notices, pleadings, schedules and similar matters received by Ground Lessee in connection with such bankruptcy, reorganization or insolvency within two (2) Business Days after receipt.
(ii) Ground Lessee shall not be personally liable for not, without the payment prior written consent of Administrative Agent, surrender the leasehold estate created by the Ground Leases or sublet (unless on terms acceptable to the Administrative Agent), terminate or cancel the Ground Leases or modify, change, supplement, alter or amend the Ground Leases, and if Ground Lessee shall default in the performance or observance of any term, covenant or condition of the indebtedness or other Obligations secured by this Instrument, nor shall execution Ground Leases 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 each agree that neither this Instrument nor any obligation part of Ground Lessee and Borrower hereunder will shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Administrative Agent shall have the right, but shall be releasedunder no obligation, impaired to pay any sums and to perform any act or subordinated by take any amendment action as may be appropriate to this Instrument cause all of the terms, covenants and conditions of the Ground Leases on the part of Ground Lessee to be performed or any other document or extension observed on behalf 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) to the end that the rights of Ground Lessee in, to and Ground Lessee’s interest in under the Ground Lease and the Property shall be subject to all of kept unimpaired and free from default. If the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising Ground Lessor under the Ground Lease, regardless Leases shall deliver to Administrative Agent a copy of whether such obligation or liability (i) is an obligation or liability any notice of either ground lessee or ground lessor default under the Ground LeaseLeases, such notice shall constitute full protection to Administrative Agent for any action taken or (ii) arises either before or after Lender acquired title omitted to the Property.
(f) be taken by Administrative Agent, in good faith, in reliance thereon. Ground Lessee and Borrower shall exercise each hereby acknowledge and agree that all individual option, if any, to extend or renew the term of the Ground Leases upon demand by Administrative Agent made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Ground Lessee hereby expressly authorizes and appoints Administrative Agent its attorney-in-fact to exercise any such option in the name of and on behalf of Ground Lessee’s rights , which power of attorney shall be irrevocable and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject shall be deemed to and subordinate to this Instrumentbe coupled with an interest.
Appears in 1 contract
Sources: Financing Agreement (Wheeler Real Estate Investment Trust, Inc.)
Ground Lease. (a) Tower Company covenants that it shall not commit any act which would result in a default, non-renewal or nonconformance of the Ground Lessee and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting Lease. The SLA shall be subject to the Lender such lien as would cause continued existence and enforceability of the fee simple title to the Property to be sold free and clear Ground Lease, provided, however, any termination or expiration of the Ground Lease at foreclosure sale. which occurs as a result of any default, non-renewal or non-conformance by Tower Company under the terms of the Ground Lessee and Borrower hereby jointly and severally waive any rightLease, arising at law or in equitywithout the prior written consent of Carrier, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming shall be construed as an event of default under or through them, to have their separate estates sold separately upon foreclosure, whether under principles the terms of marshalling or otherwisethe SLA.
(b) Except as specified in Section 11.02In the event that the Ground Lease requires the Ground Lessor to consent to the making of the applicable SLA, in any action commenced to enforce the Obligations created or arising under this Instrument, any resulting judgment or decree it shall be enforceable against Ground Lessee only a condition precedent to the extent effectiveness of Ground Lessee’s interest in the Property or other property SLA that Tower Company obtains such consent. The form and content of such consent shall be subject to any security interest securing the Note. Subject to Section 11.01Carrier's approval, (i) any execution on such judgment or decree, with respect to the assets of Ground Lessee, shall be limited to the Property or other property subject to any security interest securing the Note, and (ii) Ground Lessee which approval shall not be personally liable for the payment of the indebtedness unreasonably withheld, delayed 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 Noteconditioned.
(c) In the event that the Ground Lessee Lease expires, terminates or is not otherwise renewed, and Borrower each agree that neither this Instrument nor subject to the terms and provisions of the Ground Lease, Tower Company hereby grants to Carrier the right to purchase the Tower Facilities (and any obligation accessories, accessions, attachments, fixtures or other equipment in connection therewith, etc., including without limitation, storage buildings and fences) for the fair market value of Ground Lessee the Tower Facilities (and Borrower hereunder will such accessories, accessions, attachments, fixtures, equipment, etc.). Such option must be releasedexercised within six (6) months of the date of such expiration, impaired termination 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 subordinatenon-renewal.
(d) Ground Lessee Tower Company agrees to deliver a non-disturbance and Ground Lessee’s interest in attornment agreement with the landlord under the Ground Lease and the Property shall be subject to all for Carrier's continued possession of the provisions Premises under the applicable SLA and/or the assumption and/or assignment of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease to Carrier in the event that Tower Company elects to terminate the Ground Lease, regardless . Carrier acknowledges and agrees that the language provided in paragraph 5 of whether such 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 Estoppel Certificate attached to the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree Assignment as Exhibit "E" will be sufficient to comply with the requirements of this provision. This provision shall not imply that all Carrier consents to the expiration or termination of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this InstrumentLease by Tower Company.
Appears in 1 contract
Sources: Master Build to Suit and Lease Agreement (Tritel Finance Inc)
Ground Lease. (a) Ground Lessee Borrower shall (i) pay (or cause to be paid) all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by Borrower, as tenant under and pursuant to the Lender such lien as would cause provisions of the fee simple title applicable Ground Lease which payments of amounts due under each Ground Lease shall be made prior to the Property 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 sold free performed and clear observed) all of the terms, covenants and conditions of the Ground Lease 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, on the part of Borrower, or anyone holding or claiming under or through themas tenant thereunder, to have their separate estates sold separately upon foreclosurebe performed and observed prior to the expiration of any applicable grace period provided therein, whether under principles (iii) promptly notify Lender of marshalling the giving of any written notice by the Ground Lessor to Borrower of any default by Borrower in the performance or otherwiseobservance 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 five (5) Business Days of receipt, and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the Ground Lessor or of any written notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Borrower’s receipt thereof.
(b) Except Borrower shall not, without the prior consent of Lender, surrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend the Ground Lease, either orally or in writing. Borrower hereby assigns to Lender, 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 further 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 Lessee, 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 and performance of the indebtedness or other Obligations secured by this obligations and for the performance and observance of the terms, covenants and conditions of the Security Instrument, nor 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 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 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 void and of Ground Lessee other than the Property or other property subject to any security interest securing the Noteno force and effect.
(c) If Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lessee Lease on the part of 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 Borrower to be performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the Ground 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 exercise each agree that neither this Instrument nor individual option, if any, to extend or renew the term of the Ground Lease upon written demand by Lender made at any obligation 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 Lessee and Borrower hereunder will be releasedLease to any mortgage, impaired security deed, lease or subordinated by any amendment to this Instrument other interest on or in the landlord’s interest in all or any other document or extension part of time or waiver the Property, unless, in each such case, the written consent 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 subordinateLender shall have been first had and obtained.
(d) Ground Lessee and Ground Lessee’s interest 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 subject sublet pursuant to all the terms of the provisions of Section 5.01.
(e) Under no circumstances this subsection, such sublease shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless of whether such 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 be deemed to be included in the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Ground Lease. (a) Ground Lessee and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting With respect to the Lender such lien Ground Lease, Borrower covenants and agrees as would cause follows: (i) to promptly and faithfully observe, perform and comply with all the fee simple title 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 could be a default under or breach of any of the terms thereof; (iii) not to terminate (pursuant to the Property 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 be sold free and clear of release the Ground Lessor under the Ground Lease at foreclosure sale. from any obligations imposed upon it thereby; (iv) not to assign the Ground Lessee and Borrower hereby jointly and severally waive any right, arising at law Lease in whole or in equitypart 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, whether presently existing communications, plans, specifications and other similar instruments received or subsequently accruingdelivered 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, whether to Ground Lesseeperformance and compliance with the terms, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwisecovenants and provisions thereof.
(b) Except as specified In the event of any default by Borrower in Section 11.02the 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 commenced to enforce the Obligations created or arising by Lender shall release Borrower from any default under this InstrumentAgreement. Borrower shall, on demand, reimburse Lender for all advances made and expenses incurred by Lender in curing any resulting judgment 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 decree expense is incurred, to and including the date the same is paid and such monies so expended by Lender with interest thereon shall be enforceable against Ground Lessee only to secured by this Agreement.
(c) If Borrower acquires the extent of Ground Lessee’s fee title or any other estate, title or interest in the Property Ground Lease Property, or other property subject 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 security new lease or all or any part of the Ground Lease Property, Borrower shall 67 have no right, title or interest securing in or to the Note. Subject new lease or the leasehold estate created by such new lease.
(e) Borrower shall exercise its best efforts to Section 11.01obtain and deliver to Lender from time to time within ten (10) Business Days after written demand by Lender, (i) any execution on such judgment or decreean estoppel certificate from the Ground Lessor setting forth, with respect to the assets Ground Lease (i) the name of the tenant thereunder, (ii) that the Ground LesseeLease has not been modified or, shall be limited 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, (iv) the date to which all rental charges have been paid by the Property or other property subject to any security interest securing tenant under the NoteGround Lease, and (iiv) whether there are any defaults or alleged defaults of the tenant under the Ground Lessee 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 personally liable for the payment obligations of the indebtedness 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 other Obligations secured by this Instrumentotherwise, 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 and is holding all of Ground Lessee other than the Property or other property subject to any security Borrower's right, title and interest securing the Notetherein.
(cg) No release or forbearance of any of Borrower's obligations under the Ground Lessee and Lease, pursuant to the Ground Lease or otherwise, shall release Borrower each agree that neither from any of its obligations under this Instrument nor any obligation of Ground Lessee and Borrower hereunder will be released, impaired Agreement or subordinated by any amendment to this Instrument or any the 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 subordinateLoan Documents.
(dh) Borrower shall enforce the obligations of the Ground Lessee 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 Lessee’s Lessor or Borrower in the performance or observance of any of the terms, covenants and conditions of the Ground Lease and Borrower will immediately advise Lender of the occurrence of any of the events of default enumerated in the Ground Lease and of the giving of any notice by the Ground Lessor under the Ground Lease to Borrower of any default by Borrower thereunder and will immediately deliver to Lender a true copy of each such notice. If, pursuant to the Ground Lease, the Ground Lessor shall deliver to Lender a copy of any 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 and in reliance thereon.
(i) Borrower shall 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 all rights of arbitration conferred upon it by the Ground Lease. If at any time such proceeding shall be continuing, a default by 68 Borrower beyond any applicable cure period in the performance or observance of any covenant, condition or other requirement of the Ground Lease or of this Agreement, on the part of Borrower to be performed or observed shall have occurred and be continuing, Lender 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 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.
(l) 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 terms 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 Property 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 Lender Borrower’s rights to treat the Ground Lease as terminated pursuant to Section 365(h) of the Bankruptcy Code and 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 be subject 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 all 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-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 any 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 prosecute any proofs of claim, complaints, motions, applications, notices and other documents in any case in respect of 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 provisions of Section 5.01.
(e) Under no circumstances 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 successors rights or assigns have 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 obligation or liability existing defaults of any kind or nature based upon or arising Borrower under the Ground Lease, regardless of whether such 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 the Property.
(fiii) If any action, proceeding, motion or notice shall be commenced or filed in respect of Ground Lessee and Borrower each hereby acknowledge and agree that Lessor or all or any part of the Ground Lessee’s rights and remedies 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 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 LeaseLessor of a petition under the Bankruptcy Code. Borrower shall thereafter promptly give written notice of such filing to Lender, including without limitation setting forth any rights information available to Borrower as to the date of first refusal or such filing, the court in which such petition was filed, and the relief sought in such filing. Borrower shall promptly deliver to Lender any purchase rightsand all notices, are subject summonses, pleadings, applications and other documents received by Borrower in connection with any such petition and any proceedings relating to and subordinate to this Instrumentsuch petition.
Appears in 1 contract
Sources: Loan Agreement (Carter Validus Mission Critical REIT II, Inc.)
Ground Lease. (a) The Lessee covenants and agrees that while this Lease remains in effect with respect to each Leased Asset subject to a Ground Lessee Lease, if any, and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting at all times prior to the Lender date on which the Lessee's right to occupy such lien as would cause Leased Asset has been terminated by the fee simple title 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 Property to be sold free Gross Proceeds from the sale of such Leased Asset) to, and clear confirmation of its surrender of possession in respect of, the Leased Asset, (i) Lessee will perform and observe all of the terms, covenants, provisions, conditions and agreements of the Ground Lease at foreclosure salefor each Leased Asset on the Lessor's part as lessee thereunder to be performed and observed (including, without limitation, payment of all rent, additional rent and other amounts payable by the Lessor as 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, except to the extent such performance is solely under the control of the 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 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 such Ground Lease. The obligations of the Lessee under this Section 32 shall survive the termination of this Lease and Borrower hereby jointly and severally waive the rights of the Lessee hereunder but shall not, for any rightLeased Asset, arising at law extend beyond the date after the termination of this Lease that Lessor shall have completed a sale or in equity, whether presently existing or subsequently accruing, whether lease of such Leased Asset to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwisean unaffiliated third party.
(b) Except as specified in The Lessee covenants and agrees pursuant to Section 11.0226.1 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, 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 other than to the extent of Ground Lessee’s interest in arising from the Property gross negligence 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 Lessee, 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 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 Ground Lease and the Property shall be subject to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability willful misconduct of any kind or nature based upon or arising under the Ground Lease, regardless of whether such 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 the PropertyIndemnitee.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Ground Lease. (a) Borrower shall (i) pay all rents, additional rents and other sums required to be paid by Borrower, as tenant under and pursuant to the provisions of any Ground Lessee Lease, (ii) diligently perform and observe all of the material terms, covenants and conditions of each Ground Lease on the part of Borrower, as tenant thereunder, to be performed and observed, and (iii) promptly notify Lender of the giving of any written notice by the landlord under any Ground Lease to Borrower have executed this Instrument mortgaging their separate estates of any event of default thereunder by Borrower in the Property 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 fifteen (15) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within fifteen (15) Business Days of Borrower’s receipt. Borrower shall not, without the prior consent of Lender, surrender the leasehold estate created by any Ground Lease or terminate or cancel any Ground 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) and (y) otherwise of a ministerial nature). Borrower hereby assigns to Lender, as further security for the purpose payment and performance of granting the obligations and for the 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, 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 such lien 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 any Ground Lease on the part of Borrower, as would cause tenant thereunder, and shall fail to cure the fee simple title same prior to the Property 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 any Ground Lease on the part of Borrower to be sold performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under such Ground Lease shall be kept unimpaired and free and clear from default. If the landlord under any Ground Lease shall deliver to Lender a copy of any notice of an event of default under 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 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 foreclosure sale. Ground Lessee any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby jointly expressly authorizes and severally waive appoints Lender its attorney-in-fact to exercise any rightsuch option in the name of and upon behalf of Borrower, arising at law 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 equitythe landlord’s interest in all or any part of any Property, whether presently existing unless, in each such case, the written consent of Lender shall have been first had and obtained. Borrower or subsequently accruingany 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, whether to Ground Lessee, 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 anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles spreader in connection with the Fee Acquisition securing the obligations of marshalling or otherwiseBorrower hereunder.
(b) Except as specified in Section 11.02, Notwithstanding anything contained 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 Lease to the extent contrary, Borrower shall not further sublet any portion of Ground Lessee’s interest in the any Property or (other property subject to any security interest securing the Note. Subject than as permitted pursuant to Section 11.01, (i5.7 of this Agreement) any execution on such judgment or decree, with respect to the assets without prior written consent of Ground Lessee, 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 NoteLender.
(c) Ground Lessee and Borrower 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 Ground Lease and the Property shall be subject to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless of whether such 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 the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Sources: Loan Agreement (Toys R Us Inc)
Ground Lease. (a) Ground Lessee Borrower will, and Borrower have executed this Instrument mortgaging their separate estates will cause Owner to, comply in all material respects with the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property to be sold free terms and clear conditions of the Ground Lease at foreclosure saleLease. Ground Lessee Borrower will not, and Borrower hereby jointly and severally waive any rightwill not permit Owner to, arising at law do or in equitypermit anything to be done, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrowerthe doing of which, or anyone holding refrain from doing anything, the omission of which, will impair or claiming tend to impair the security of the Premises under the Ground Lease or through themwill 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 have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwiseLender.
(b) Except as specified in Section 11.02Borrower shall, and shall cause Owner to, enforce the Ground Lease and not terminate, modify, cancel, change, supplement, alter or amend the Ground Lease, or waive, excuse, condone or in any action commenced to enforce the Obligations created way release or arising under this Instrument, discharge Ground Lessor of or from 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 Lessee, 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 material covenants and conditions to be a lien on any other asset of performed or observed by Ground Lessee other than the Property or other property subject to any security interest securing the NoteLessor.
(c) Lender shall have the right, but not the obligation, to perform any obligations of Borrower or Owner under the terms of the Ground Lessee 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 each agree that neither this Instrument nor to Lender during the continuance of an Event of Default on demand. No performance by Lender of any obligation obligations 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 Owner shall constitute a waiver of right any Event of Default arising by reason of Borrower’s or remedy as Owner’s failure to Ground Lesseeperform the same. If Lender shall make any payment or perform any act or take action in accordance with this Section 2.36(c), BorrowerLender will notify Borrower of the making of any such payment, the performance of any such act, or the taking of any other party, or any other act or thing which, but for this provision, would so release, impair, or subordinatesuch action.
(d) Ground Lessee and Ground Lessee’s interest in Borrower shall cause 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 of the Property 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 on behalf of Owner to so exercise such option if Borrower fails to cause Owner to exercise as herein required, which power of attorney shall be subject irrevocable and shall be deemed to all 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 provisions Ground Lease within five (5) days of Section 5.01the exercise of any such option.
(e) Under no circumstances 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 or all of Borrower’s claims and rights to the payment of damages arising from any rejection by the Ground Lessor of its successors or assigns have the Ground Lease under the Bankruptcy Code. Borrower shall notify Lender promptly (and in any obligation or liability event within ten (10) days) of any kind claim, suit, action or nature based upon or arising under proceeding relating to the rejection of the Ground Lease. Lender is hereby irrevocably appointed as Borrower’s attorney-in-fact, regardless coupled with an interest, with exclusive power to file and prosecute, to the exclusion of whether such obligation or liability (i) is an obligation or liability Borrower, any proofs of either ground lessee or ground lessor claim, complaints, motions, applications, notices and other documents, in any case in respect of the Ground Lessor under the Ground LeaseBankruptcy 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 (ii) arises either before 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 acquired title 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 Propertyprior 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 Lessee and Borrower each hereby acknowledge and agree that all 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 LesseeLessor’s rights and remedies 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, including without limitation after obtaining knowledge thereof, notify Lender of any rights filing by or against the Ground Lessor of first refusal 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 purchase rightsand all notices, are subject 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 and subordinate to this Instrumentthe 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. 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 not (i) enter into any agreement with the Ground Lessee and Borrower have executed this Instrument mortgaging their separate estates to amend, modify, renew, or in any manner change the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear terms of the Ground Lease at foreclosure sale. Ground Lessee and Borrower hereby jointly and severally waive any rightor the rent thereunder, arising at law either orally or in equitywriting and whether or not permitted to do so by the terms of the Ground Lease, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles without the prior written consent of marshalling or otherwise.
(b) 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 Lender which consent may be enforceable against Ground Lessee only to the extent of Ground Lessee’s interest withheld in the Property Lender's sole and absolute discretion; 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 Lessee, 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 enter into any agreement with the payment Guarantor to amend, modify, renew, or in any manner change the terms of the indebtedness Guaranty either orally or other Obligations secured in writing and whether or not permitted to do so by this Instrumentthe terms of the Guaranty, nor shall execution on any judgment or decree resulting from any action to enforce without the Obligations prior written consent of the Lender which consent may be or be caused to be a lien on any other asset of Ground Lessee other than withheld in the Property or other property subject to any security interest securing the Note.Lender's sole and absolute discretion;
(c) the occurrence of any Event of Default (as defined in the Ground Lessee and Borrower each agree that neither Lease) under the Ground Lease shall ipso facto constitute a Default under 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.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 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 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 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 the Lender of payment of all items which are required to be paid by the Ground Lessee or the Borrower under the Ground Lease or any instrument or agreement related thereto;
(f) the Lender shall have the right, at its option, to perform the obligations of the Borrower under 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 Lessee’s 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, without the prior written consent of the Lender, including but not limited to agreeing or consenting to any leasehold mortgage made by Ground Lessee of its right, title and interest in and to the Premises under the Ground Lease and the Property shall be subject leasehold estate created thereby. Lender will grant its consent to all a leasehold mortgage given to secure a loan to Ground Lessee the proceeds of which are used by Ground Lessee to construct the provisions initial improvements on the Premises provided, however, (i) no Default has occurred and is continuing; (ii) no Event of Section 5.01.
Default has occurred under the Ground Lease and is continuing; (eiii) Under no circumstances shall Lender event has occurred which with the giving of notice or any passage of its successors time or assigns have any obligation both would constitute a Default under this Mortgage or liability an Event of any kind or nature based upon or arising 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, regardless 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 whether such obligation 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 liability the rents payable thereunder, to be subject to any liens, charges, encumbrances or other security interests, without the prior written consent of the Bank; provided, however, that the foregoing restrictions shall not apply to (i) is an obligation liens for taxes, assessments or liability other governmental charges or levies if the same shall not at the time be delinquent; (ii) liens arising out of either ground lessee pledges or ground lessor 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, or (ii) arises to any amendment, modification, renewal or any other change in any sublease or the rent thereunder, either before orally or after Lender acquired title in writing, and whether or not permitted to do so by the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all terms of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation the prior written consent of the Lender. The Lender will not unreasonably withhold its consent to subleases of the Mortgaged Property at fair market rents which meet the criteria for subleases set forth in the Ground Lease, and, if such 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 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 rights 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 first refusal 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 the Lender extending the Loan to the Borrower;
(j) The Borrower shall not agree or consent to any cancellation, termination or 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 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 in any litigation affecting the Note, this Mortgage or any purchase rightsof the other Loan Documents, are subject 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 (without regard to whether Lender is the prevailing party), and subordinate to this Instrumentarising or resulting from any 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) Ground Lessee and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting With respect to the Lender such lien as would cause the fee simple title Ground Lease, Borrower shall (i) except to the Property extent reserved for by Lender pursuant to Section 9.8 hereof, pay all rents, additional rents and other sums required to be sold free paid by Borrower, as tenant under and clear pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease at foreclosure saleon the part of Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Borrower of any default by 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 Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall 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 Lessee and Borrower hereby jointly and severally waive any rightLease or the termination or cancellation of the Ground Lease, arising at law (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in equity, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrowerwriting, or anyone holding or claiming under or through them, to have their separate estates sold separately (y) vacate the premises upon foreclosure, whether under principles of marshalling or otherwisethe land underlying the Ground Lease.
(b) 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 With respect to the assets Ground Lease, if Borrower shall default in the performance or observance of Ground Lesseeany term, shall be limited to the Property covenant or other property subject to any security interest securing the Note, and (ii) Ground Lessee shall not be personally liable for the payment condition 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 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 Ground Lease on the part of Borrower, as tenant thereunder, and shall fail to cure the Property same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but shall be subject 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 provisions terms, covenants and conditions of Section 5.01.
(e) Under no circumstances the Ground Lease on the part of Borrower to be performed or observed on behalf of Borrower, to the end that the rights of 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 or any of its successors or assigns have any obligation or liability a copy of any kind or nature based upon or arising written notice of default under the Ground Lease, regardless of whether such obligation notice shall constitute full protection to Lender for any action taken or liability (i) is an obligation omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall exercise each individual option, if any, to extend or liability of either ground lessee or ground lessor under renew the Ground Lease, or (ii) arises either before or after Lender acquired title to the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all term of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation Lease upon demand by Lender made at any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.time within one (1) year prior
Appears in 1 contract
Ground Lease. (a) Ground Lessee and Borrower have executed The transaction contemplated by this Instrument mortgaging their separate estates in the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear of Agreement is contingent upon Seller obtaining written consent from the Ground Lease at foreclosure sale. Ground Lessee and Borrower hereby jointly and severally waive any rightLessor (the "▇▇▇▇▇▇▇▇ Owner Consent") to Seller's assignment to Purchaser of Seller's interest, arising at law or in equityas landlord, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise.
(b) 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 Lessee, 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 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 Ground Lease and the Property shall be subject to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless of whether such 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 the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies 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 limitation 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 first refusal Purchaser's Indemnity and Purchaser's Confidentiality Obligations). If Seller obtains the ▇▇▇▇▇▇▇▇ Owner Consent and the Ground Lease Estoppel on or any purchase rightsbefore the Due Diligence Approval Date, are 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 subordinate the Ground Lease Estoppel shall contain no material deviations from the terms of the Ground Lease provided to this InstrumentPurchaser. 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) Ground Lessee To Landlord’s knowledge, (i) the Leased Premises are free of Hazardous Materials at levels which would be violative of applicable Legal Requirements, and Borrower have executed this Instrument mortgaging their separate estates (ii) the Leased Premises are in the Property for the purpose material compliance with all other applicable Legal Requirements. Landlord has provided Tenant with a copy of granting a Phase I and environmental baseline survey conducted with respect to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear of the Ground Lease 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, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwisePhase I Premises.
(b) Except as specified in Section 11.02Tenant shall comply, in and shall cause any action commenced sub-tenants to enforce comply (including Sub- Sublessee), with 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, Lease and all Legal Requirements with respect to the assets of Ground LesseeLeased Property, shall be limited to the Property or other property subject to any security interest securing Tenant-Owned Improvements and the NotePhase I Premises, and in that connection, Tenant shall:
(i) neither cause nor permit a release or threatened release of Hazardous Materials onto the Leased Premises and/or Phase I Premises as a result of any intentional or unintentional act or omission on the part of Tenant, its employees, agents or invitees;
(ii) comply with all Legal Requirements related to Hazardous Materials and with the requirements of the Ground Lessee shall not be personally liable Lease regarding Hazardous Materials;
(iii) conduct and complete all investigations, studies, sampling, and testing, and all remedial, removal, and other actions on, from, or affecting the 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 kind or nature, known or unknown, contingent or otherwise (including, without limitation, accountants’, engineers’ and attorneys’ fees (including fees for the payment services of paralegals and similar persons), consultant 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 (a) the presence, disposal, release, or threatened release, by or caused by Tenant, its employees, agents or invitees, of any 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 of the indebtedness foregoing, “Tenant-Introduced Hazardous Materials”); (b) any personal injury, including wrongful death, or other Obligations secured 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 or Legal Requirements by this InstrumentTenant related in any way to Tenant-Introduced Hazardous Materials;
(vi) cooperate, nor 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 execution on allow representatives from NASA and/or Landlord access to inspect the 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 ensuring such compliance. Tenant shall be responsible obtaining, at Tenant’s cost and expense, any judgment or decree resulting from any action permits relating to enforce Tenant’s use of the Obligations be or be caused to be a lien on any other asset of Ground Lessee other than the Leased Property or other property subject the environmental condition of the Leased Property during the Term. Tenant shall notify Landlord at the Name and Address of Landlord for Notices and the NASA-KSC Environmental Program Office (at the following address: [NASA KSC Environmental Program Branch, Mail Stop: SI-E2, ▇▇▇▇▇▇▇ Space Center, FL 32899, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇)] 3 immediately to report (a) the release by Tenant of any security interest securing Hazardous Materials in violation of the NoteGround 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) Ground Lessee 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 Borrower each agree that neither this Instrument nor any obligation of Ground Lessee the Tenant will not be obligated to cease operations, restore the Leased Property or indemnify the Landlord and Borrower hereunder will be releasedNASA or their officers, 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 Lesseedirectors, Borroweremployees and agents, or any other party, or any other act or thing which, but for this provision, would so release, impair, or subordinateif Tenant did not cause such contamination.
(d) Ground Lessee and Ground Lessee’s interest in the Ground Lease and the Property All indemnification obligations of Tenant under this Section 10 shall survive termination or expiration of this Sublease. 3 NTD: To be subject to all updated upon receipt of the provisions of Section 5.01contact information from Space Florida.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless of whether such 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 the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Sources: Sublease Agreement
Ground Lease. (a) Ground Lessee Borrower shall (i) pay (or cause to be paid) all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by Borrower, as tenant under and pursuant to the Lender such lien as would cause provisions of the fee simple title to Ground Lease, (ii) diligently perform and observe all of the Property to be sold free terms, covenants and clear conditions of the Ground Lease 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, on the part of Borrower, or anyone holding or claiming under or through themas tenant thereunder, to have their separate estates sold separately upon foreclosurebe performed and observed, whether (iii) promptly notify Lender of the giving of any written notice by the landlord under principles the Ground Lease to Borrower of marshalling or otherwise.
(b) 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 default by Borrower in the Property performance or other property subject observance of any of the terms, covenants or conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to any security interest securing the Note. Subject be performed or observed, and deliver to Section 11.01, Lender a true copy of each such notice within five (i5) any execution on such judgment or decree, with respect to the assets Business Days of Ground Lessee, shall be limited to the Property or other property subject to any security interest securing the Notereceipt, and (iiiv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under the Ground Lessee Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Borrower’s receipt. Borrower shall not be personally liable not, without the prior consent of Lender, surrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend the Ground Lease, either orally or in writing. Borrower hereby assigns to Lender, as further security for the payment and performance of the indebtedness or other Obligations secured by this obligations and for the performance and observance of the terms, covenants and conditions of the Security 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 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 Ground Lease Agreement and the Property shall be subject to other Loan Documents, all of the provisions rights, privileges and prerogatives of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising Borrower, as tenant under the Ground Lease, regardless 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 whether such obligation the leasehold estate created by the Ground Lease or liability (i) is an obligation termination, cancellation, modification, change, supplement, alteration or liability amendment of either ground lessee the 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 ground lessor observance of any term, covenant or condition of the Ground Lease on the part of 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 Borrower to be performed or observed on behalf of Borrower, to the end that the rights of 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 notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or (ii) arises either before omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall exercise each individual option, if any, to extend or after Lender acquired title to renew the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all term of the Ground LesseeLease upon demand by Lender made at any time not more than one (1) year prior to, and not less than one (1) month 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 consent to any mortgage, security deed, lease or other interest on or in the landlord’s rights interest in all or any part of the Property, nor will it subordinate or consent to the subordination of the Ground Lease to any such interest, unless, in each such case, the written consent of Lender shall have been first had and remedies under obtained. 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 4.14 hereof) without prior written consent of Lender. Each such sublease hereafter made shall provide that (i) in the event of the termination of the Ground Lease, including without limitation the sublease shall not terminate or be terminable by the lessee thereunder; (ii) in the event of any rights action for the foreclosure of first refusal 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 purchase rightssuch action and unless a judgment is obtained therein against such lessee; and (iii) in the event that the Ground Lease is terminated as aforesaid, are subject the lessee under the sublease shall attorn to and subordinate 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 Instrumentsubsection, such sublease shall be deemed to be included in the Property.
Appears in 1 contract
Sources: Loan Agreement (American Realty Capital Trust III, Inc.)
Ground Lease. (a) Ground Lessee Borrower shall, at its sole cost and Borrower have executed this Instrument mortgaging their separate estates in expense, promptly and timely perform and observe all the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property material terms, covenants and conditions required to be sold free performed and clear of observed by Borrower, as lessee under the Ground Lease at foreclosure sale. (including, but not limited to, the payment of all rent, additional rent, percentage rent and other charges required to be paid under the 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, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwiseLease).
(b) 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 If Borrower shall be enforceable against in default under the Ground Lessee only Lease, then, subject to the extent terms of the Ground LesseeLease, Borrower shall grant Lender the right (but not the obligation), subject to the terms of the Ground Lease, to cause the default or defaults under the Ground Lease to be remedied and otherwise exercise any and all rights of Borrower under the Ground Lease, as may be necessary to prevent or cure any default, provided such actions are necessary to protect Lender’s interest in the Property or other property under the Loan Documents and Lender shall, subject to the rights of Tenants, Permitted Encumbrances and hotel guests and patrons, have the right to enter all or any security portion of the Ground Lease Property at such times and in such manner as Lender deems necessary, to prevent or to cure any such default, provided that in each case, such actions are necessary to protect Lender’s interest securing the Note. Subject to Section 11.01, (i) any execution on such judgment or decree, with respect to the assets of Ground Lessee, shall be limited to in the Property or other property subject to any security interest securing under 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 NoteLoan Documents.
(c) The actions or payments of Lender to cure any default by Borrower under the Ground Lessee Lease shall not remove or waive, as between Borrower and Lender, the default that occurred under this Agreement by virtue of the default by Borrower each agree that neither under the Ground Lease unless and until 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 Instrument nor any obligation of Ground Lessee Agreement from the date such sum is expended to and Borrower hereunder will including the date the reimbursement payment is made to Lender. All such indebtedness shall be released, impaired or subordinated deemed to be secured 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 subordinatethe Mortgage.
(d) Borrower shall notify Lender promptly in writing of the occurrence of any material default by Ground Lessee and Ground Lessee’s interest in Lessor under the Ground Lease and or following the Property receipt by Borrower of any written notice from Ground Lessor under the Ground Lease noting or claiming the occurrence of any default by Borrower under the Ground Lease or the occurrence of any event that, with the passage of time or service of notice, or both, would constitute a default by Borrower under the Ground Lease. Borrower shall be subject promptly deliver to all Lender a copy of the provisions any such written notice of Section 5.01default.
(e) Under Upon the written request of 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 circumstances event (so long as no Event of Default has occurred and is continuing) more than one (1) time in any Fiscal Year.
(f) 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 the Ground Lease Property. Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, after the occurrence and during the continuation 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 the Ground Lease, including, without limitation, the right to effectuate any extension or renewal of the Ground Lease, or to preserve any rights of Borrower whatsoever in respect of any part of the 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 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 Ground Lease 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, attorney’s fees and costs) incurred in connection with the exercise of any of its successors rights or assigns have any obligation or liability 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 kind 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 effect 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 nature based notice shall be commenced or filed in respect of any lessor of 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 reasonable actual out of pocket costs and expenses (including reasonable attorneys’ fees and costs) actually paid or arising 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 Mortgage.
(vi) Borrower shall notify Lender of any filing by or against the lessor under the Ground Lease of a petition under the Bankruptcy Code of which it has knowledge, 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 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 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, regardless and (y) be entitled to exercise all of whether such obligation or liability (i) is an obligation or liability of either ground lessee or ground lessor the rights and benefits accruing to Borrower under the Ground Lease. At such time as Lender shall request, Borrower agrees to execute and deliver and use commercially reasonable efforts to cause any third party to execute and deliver to Lender 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 (ii) arises either before or after Lender acquired title to the Propertyagainst Borrower.
(fi) Ground Lessee For the avoidance of doubt, the provisions of this Section 5.1.26 shall cease to be in full force and Borrower each hereby acknowledge effect from and agree that all after the release of the Ground Lessee’s rights Taran Outparcel from the Lien of the Mortgage pursuant to, and remedies under in accordance with, the Ground Lease, including without limitation any rights provisions of first refusal or any purchase rights, are subject to and subordinate to this InstrumentSection 2.5.2.
Appears in 1 contract
Ground Lease. (a) Ground Lessee Borrower shall (i) pay all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by Borrower, as tenant under and pursuant to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear provisions of the Ground Lease at foreclosure sale. 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 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, Lease on the part of Borrower, or anyone holding or claiming under or through themas tenant thereunder, to have their separate estates sold separately upon foreclosurebe performed and observed, whether (iii) promptly notify Lender of the giving of any written notice by the lessor under principles the Ground Lease to Borrower of marshalling any default by Borrower in the performance or otherwiseobservance 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, and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under the Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Borrower’s receipt.
(b) Except as specified in Section 11.02Borrower shall not, in any action commenced to enforce without the Obligations created or arising under this Instrument, any resulting judgment or decree shall be enforceable against Ground Lessee only to the extent prior written consent of Ground Lessee’s interest in the Property or other property subject to any security interest securing the Note. Subject to Section 11.01Lender, (i) any execution on such judgment surrender the leasehold estate created by the Ground Lease or decree, with respect to the assets of Ground Lessee, shall be limited to the Property or other property subject to any security interest securing the Note, and (ii) terminate or cancel the Ground Lessee shall not be personally liable Lease or modify, change, supplement, alter or amend, or waive any of the terms or provisions of, the Ground Lease, in any material respect, and Borrower hereby assigns to Lender, as further security for the payment and performance of the indebtedness Obligations and for the performance and observance of the terms, covenants and conditions of the 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 other Obligations secured to terminate, cancel, modify, change, supplement, alter or amend, or waive any of the terms or provisions of, the Ground Lease in any material respect and any such surrender of the leasehold estate created by this Instrumentthe Ground Lease or termination, nor cancellation, modification, change, supplement, alteration or amendment of, or waiver of any of the terms or provisions of, the Ground Lease in any material respect without the prior written consent of Lender 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 void and of Ground Lessee other than the Property or other property subject to any security interest securing the Noteno force and effect.
(c) If Borrower shall default in the performance or observance of any material term, covenant or condition of the Ground Lessee Lease on the part of Borrower, as tenant thereunder, to be performed or observed, then, during the continuance of any such default, without limiting the generality of the other provisions of the Loan Documents, and without waiving or releasing Borrower each agree from any of its Obligations hereunder, Lender shall have the right, but shall be under no obligation, upon prior written notice to Borrower, 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 Borrower, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Borrower, to the end that neither this Instrument nor any obligation the rights of Borrower in, to and under the Ground Lessee 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 hereunder will be released, impaired or subordinated by any amendment party on behalf of Borrower. Lender hereby agrees to use commercially reasonable efforts to consult with Borrower on a non-binding basis prior to Lender exercising Lender’s rights set forth in this Instrument clause (c). If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender shall 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 document occupants under the Leases or extension 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 orally) and from time or waiver to time for the purpose of right or remedy 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 LesseeLease. 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 Mortgage. If the lessor under the Ground Lease shall deliver to Lender a copy of any 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 any other partyomitted to be taken by Lender, or any other act or thing whichin good faith, but for this provision, would so release, impair, or subordinatein reliance thereon.
(d) [Intentionally Omitted.]
(e) Borrower shall not subordinate or consent to the subordination of the Ground Lessee and Ground LesseeLease 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, which consent shall not unreasonably be withheld.
(f) Each Lease hereafter entered into by Borrower shall provide that (i) in the event of the termination of the Ground Lease, the Lease shall not terminate or be terminable by the lessee thereunder; (ii) in the event of any action for the foreclosure of the Mortgage, the Lease 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 Lease 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. Notwithstanding the foregoing, to the extent a Tenant requires a subordination, non-disturbance and attornment agreement as a condition to such Tenant’s execution of a Lease containing the provisions set forth in clause (i) through (iii) above, Lender shall execute and deliver its standard form of subordination, non-disturbance and attornment agreement (“SNDA”) to such Tenant promptly upon request and, the foregoing shall be subject to such SNDA. In the event that any portion of the Property shall be subject sublet pursuant to all the terms of the provisions of Section 5.01.
(e) Under no circumstances this subsection, such sublease shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless of whether such 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 be deemed to be included in the Property.
(fg) Borrower shall not appoint or designate or permit the appointment or designation of an “insurance depositary”, “Insurance Depositary” or “The Award Depositary” (as such terms are used in the Ground Lessee and Borrower each hereby acknowledge and agree that all Lease) under the terms of the Ground LesseeLease without the prior written consent of Lender, and in no event shall any such appointment be made if such appointee is not an Eligible Institution.
(h) In the event there is any reduction in the amount of insurance proceeds or condemnation awards made available to Borrower as a result of the payment of any insurance proceeds or condemnation awards to Ground Lessor or to any mortgagee of Ground Lessor’s rights and remedies under fee interest in the Property (such amount, the “Ground Lease Proceeds Deficiency”), then Borrower shall, within thirty (30) days written notice from Lender of such amount, deposit with Lender in immediately available funds an amount equal to the Ground LeaseLease Proceeds Deficiency, including without limitation which amount shall be held by Lender as Net Proceeds in accordance with the terms herein. Notwithstanding the foregoing, with respect to condemnation awards only, the determination of the Ground Lease Proceeds Deficiency amount shall not include any rights condemnation awards paid to Ground Lessor which are solely related to Ground Lessor’s ownership of first refusal the fee interest in the Property (as opposed to any condemnation awards related to Borrower’s leasehold interest in the Property which are required by the terms of the Ground Lease to be delivered to Ground Lessor or any purchase rights, are subject fee mortgagee of Ground Lessor’s interest in the Property) (the “Ground Lessor Award Amount”) and Borrower’s obligations to deposit the Ground Lease Proceeds Deficiency shall not include the Ground Lessor Award Amount and subordinate to this Instrumentthe Ground Lease Proceeds Deficiency shall not include the Ground Lessor Award Amount.
Appears in 1 contract
Sources: Loan Agreement (American Realty Capital New York City REIT, Inc.)
Ground Lease. Borrower shall, within thirty (a30) days of the date hereof, satisfy one of the following requirements:
(i) cause ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as lessor under the Ground Lessee and Borrower have executed this Instrument mortgaging their separate estates Lease (as defined in the Property for Security Documents) (“▇▇▇▇▇▇▇”), to execute an Agreement by and among Borrower, the purpose of granting Bank and ▇▇▇▇▇▇▇ which will provide the Bank with express cure rights and the right to the Lender such lien as would cause the fee simple title consent to the Property to be sold free and clear any termination of the Ground Lease 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, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise.Lease; or
(b) 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 Lessee, shall be limited to the Property or other property subject to any security interest securing the Note, and (ii) provide the Bank with documentation evidencing the prepayment of all rent due under the Ground Lessee shall not be personally liable Lease for the payment twelve (12) month period commencing on the date hereof. Within thirty (30) days of each anniversary of this Agreement, if the indebtedness or other Obligations secured by Borrower has not otherwise satisfied the requirements of this InstrumentSection 4.12 within the preceding twelve (12) month period, nor Borrower shall execution on any judgment or decree resulting from any action then be required to enforce provide documentation evidencing the Obligations be or be caused to be a lien on any other asset prepayment of all rent then due and owing under the Ground Lessee other than the Property or other property subject to any security interest securing the Note.Lease for each subsequent twelve (12) month period; or
(ciii) Ground Lessee and Borrower 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 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 shall be (as defined in the Security Documents) subject to all 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 provisions 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 Section 5.01.As Is appraised value on the remaining Property; or
(ev) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based 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 or arising a default under the Ground LeaseLease by Borrower beyond any applicable notice and cure period, regardless the Bank shall be permitted to advance the Borrowing Base Reduction from the Facility for the purpose of whether such obligation or liability (i) is an obligation or liability of either ground lessee or ground lessor exercising the Purchase Option under the Ground LeaseLease on behalf of Borrower. Borrower shall at such time, or execute such documentation as the Bank may reasonably require to (iiA) arises either before or after Lender acquired title 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.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Sources: Loan Agreement (Phillips Edison - ARC Shopping Center REIT Inc.)
Ground Lease. With respect to each Ground Lease, Borrower shall (ai) Ground Lessee subject to Section 9.10 pay all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by Borrower, as tenant under and pursuant to the Lender such lien as would cause provisions of the fee simple title to Ground Lease, (ii) diligently perform and observe all of the Property to be sold free terms, covenants and clear conditions of the Ground Lease 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, on the part of Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise.
(b) 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 11.01tenant thereunder, (iiii) any execution on such judgment or decree, with respect to the assets of Ground Lessee, 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 promptly notify Lender of the indebtedness or other Obligations secured giving of any notice 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 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 landlord under the Ground Lease to Borrower of any default by Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the Property landlord under the Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Borrower’s receipt. Borrower shall not, without the prior written consent of Lender, surrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, and if Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of 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 subject 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 provisions terms, covenants and conditions of Section 5.01.
(e) Under no circumstances the Ground Lease on the part of Borrower to be performed or observed on behalf of Borrower, to the end that the rights of 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 or any of its successors or assigns have any obligation or liability a copy of any kind or nature based upon or arising notice of default under the Ground Lease, regardless of whether such obligation notice shall constitute full protection to Lender for any action taken or liability (i) is an obligation omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall exercise each individual option, if any, to extend or liability of either ground lessee or ground lessor under renew the Ground Lease, or (ii) arises either before or after Lender acquired title to the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all term of the Ground Lessee’s rights Lease upon demand by Lender made at any time within ninety (90) days prior to the last day upon which any such option may be exercised, and remedies under Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the Ground Leasename of and upon behalf of Borrower should Borrower fail to do so, including without limitation any rights which power of first refusal or any purchase rights, are subject attorney shall be irrevocable and shall be deemed to and subordinate to this Instrumentbe coupled with an interest.
Appears in 1 contract
Sources: Loan Agreement (RFS Partnership Lp)
Ground Lease. (a) Tenant acknowledges that the Premises, the Project, and this Lease are and shall remain subject and subordinate to the Ground Lessee Lease and Borrower have 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 this Instrument mortgaging their separate estates 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 Property for form attached hereto as Exhibit K (the purpose "LEASE SUBORDINATION AGREEMENT") or such other instruments, confirming such subordination and instruments of granting 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, (i) the final design and aesthetic of the Premises and the Project, (ii) any Transfer, and (iii) any financing to be secured by Tenant's interest in this Lease, may be subject to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear requirements of the Ground Lease at foreclosure saleand/or the Development Rights Agreement and/or to the approval of Ground Lessor.
(b) Tenant shall be responsible for, and hereby covenants to satisfy in a timely fashion, any and all obligations, covenants, responsibilities, and/or indemnities binding on Landlord as holder of the ground lessee's interest under the Ground Lease or as a party to the Development Rights Agreement (collectively, the "GROUND LEASE OBLIGATIONS"), including, 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 Lessee Lease (but excluding the payment of the annual rent provided for in the Ground Lease (which shall be governed by the terms and Borrower hereby jointly conditions of the Office / Lab Lease)), the payment of the rent provided for in the Development Agreement, and severally waive 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, whether presently existing or subsequently accruingexcept to the extent, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise.
(b) 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 and only to the extent extent, that the Development Rights Deficiency is attributable to the gross negligence or willful misconduct of Ground Lessee’s interest 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 the Property any way arise out of, are connected with, or other property subject relate 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 Lessee, 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 Development Rights Deficiency other than the Property or other property subject to any security interest securing the Notea Landlord Caused Development Rights Deficiency.
(c) Ground Lessee and Borrower 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 Ground Lease and the Property shall be subject to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless of whether such 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 the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Ground Lease. (a) Borrower will: (i) pay the rent required by the Ground Lessee Lease as the same becomes due and payable; (ii) promptly perform and observe all of the material covenants, agreements, obligations and conditions required to be performed and observed by Borrower under the Ground Lease, and do all things necessary to preserve and keep unimpaired its rights thereunder; (iii) promptly notify Lender in writing of the commencement of 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 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 executed this Instrument mortgaging their separate estates 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 Borrower in the Property for performance or observance of any of the purpose terms, covenants, or conditions on the part of granting to the Lender such lien as would cause the fee simple title to the Property Borrower to be sold free and clear 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 at foreclosure sale. and promptly cause a copy of each such notice to be delivered to Lender; and (viii) promptly notify Lender in writing of any request made by either party to the Ground Lessee Lease to the other party thereto for arbitration or appraisal proceedings pursuant to the Ground Lease, and Borrower hereby jointly of the institution of any arbitration or appraisal proceedings and severally waive any right, arising at law promptly deliver to Lender a copy of the determination of the arbitrators or appraisers in equity, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwiseeach such proceeding.
(b) Except as specified set forth in Article 11 of the Ground Lease in connection with the transfer of fee title to the Property to Borrower, Borrower will not surrender the Ground Lease or Borrower's leasehold estate and 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, modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, and as further security for the repayment of the indebtedness hereby secured and for the performance of the covenants, agreements, obligations and conditions herein and in the Ground 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, 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 will not reject the Ground Lease pursuant to Section 11.02365(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 Ground Lease 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 result of the commencement of a proceeding under the federal bankruptcy laws by or against Borrower or any action commenced lessor under the Ground Lease, including, without limitation, the right to enforce assume or reject, or to compel the Obligations created assumption or arising rejection of the Ground Lease 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 shall be void and of no force and effect. No release or forbearance of any of Borrower's obligations as lessee under the Ground Lease, whether pursuant to the Ground Lease or otherwise, shall release Borrower from any of its obligations under this Security 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 11.01including, (i) any execution on such judgment or decreebut not limited to, Borrower's obligations with respect to the assets of Ground Lessee, 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 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 rent as to Ground Lessee, Borrower, or any other party, or any other act or thing which, but provided for this provision, would so release, impair, or subordinate.
(d) Ground Lessee and Ground Lessee’s interest in the Ground Lease and the Property shall be subject to observance and performance of all of the provisions covenants, agreements, obligations and 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 Section 5.01such estates either in Borrower or in a third party by purchase or otherwise.
(ec) Under 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 circumstances 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 or any such certificate within twenty (20) days after Lender's demand therefor.
(d) Borrower will furnish to Lender, upon demand, proof of its successors or assigns have any obligation or liability payment of any kind or nature based upon or arising under all items which are required to be paid by Borrower pursuant to the Ground Lease, regardless of whether such 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 the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Ground Lease. Grantor represents, warrants, covenants and agrees as follows:
(a) The Ground Lessee Lease is in full force and Borrower 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 executed this Instrument mortgaging their separate estates in the Property for the purpose of granting been paid to the Lender such lien as would cause extent they are payable on or before the fee simple title to date hereof; (c) Grantor enjoys the Property to be sold free quiet and clear peaceful possession of the Leasehold Premises; (d) Grantor is not in default under any of the terms of the Ground Lease 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, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise.
(b) 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 decreethere are no circumstances which, with respect to the assets of Ground Lessee, 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 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 passage of time or waiver the giving of right notice or remedy as to Ground Lessee, Borrower, or any other party, or any other act or thing which, but for this provisionboth, would so releaseconstitute a default under the Ground Lease; (e) To the best knowledge of Grantor, impairthe 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, or subordinate.
(d) Ground Lessee accurate and Ground Lessee’s interest in complete copy of the Ground Lease and the Property all amendments, modifications and supplements thereto; (g) Grantor shall be subject to promptly and faithfully pay all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising 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, regardless of whether such obligation or liability ; (i) is an obligation 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 liability 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 either ground lessee any of the terms, covenants or ground lessor under provisions of the Ground Lease, or (ii) arises either before suffer to exist any such termination or after Lender acquired title alteration, without the prior written consent of the Beneficiary, all of such rights being hereby assigned to the Property.
Beneficiary as further collateral security for the Obligations secured hereby, and any action taken by Grantor in violation of such agreement shall be null and void and of no force or effect whatsoever; (fj) Grantor shall not waive, excuse or discharge any of the obligations and agreements of the landlord under the Ground Lessee 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 property demised by the Ground Lease or consent to any restriction, covenant or 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 Borrower each hereby acknowledge void and agree of no force or effect whatsoever and Grantor shall enforce the obligations of the landlord under the Ground Lease to the end that Grantor may enjoy all of the Ground Lessee’s rights and remedies granted to it under the Ground Lease;
(k) Grantor shall immediately notify the Beneficiary, including without limitation in writing, of any rights default by Grantor in the observance or performance of first refusal any of the terms, covenants and conditions to be observed or performed by Grantor under the Ground Lease or of any notice of any such default received by Grantor under the Ground Lease or other notice asserting lack of compliance with the Ground Lease, or any purchase rightsnotice from any party of termination or purported termination thereof, are subject without giving effect to any grace periods or times to cure, and subordinate shall promptly deliver to this Instrument.the Beneficiary copies of each such notice of default or notice of termination and all other notices, communications, plans, specifications and other similar instruments received or delivered by Grantor in connection with the Ground Lease; and
Appears in 1 contract
Sources: Deed of Trust and Security Agreement (Panda Interfunding Corp)
Ground Lease. (a) Ground Lessee and Borrower have executed this Instrument mortgaging their separate estates in Tenant acknowledges that the Property for Premises, the purpose of granting to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear of the Ground Lease 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, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise.
(b) 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 Lessee, shall be limited to the Property or other property subject to any security interest securing the NoteProject, and (ii) Ground Lessee this Lease are and 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 remain subject and subordinate 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 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 Ground Lease and the Property 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, (i) the final design and aesthetic of the Premises and the Project, (ii) any Transfer, (iii) any financing to be secured by Tenant's interest in this Lease, and (iv) the "EXPANSION RIGHT" (as defined in Section 40(a) below), may be subject to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless of whether such 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 the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all requirements of the Ground Lessee’s rights and remedies under Lease and/or the Development Rights Agreement and/or to the approval of Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this InstrumentLessor.
Appears in 1 contract
Ground Lease. (a) (4) The Ground Lessee 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, (iii) all rents, additional rents and other sums due and payable under the Ground Lease have been paid in full, (iv) neither Mortgage Borrower have executed this Instrument mortgaging their separate estates in nor the Property lessor under the Ground Lease has commenced any action or given or received any notice for the purpose of granting terminating the Ground Lease, (v) to Borrower’s knowledge, the Lender lessor under any Ground Lease, as debtor in possession or by a trustee for such lien as would cause lessor, has not given any notice of, and Mortgage Borrower has not consented to, any attempt to sell or transfer the fee simple title to the Property to be sold Ground Lessor Estate free and clear of the Ground Lease at foreclosure sale. under Section 363(f) (or any similar provision) of the U.S. Bankruptcy Code, and (vi) to Borrower’s knowledge, the lessor under any Ground Lessee Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and Borrower hereby jointly and severally waive the Ground Lessor Estate is not an asset being administered in any rightvoluntary or involuntary bankruptcy, arising at law reorganization or in equity, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise.insolvency proceeding;
(b) Except as specified in Section 11.02, in any action commenced to enforce The Ground Lease permits 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 Lessee, 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 Instrumentlessee and/or sublessee, nor shall execution on any judgment or decree resulting from any action to enforce the Obligations be or be caused as applicable, thereunder to be a lien on any other asset of Ground Lessee other than encumbered by the Property or other property subject to any security interest securing the Note.Mortgages;
(c) The Ground Lessee and Borrower each agree that neither this Instrument nor any obligation Lease or a memorandum of Ground Lessee and Borrower hereunder will be releasedLease has been recorded and, impaired or subordinated by any amendment to this Instrument or any other document or extension of time or waiver of right or remedy except as to Ground Lesseeindicated in the Owner’s Insurance Policy, Mortgage 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 Ground Lease and the Property shall be is not subject to all any Lien (other than the applicable Mortgage); ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇
(d) Except as set forth on Schedule 4.44, Mortgage Borrower’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 provisions trustee of Section 5.01.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) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability Except as set forth on Schedule 4.44, the Ground Lease requires the lessor thereunder to give notice of any kind 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 or nature based upon the lessor under the Ground Lease to terminate the Ground Lease shall not be effectively exercised by Mortgage Borrower or arising 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 is permitted an opportunity (including, where necessary, sufficient time to gain possession of the interest of Borrower under the Ground Lease) to cure any default under the Ground Lease, regardless which is curable after the receipt of whether such obligation or liability 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 Mortgage Borrower in a bankruptcy proceeding;
(i) is an obligation 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 liability part of either ground lessee the applicable Ground Leased Property or ground lessor under to the 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 the manner, and subject to the provisions of, the Ground Lease, or ;
(iij) arises either before or after The Ground Lease does not impose commercially unreasonable restrictions on subletting; and
(k) Borrower shall not permit Mortgage Borrower to exercise its purchase option right under the Portsmouth Ground Lease without first satisfying any conditions precedent that may be reasonably imposed by Lender acquired title to the Property.
exercise of such purchase option (f) Ground Lessee and Borrower each hereby acknowledge and agree that all including, without limitation, a date down of the Ground Lesseeapplicable Owner’s rights and remedies under Insurance Policy, together with any endorsements necessary to insure Mortgage Borrower’s ownership of the Ground Lease, including without limitation any rights fee portion of first refusal or any purchase rights, are subject to and subordinate to this Instrumentthe applicable Property). ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Ground Lease. (a) Ground Lessee Borrower shall (i) pay all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by Borrower, as tenant under and pursuant to the Lender such lien as would cause provisions of the fee simple title to Ground Lease, (ii) diligently perform and observe all of the Property to be sold free terms, covenants and clear conditions of the Ground Lease 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, on the part of Borrower, or anyone holding or claiming under or through themas tenant thereunder, to have their separate estates sold separately upon foreclosurebe performed and observed, whether under principles (iii) promptly notify Lender of marshalling the giving of any written notice by the Ground Lessor to Borrower of any default by Borrower in the performance or otherwiseobservance 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 five (5) Business Days of receipt, and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the Ground Lessor or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Borrower’s receipt.
(b) Except Borrower shall not, without the prior consent of Lender, surrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend the Ground Lease, either orally or in writing. Borrower hereby assigns to Lender, 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 further 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 Lessee, 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 and performance of the indebtedness or other Obligations secured by this obligations and for the performance and observance of the terms, covenants and conditions of the Security Instrument, nor 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 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 Lender 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 void and of Ground Lessee other than the Property or other property subject to any security interest securing the Noteno force and effect.
(c) If Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lessee Lease on the part of 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 Borrower to be performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If the Ground Lessor shall deliver to Lender a copy of any 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 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 each agree that neither this Instrument nor hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any obligation 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 Lessee and Borrower hereunder will be releasedLease to any mortgage, impaired security deed, lease or subordinated by any amendment to this Instrument other interest on or in the landlord’s interest in all or any other document or extension part of time or waiver the Property, unless, in each such case, the written consent 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 subordinateLender shall have been first had and obtained.
(d) Ground Lessee and Ground Lessee’s interest 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 9.3 hereof) without prior written consent of Lender. Each such sublease hereafter made shall provide that (i) in the event of the termination of the Ground Lease, upon Ground Lessor’s election, 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 subject sublet pursuant to all the terms of the provisions of Section 5.01.
(e) Under no circumstances this subsection, such sublease shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless of whether such 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 be deemed to be included in the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Sources: Term Loan Agreement (Invesco Real Estate Income Trust Inc.)
Ground Lease. From and after the Funding Date:
(a) Ground Lessee shall (i) pay all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by Ground Lessee, as tenant under and pursuant to the Lender such lien as would cause provisions of the fee simple title to Ground Lease, (ii) diligently perform and observe all of the Property to be sold free terms, covenants and clear conditions of the Ground Lease at foreclosure saleon the part of Ground Lessee, as tenant thereunder, (iii) promptly notify Administrative Agent of the giving of any notice by the landlord under the Ground Lease to any Borrower of any default by Ground Lessee, as tenant thereunder, and deliver to Administrative Agent a true copy of each such notice within five (5) days of receipt, and (iv) promptly notify Administrative Agent of any bankruptcy, reorganization or insolvency of the landlord under the Ground Lease or of any notice thereof, and deliver to Administrative Agent a true copy of such notice within five (5) days of such Borrower’s receipt. Ground Lessee and Borrower hereby jointly and severally shall not, without the prior consent of Administrative Agent, surrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter, amend or waive any rightmaterial term of the Ground Lease, arising at law either orally or in equitywriting, whether presently existing and if Ground Lessee shall default in the performance or subsequently accruingobservance of any term, whether to covenant or condition of the Ground Lease on the part of Ground Lessee, Borroweras tenant thereunder, or anyone holding or claiming and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Administrative Agent shall have the right, but shall be under or through themno obligation, to have their separate estates sold separately 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 Ground Lessee to be performed or observed on behalf of Ground Lessee, to the end that the rights of 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 Administrative Agent a copy of any notice of default under the Ground Lease, such notices shall constitute full protection to Administrative Agent for any action taken or omitted to be taken by Administrative Agent, in good faith, in reliance thereon. Ground Lessee shall exercise each individual option, if any, to extend or renew the term of the Ground Lease upon foreclosuredemand by Administrative Agent made at any time within one (1) year prior to the last day upon which any such option may be exercised, whether under principles and Ground Lessee hereby expressly authorizes and appoints Administrative Agent its attorney-in-fact to exercise any such option in the name of marshalling or otherwiseand upon behalf of Ground Lessee, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
(b) Except 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 specified in permitted pursuant to Section 11.02, in any action commenced to enforce 7.16) without prior written consent of Administrative Agent. To the Obligations created extent that Administrative Agent’s consent or arising approval is required under this Instrument, Section 7.23 any resulting judgment or decree such proposed sublease submitted to Administrative Agent for approval shall be enforceable against Ground Lessee only 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 extent contrary contained herein with respect to the Ground Lease:
(i) The Liens of the applicable Mortgage attach to all of Ground Lessee’s interest in rights and remedies at any time arising under or pursuant to subsection 365(h) of the Property or other property subject to any security interest securing the Note. Subject to Section 11.01Bankruptcy Code, (i) any execution on such judgment or decreeincluding, with respect to the assets without limitation, all of Ground Lessee’s rights, shall be limited as debtor, to remain in possession of the Property or other property subject to any security interest securing the Note, and French Quarter Hotel Property;
(ii) Ground Lessee shall not 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 personally liable 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 the indebtedness or other Obligations secured by this Instrument, nor shall execution on any judgment or decree resulting damages arising from any action to enforce rejection by Ground Lessee under the Obligations be Bankruptcy Code. Administrative Agent and Ground Lessee shall proceed jointly or be caused to be a lien on any other asset in the name of Ground Lessee other than the Property or other property subject to any security interest securing the Note.
(c) Ground Lessee and Borrower 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 Ground Lease and the Property shall be subject to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability respect of any kind claim, suit, action or nature based upon or arising under proceeding relating to the rejection of the Ground Lease, regardless including, without limitation, the right to file and prosecute any proofs of whether such obligation 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 liability 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 (iincluding, without limitation, reasonable attorneys’ fees and costs) is an obligation incurred in connection with the exercise of any of its rights or liability remedies in accordance with the applicable provisions hereof;
(iv) If, pursuant to subsection 365(h) of either ground lessee or ground lessor under 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 (ii) arises either before notice shall be commenced or after Lender acquired title filed in respect of Ground Lessee of all or any part any Collateral Property subject to the Property.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
(fvi) Ground Lessee and Borrower each hereby acknowledge and agree that all shall promptly, after obtaining knowledge of the such filing, notify Administrative Agent orally of any filing by or against Ground Lessee’s rights and remedies Lessor of a petition under the Bankruptcy Code. Ground LeaseLessee shall thereafter promptly give written notice of such filing to Administrative Agent, including without limitation setting forth any rights information available to Ground Lessee as to the date of first refusal or 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 purchase rightsand all notices, are subject summons, pleadings, applications and other documents received by Administrative Agent in connection with any such petition and any proceedings relating to and subordinate to this Instrumentsuch petition.
Appears in 1 contract
Sources: Credit Agreement (FelCor Lodging LP)
Ground Lease. (a) Each Mortgagor shall promptly:
(1) 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 Lessee Lease to which such Mortgagor is a party, and Borrower have executed this Instrument mortgaging their separate estates do all things necessary to preserve and to keep unimpaired its rights thereunder;
(2) Notify Bank of any material default in the Property for performance or observance of any of the purpose covenants or agreements on the part of granting such Mortgagor to be performed or observed by such Mortgagor under the Ground Lease to which such Mortgagor is a party, 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 Lender lessor thereunder; and
(3) Cause a copy of each such lien 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 would 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 of any notice of default by the applicable Mortgagor 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 such Mortgagor or by any party on behalf of such Mortgagor. 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) No Mortgagor shall surrender its leasehold estate under the Ground Lease to which such Mortgagor is a party, nor terminate or cancel the Ground Lease to which such Mortgagor is a party, and Mortgagor shall not modify, change, supplement, alter or amend in any material respect the Ground Lease to which such Mortgagor is a party, either orally or in writing, and any attempt on the part of any Mortgagor to exercise any such right without the consent of Bank shall be null and void.
(e) The fee simple title to the Property to be sold free and clear of the properties demised by each Ground Lease at foreclosure sale. Ground Lessee and Borrower hereby jointly the leasehold estate shall not merge, but always shall remain separate and severally waive any rightdistinct, arising at law notwithstanding the union of such estates either in the lessor or in equity, whether presently existing the lessee under such Ground Lease or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling in a third party by purchase or otherwise.
(bf) Except as specified in Section 11.02, Each Mortgagor shall give Bank prompt notice of the commencement of any arbitration or appraisal proceeding pursuant to the Ground Lease to which such Mortgagor is a party. Bank shall have the right to intervene and participate in any action commenced to enforce the Obligations created or arising under this Instrument, any resulting judgment or decree such proceeding and each Mortgagor shall be enforceable against Ground Lessee only 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, each Mortgagor shall exercise all rights of arbitration or appraisal conferred upon it by the Ground Lessee’s interest 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 Property performance or observance of any covenant or agreement contained in the Ground Lease to which such Mortgagor is a party, or in this Deed of Trust, on the part of such Mortgagor to be performed or 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 such Mortgagor the arbitrator(s) or appraiser(s) in such proceeding.
(g) Each Mortgagor shall use its reasonable efforts to obtain from the lessor under the Ground Lease to which such Mortgagor is a party, and deliver to Bank, within twenty (20) days after written request by Bank, a statement in writing certifying that such Ground Lease is unmodified and in full force and effect (or if modified, stating the modifications) and the dates to which the ground rent and other property subject charges, if any, have been paid in advance, and stating whether or not, to the best knowledge of the signer of such certificate, such Mortgagor is in default in the performance of any security interest securing covenant or agreement contained in such Ground Lease, and, if so, specifying each such default of which the Note. Subject signer may have knowledge.
(h) Each Mortgagor, at least six (6) months prior to Section 11.01the 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 Ground Lease (but in no event earlier than permitted by the applicable Ground Lease), (i) any execution on duly shall exercise such judgment or decree, with respect to the assets of Ground Lessee, shall be limited to the Property or other property subject to any security interest securing the Noteoption, and (ii) Ground Lessee shall not be personally liable for give immediate notice thereof to Bank; if such Mortgagor shall fail so to do, Bank shall have, and is hereby granted, the payment irrevocable right to exercise any such option, either in its own name and behalf, or in the name and behalf of the indebtedness or other Obligations secured by this Instrumentsuch Mortgagor, nor as Bank 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 Notein its sole discretion determine.
(ci) Each Mortgagor promptly shall notify Bank of any change in ground rent payable by the lessee under the Ground Lessee and Borrower each agree Lease to which such Mortgagor is a party.
(j) In the event that neither this Instrument nor any obligation proceeds of Ground Lessee and Borrower hereunder will be released, impaired or subordinated by insurance on any amendment to this Instrument or any other document or extension part of time or waiver of right or remedy as to Ground Lessee, Borrowerthe Mortgaged Property, or any other partyproceeds of any award for the taking by eminent domain of any part of the Mortgaged Property, 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 Ground Lease and the Property shall be subject deposited with any Person pursuant to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability requirements of any kind or nature based upon or arising under the Ground Lease, regardless of whether such 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 the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all applicable Mortgagor promptly shall notify Bank of the Ground Lessee’s rights name and remedies under address of such person and the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrumentamount so deposited.
Appears in 1 contract
Sources: Leasehold Deed of Trust / Deed of Trust and Security Agreement (CNL Healthcare Properties, Inc.)
Ground Lease. (a) Borrower shall not, without Lender’s written consent, fail to exercise any option or right to renew or extend the term of any Ground Lessee 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 not be required to exercise any particular such option or right to renew or extend to the extent Borrower shall have executed this Instrument mortgaging their separate estates 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 so long as any Mezzanine Loan is outstanding, the applicable Mezzanine Borrower shall have received the prior written consent of the 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, 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 Property for name of and on behalf of a nominee of Lender, as Lender may determine in the purpose exercise of granting to the Lender such lien as would cause the fee simple title to the Property to be sold free its sole and clear of the Ground Lease 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, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwiseabsolute discretion.
(b) Except as specified in Section 11.02Borrower shall not waive, excuse, condone or in any action commenced to enforce 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 Obligations created or arising under this Instrument, any resulting judgment or decree shall be enforceable against related Ground Lessee only to Lease without the extent prior written consent 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 Lessee, 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 NoteLender.
(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 Lessee and Borrower each agree that neither this Instrument nor Lease. Consent to one amendment, change, agreement or modification of any obligation Ground Lease 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 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 LesseeLessor’s interest in the any Ground Lease and the Property by Borrower or any Affiliate of Borrower shall be subject accomplished by Borrower in such a manner so as to all avoid a merger of the provisions interests of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the lessor and lessee in such Ground Lease, regardless of whether unless consent to such obligation or liability (i) merger 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 the Propertygranted by Lender.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Sources: Loan Agreement (ESH Hospitality LLC)
Ground Lease. (a) Ground Lessee Borrower shall (i) pay all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by Borrower, as tenant under and pursuant to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear provisions of the Ground Lease (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, in all material respects, all of the terms, covenants and conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed and observed, and (iii) promptly notify Agent of the receipt of any written notice given by the landlord under the Ground Lease to Borrower with respect to the Ground Lease Put or the Ground Lease ROFR and any notice of any default by 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 Agent a true copy of each such notice within three (3) Business Days of receipt and (iv) promptly notify Agent of any bankruptcy, reorganization or insolvency of the landlord under the Ground Lease or of any notice thereof, and deliver to Agent a true copy of such notice within three (3) Business Days of Borrower’s receipt. Borrower shall not, without the prior consent of Agent (not to be unreasonably withheld, conditioned or delayed), surrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend the Ground Lease, either orally or in writing. Borrower hereby assigns to Agent, 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 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 Borrower, as tenant thereunder (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, 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 Borrower to be performed or observed on behalf of Borrower, to the end that the rights of 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 Agent a copy of any notice of default under the Ground Lease, such notice shall constitute full protection to Agent for any reasonable action taken or omitted to be taken by Agent, in good faith, in reliance thereon. Borrower shall exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Agent made at foreclosure sale. Ground Lessee any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby jointly expressly authorizes and severally waive appoints Agent its attorney-in-fact to exercise any rightsuch option in the name of and upon behalf of Borrower, arising at law 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 equitythe landlord’s interest in all or any part of the Property, whether presently existing unless, in each such case, the written consent (not to be unreasonably withheld, conditioned or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to delayed) of Agent shall have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwisebeen first had and obtained.
(b) Except Notwithstanding anything contained in the Ground Lease to the contrary, Borrower shall not further sublet any portion of the Property (other than as specified 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 Section 11.02the 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 commenced 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 enforce the Obligations 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 arising 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 Instrument, Agreement or the other Loan Documents and any resulting judgment 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 decree shall be enforceable against disaffirmance of the Ground Lessee only Lease pursuant to the extent of Ground LesseeBankruptcy Code, or any other law affecting creditor’s interest in the Property or other property subject to any security interest securing the Note. Subject to Section 11.01rights, (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 execution on comparable federal or state statute or law, and any election by Borrower made without such judgment 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 decreeother 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 assets 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 LesseeLease 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 other property subject 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 security interest securing the NoteLender’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 (iiix) Borrower shall provide Agent an Officer’s Certificate certifying that, as of the consummation of the Ground Lessee 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 personally liable for the payment of the indebtedness or other Obligations secured by this Instrumentunreasonably withheld, 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 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 Ground Lease and the Property shall be subject to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under terminate the Ground Lease, regardless of whether such 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 the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Sources: Loan Agreement (Black Creek Diversified Property Fund Inc.)
Ground Lease. (a) Ground Lessee Borrower will, and Borrower have executed this Instrument mortgaging their separate estates will cause Owner to, comply in all material respects with the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property to be sold free terms and clear conditions of the Ground Lease at foreclosure saleLease. Ground Lessee Borrower will not, and Borrower hereby jointly and severally waive any rightwill not permit Owner to, arising at law do or in equitypermit anything to be done, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrowerthe doing of which, or anyone holding refrain from doing anything, the omission of which, will impair or claiming tend to impair the security of the Premises under the Ground Lease or through themwill 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 have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwiseLender.
(b) Except as specified in Section 11.02Borrower shall, and shall cause Owner to, enforce the Ground Lease and not terminate, modify, cancel, change, supplement, alter or amend the Ground Lease, or waive, excuse, condone or in any action commenced to enforce the Obligations created way release or arising under this Instrument, discharge Ground Lessor of or from 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 Lessee, 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 material covenants and conditions to be a lien on any other asset of performed or observed by Ground Lessee other than the Property or other property subject to any security interest securing the NoteLessor.
(c) Lender shall have the right, but not the obligation, to perform any obligations of Borrower or Owner under the terms of the Ground Lessee 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 each agree that neither this Instrument nor to Lender during the continuance of an Event of Default on demand. No performance by Lender of any obligation obligations 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 Owner shall constitute a waiver of right any Event of Default arising by reason of Borrower’s or remedy as Owner’s failure to Ground Lesseeperform the same. If Lender shall make any payment or perform any act or take action in accordance with this Section 2.36(c), BorrowerLender will notify Borrower of the making of any such payment, the performance of any such act, or the taking of any other party, or any other act or thing which, but for this provision, would so release, impair, or subordinatesuch action.
(d) Ground Lessee and Ground Lessee’s interest in Borrower shall cause 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 of the Property 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 on behalf of Owner to so exercise such option if Borrower fails to cause Owner to exercise as herein required, which power of attorney shall be subject irrevocable and shall be deemed to all 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 provisions Ground Lease within five (5) days of Section 5.01the exercise of any such option.
(e) Under no circumstances Subject to Mortgage Lender’s rights under the Mortgage Loan, Borrower shall cause Owner to assign, transfer and set over to Lender or all of Borrower’s claims and rights to the payment of damages arising from any rejection by the Ground Lessor of its successors or assigns have the Ground Lease under the Bankruptcy Code. Borrower shall notify Lender promptly (and in any obligation or liability event within ten (10) days) of any kind claim, suit, action or nature based upon or arising under proceeding relating to the rejection of the Ground Lease. Lender is hereby irrevocably appointed as Borrower’s attorney-in-fact, regardless coupled with an interest, with exclusive power to file and prosecute, to the exclusion of whether such obligation or liability (i) is an obligation or liability Borrower, any proofs of either ground lessee or ground lessor claim, complaints, motions, applications, notices and other documents, in any case in respect of the Ground Lessor under the Ground LeaseBankruptcy 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 (ii) arises either before 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 acquired title 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 Propertyprior 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 Lessee and Borrower each hereby acknowledge and agree that all 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 LesseeLessor’s rights and remedies 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, including without limitation after obtaining knowledge thereof, notify Lender of any rights filing by or against the Ground Lessor of first refusal 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 purchase rightsand all notices, are subject 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 and subordinate to this Instrumentthe 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. Borrower will fully and faithfully comply at all times with each of the following covenants:
(a) Ground Lessee (i) Borrower shall timely pay all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by it under and pursuant to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear provisions of the Ground Lease, (ii) Borrower will diligently perform, observe and comply with all of the other terms, covenants, conditions, promises, duties, liabilities, obligations and provisions (other than those of a de minimis nature) of the Ground Lease, (iii) Borrower shall promptly notify Agent in writing of any event of default under the Ground Lease 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 actually known to Ground Lessee, Borrower, or anyone holding or claiming under or through themand shall send to Agent a true copy of any notice of default served on Borrower relating to the Ground Lease within five (5) Business Days of receipt; provided that if Agent is copied on any such notice, Borrower shall be deemed to have their separate estates sold separately notified Agent of such default notice, (iv) Borrower shall promptly notify Agent upon foreclosureobtaining knowledge thereof of any bankruptcy, whether reorganization or insolvency under principles the Ground Lease or of marshalling any notice thereof, and deliver to Agent a true copy of such notice within 45 US_ACTIVE\123288794\V-8 five (5) Business Days of ▇▇▇▇▇▇▇▇’s receipt thereof, together with copies in each case of all notices, pleadings, schedules and similar matters received by Borrower in connection with such bankruptcy, reorganization or otherwiseinsolvency within five (5) Business Days after receipt thereof, and (v) Borrower shall not surrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease without first obtaining the prior written consent of Agent, which consent may be withheld or given in Agent's sole and absolute discretion.
(b) Except as specified in Section 11.02Borrower shall give Agent duplicates of all written notices, in any action commenced reports, statements and the like which it is obligated or elects to enforce give under the Obligations created Ground Lease or arising which it receives under this Instrument, any resulting judgment or decree shall be enforceable against the Ground Lessee only to the extent of Ground Lessee’s interest Lease. Whenever in the Property Ground Lease Borrower shall have the right to request any information, statements, documents, canceled receipts or other property subject anything else whatsoever, Agent shall have the right to any security interest securing request the Note. Subject to Section 11.01, (i) any execution on such judgment or decree, with respect to the assets of Ground Lessee, shall be limited to the Property or other property subject to any security interest securing the Notesame from Borrower hereunder, and (ii) Ground Lessee such information, statements, documents, canceled receipts and other requested material shall not thereafter be personally liable for given to Agent as if Agent had requested 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 Notesame.
(c) If Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lessee Lease (other than those defaults of a de minimis nature), as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Agent and any Person designated by it shall have the right, upon ten (10) Business Days’ prior notice to Borrower each agree (unless Agent has reasonably determined that neither this Instrument nor 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 obligation 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 Lessee Lease on the part of Borrower to be performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default. If Borrower hereunder shall deliver to Agent a copy of any notice of default under the Ground Lease, such notice shall constitute full protection to Agent for any action taken or omitted to be taken by Agent, 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 under the Ground Lease will be releaseddue and payable by Borrower within ten (10) Business Days after written demand by Agent and will bear interest at the Default Rate, impaired or subordinated by any amendment to this Instrument or any other document or extension from the date 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 subordinatethe demand until repaid.
(d) Ground Lessee and Ground Lessee’s interest In the event that Agent determines from time to time in good faith, but in no event more than one (1) time in any calendar year or otherwise during the continuance of a Default or an Event of Default, that receipt of an estoppel certificate relating to the Ground Lease executed by Borrower is necessary or appropriate, then upon 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 Property shall be subject to all terms of the provisions of Section 5.01Ground Lease.
(e) Under no circumstances Agent shall Lender 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 of its successors arbitration proceedings, which would reasonably be expected to have a Material Adverse Effect on Agent’s security or assigns have any obligation or liability of any kind or nature based upon or arising ▇▇▇▇▇▇▇▇’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, regardless but not limited to, reasonable legal fees of whether outside counsel and disbursements) incurred in any such 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 the Propertyproceedings.
(f) Ground Lessee and Within thirty (30) days after Agent’s reasonable request, Borrower each hereby acknowledge and agree that will submit reasonably satisfactory evidence of payment of all of the Ground Lessee’s rights and remedies its monetary obligations to under the Ground Lease. US_ACTIVE\123288794\V-8
(g) Borrower shall not, including without limitation 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 refusal 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 purchase rights, are subject time hereafter be reasonably required by Agent to effectuate and subordinate carry out the assignment made pursuant to this Instrument.Section 8.18
Appears in 1 contract
Sources: Term Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)
Ground Lease. (a) Ground Lessee Borrower shall, at Borrower’s sole cost and Borrower have executed this Instrument mortgaging their separate estates in expense, promptly and timely perform and observe all the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property material terms, covenants and conditions required to be sold free performed and clear of observed by Borrower as lessee under the Ground Lease at foreclosure sale(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 Lessee and Borrower hereby jointly and severally waive any right, arising at law or in equity, whether presently existing or subsequently accruing, whether Lease to the applicable Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwiseLessor.
(b) Except as specified 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 11.022.5.2(l), in any action commenced to enforce the Obligations created or arising under this Instrument, any resulting judgment or decree if Borrower shall be enforceable against in default under the Ground Lessee only Lease, then, subject to the extent terms of the Ground LesseeLease, Borrower shall grant Lender the right (but not the obligation), to cause the default or defaults under the Ground Lease to be remedied and otherwise exercise any and all rights of Borrower under the Ground Lease, as may be necessary to prevent or cure any default provided such actions are necessary to protect Lender’s interest in the Individual Property or other property under the Loan Documents, and Lender shall, subject to the rights of Tenants, Permitted Encumbrances and hotel guests and patrons, have the right to enter all or 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 Lessee, 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 portion of the indebtedness related Ground Leased Property at such times and in such manner as Lender deems necessary, to prevent or other Obligations secured by this Instrumentto cure any such default; provided that in each case, nor shall execution on any judgment or decree resulting from any action such actions are necessary to enforce protect Lender’s interest under 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 NoteLoan Documents.
(c) The actions or payments of Lender to cure any default by Borrower under the Ground Lessee Lease shall not remove or waive, as between Borrower and Lender, the default that occurred under this Agreement by virtue of the default by Borrower each agree that neither 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 Instrument nor any obligation of Ground Lessee Agreement from the date such sum is expended to and Borrower hereunder will including the date the reimbursement payment is made to Lender. All such indebtedness shall be released, impaired or subordinated deemed to be secured 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 subordinatethe related Mortgage.
(d) Borrower shall notify Lender promptly in writing of the occurrence of any material default by Ground Lessee and Ground Lessee’s interest in Lessor under the Ground Lease and or following the Property receipt by Borrower of any written notice from Ground Lessor under the Ground Lease noting or claiming the occurrence of any default by Borrower under the Ground Lease or the occurrence of any event that, with the passage of time or service of notice, or both, would constitute a default by Borrower under the Ground Lease. Borrower shall be subject promptly deliver to all Lender a copy of the provisions any such written notice of Section 5.01default.
(e) Under 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 circumstances 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 successors rights or assigns have any obligation or liability 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 kind 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 nature based 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 arising 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, regardless and (y) be entitled to exercise all of whether such obligation or liability (i) is an obligation or liability of either ground lessee or ground lessor the rights and benefits accruing to Borrower under the Ground Lease. At such time as Lender shall request, Borrower agrees to execute and deliver and use commercially reasonable efforts to cause any third party to execute and deliver to Lender 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 (ii) arises either before or after Lender acquired title to the Propertyagainst Borrower.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Ground Lease. Borrower shall (ai) Ground Lessee pay all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by Borrower, as tenant under and pursuant to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear provisions of the Ground Lease at foreclosure sale. Ground Lessee and (for the avoidance of doubt, Borrower hereby jointly covenants and severally waive 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 rightco-tenant thereunder (if any)), arising at law or (ii) diligently perform and observe, in equityall material respects, whether presently existing or subsequently accruingall of the terms, whether to covenants and conditions of the Ground Lessee, Lease on the part of Borrower, or anyone holding or claiming under or through themas tenant thereunder, to have their separate estates sold separately upon foreclosurebe performed and observed, whether and (iii) promptly notify Agent of the receipt of any written notice given by the landlord under principles of marshalling or otherwise.
(b) Except as specified in Section 11.02, in any action commenced the Ground Lease 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, Borrower with respect to the assets Ground Lease Put or the Ground Lease ROFR and any notice of any default by Borrower in the performance or observance of any of the terms, covenants or conditions of the Ground LesseeLease on the part of Borrower, shall as tenant thereunder, to be limited to the Property performed or other property subject to any security interest securing the Noteobserved, and deliver to Agent a true copy of each such notice within three (ii3) Business Days of receipt and (iv) promptly notify Agent of any bankruptcy, reorganization or insolvency of the landlord under the Ground Lessee Lease or of any notice thereof, and deliver to Agent a true copy of such notice within three (3) Business Days of Borrower’s receipt. Borrower shall not, without the prior consent of Agent (not to be personally liable unreasonably withheld, conditioned or delayed), surrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend the Ground Lease, either orally or in writing. Borrower hereby assigns to Agent, as further security for the payment and performance of the indebtedness or other Obligations secured by obligations and for the performance and observance of the terms, covenants and conditions of the Mortgage, 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 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 Ground Lease Agreement and the Property shall be subject to other Loan Documents, all of the provisions rights, privileges and prerogatives of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising Borrower, as tenant under the Ground Lease, regardless 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 whether such obligation the leasehold estate created by the Ground Lease or liability termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease in any respect without the prior consent of Agent (inot 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 Borrower, as tenant thereunder (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, 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 Borrower to be performed or observed on behalf of Borrower, to the end that the rights of 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 an obligation or liability 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 Agent a copy of either ground lessee or ground lessor any notice of default under the Ground Lease, such notice shall constitute full protection to Agent for any reasonable action taken or (ii) arises either before omitted to be taken by Agent, in good faith, in reliance thereon. Borrower shall exercise each individual option, if any, to extend or after Lender acquired title to renew the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all term of the Ground Lessee’s rights Lease upon demand by Agent made at any time within one (1) year prior to the last day upon which any such option may be exercised, and remedies under Borrower hereby expressly authorizes and appoints 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 LeaseLease to any mortgage, including without limitation any rights of first refusal security deed, lease or other interest on or in the landlord’s interest in all or any purchase rightspart of the Property, are subject unless, in each such case, the written consent (not to be unreasonably withheld, conditioned or delayed) of Agent shall have been first had and subordinate to this Instrumentobtained.
Appears in 1 contract
Sources: Loan Agreement (Black Creek Diversified Property Fund Inc.)
Ground Lease. (a) The applicable Borrower shall:
(i) Pay (or cause the payment of) all rents, additional rents and other sums required to be paid by such Borrower, as tenant under and pursuant to the provisions of the subject Ground Lessee 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 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 Ground Lessor under any Ground Lease to such Borrower have executed this Instrument mortgaging their separate estates of any default by any Borrower in the Property for performance or observance of any of the purpose terms, covenants or conditions of granting to such Ground Lease on the Lender part of such lien Borrower, as would cause the fee simple title to the Property tenant thereunder, to be sold free performed or observed, and clear deliver to Lender a true copy of the Ground Lease 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, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwiseeach such notice.
(b) Except as specified expressly permitted in Section 11.02this Agreement, in any action commenced to enforce the Obligations created or arising under this Instrument, any resulting judgment or decree Borrowers 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 11.01not, (i) cause or permit the occurrence of any execution on event that would cause a Ground Lease to terminate without notice or action by the landlord thereunder or would entitle such judgment or decreelandlord to terminate such Ground Lease and the term thereof by giving notice to Borrowers, with respect to the assets of Ground Lessee, shall be limited to the Property or other property subject to any security interest securing the Note, and (ii) without the prior consent of Lender, surrender the leasehold estate created by a Ground Lessee shall not be personally liable Lease or terminate or cancel such Ground Lease or (iii) without the prior consent of Lender, change, supplement, alter or 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 indebtedness 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, to surrender the leasehold estate created by such Ground Lease or other Obligations secured 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 this Instrumentsuch Ground Lease or termination, nor cancellation, modification, change, supplement, alteration or amendment of such Ground Lease in any material respect without the prior consent of Lender shall execution on any judgment or decree resulting from any action be void and of no force and effect. Notwithstanding anything herein to enforce the Obligations contrary, and for the avoidance of doubt, the New Orleans Ground Lease may be or be caused to be a lien on any other asset 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 Lessee other than the Property or other property subject to any security interest securing the Note.Lease
(c) 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 any Ground Lessee Lease on the part of 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 the other Loan Documents, and without waiving or releasing any Borrower each agree 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 material terms, covenants and conditions of such Ground Lease on the part of such Borrower, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of such Borrower, to the end that neither this Instrument nor any obligation the rights of the applicable Borrowers in, to and under such Ground Lessee 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 hereunder will be released, impaired or subordinated by any amendment to this Instrument party on behalf of such Borrower. If Lender shall make any payment or perform 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 whichtake action in accordance with the preceding sentence, but 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 this provisionthe 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. Each Borrower hereby agrees to pay to Lender within five (5) Business Days after demand, would all such sums so releasepaid and expended by Lender, impair, or subordinatetogether 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 Lessee and Lessor shall deliver to Lender a copy of any notice of default sent by said lessor to any Borrower, as tenant under a Ground Lessee’s 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 the Ground Lease and the Property shall be subject to all or any part of the provisions Property, unless, in each such case, the written consent of Section 5.01Lender shall have been first had and obtained.
(e) Under no circumstances No Borrower shall Lender acquire or permit any Affiliate or any of its successors or assigns have other entity in which Guarantor owns an interest to acquire, a Ground Lessor's interest in any obligation or liability Ground Lease (i.e., the fee interest in the Property), whether through the exercise of any kind purchase option contained in such Ground Lease or nature based upon or arising under the Ground Lease, regardless of whether such 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 otherwise unless Lender acquired title to the Propertyhas consented thereto.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Appears in 1 contract
Sources: Loan Agreement (Parking REIT, Inc.)
Ground Lease. (a) Ground Lessee Borrower shall (i) pay all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by Borrower, as tenant under and pursuant to the Lender such lien as would cause provisions of the fee simple title to Ground Lease, (ii) diligently perform and observe all of the Property to be sold free terms, covenants and clear conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed and observed, and (iii) promptly notify Lender of the giving of any written notice by the landlord under the Ground Lease to Borrower of any default by 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 five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under the Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Borrower’s receipt. Borrower shall not, without the prior consent of Lender, surrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend the Ground Lease, either orally or in writing. Borrower hereby assigns to 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 Security Instrument, 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 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. If Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of 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 Borrower to be performed or observed on behalf of Borrower, to the end that the rights of 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 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 exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at foreclosure sale. Ground Lessee any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby jointly expressly authorizes and severally waive appoints Lender its attorney-in-fact to exercise any rightsuch option in the name of and upon behalf of Borrower, arising at law 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 equitythe landlord’s interest in all or any part of the Property, whether presently existing or subsequently accruingunless, whether to Ground Lesseein each such case, Borrower, or anyone holding or claiming under or through them, to the written consent of Lender shall have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwisebeen first had and obtained.
(b) Except as specified Notwithstanding anything contained 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 Lease to the extent contrary, Borrower shall not further sublet any portion of Ground Lessee’s interest in the Property (other than pursuant to the Operating Lease or other property subject to any security interest securing the Note. Subject as permitted pursuant to Section 11.01, 4.1.9 hereof) without prior written consent of Lender. Each such sublease hereafter made shall provide that (i) any execution on such judgment in the event of the termination of the Ground Lease, the sublease shall not terminate or decree, with respect to be terminable by the assets of Ground Lessee, shall be limited to the Property or other property subject to any security interest securing the Note, and lessee thereunder; (ii) Ground Lessee in the event of any action for the foreclosure of the Security Instrument, the sublease shall not terminate or be personally liable for terminable by the payment lessee thereunder by reason of the indebtedness 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 other Obligations secured by 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 Instrumentsubsection, nor such sublease shall execution on any judgment or decree resulting from any action to enforce the Obligations be or be caused deemed to be a lien on any other asset of Ground Lessee other than included in the Property or other property subject to any security interest securing the NoteProperty.
(c) Ground Lessee and Borrower each agree hereby agrees that neither this Instrument nor any obligation of Ground Lessee and Borrower hereunder will be released, impaired or subordinated by any amendment it shall not consent 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 Ground Lease and the Property shall be subject to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless of whether such obligation or liability (i) is an obligation or liability of either ground lessee or sub-ground lessor under the Ground Lease, or (iiLease electing to treat the Ground Lease as terminated under Section 365(h) arises either before or after Lender acquired title of the Bankruptcy Code pursuant to the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all Section 11.06 of the Ground LesseeLease without obtaining Lender’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrumentprior written consent.
Appears in 1 contract
Ground Lease. Without limitation of the other provisions herein, Ground Lessee makes the following covenants with respect to the Ground Leases:
(ai) Ground Lessee shall (1) pay (or cause to be paid) all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by Ground Lessee, as tenant under and pursuant to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear provisions of the Ground Leases, (2) diligently perform and observe (or cause to be performed and observed) all of the terms, covenants and conditions of the Ground Leases on the part of Ground Lessee, as tenant thereunder, (3) promptly notify Administrative Agent of the giving of any notice by the Ground Lessor under the Ground Lease at foreclosure sale. to Ground Lessee of any event of default (whether or not any applicable notice and cure periods have expired) by Ground Lessee and Borrower hereby jointly deliver to Agent a true copy of each such notice within two (2) Business Days of receipt, and severally waive (4) promptly notify Administrative Agent of any rightbankruptcy, arising at law reorganization or in equityinsolvency of the Ground Lessor under the Ground Leases or of any notice thereof, whether presently existing or subsequently accruing, whether and deliver to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles Administrative Agent a true copy of marshalling or otherwise.
such notice within two (b2) 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 Business Days of Ground Lessee’s interest receipt, together with copies of all notices, pleadings, schedules and similar matters received by Ground Lessee in the Property connection with such bankruptcy, reorganization or other property subject to any security interest securing the Note. Subject to Section 11.01, insolvency within five (i5) any execution on such judgment or decree, with respect to the assets of Ground Lessee, shall be limited to the Property or other property subject to any security interest securing the Note, and days after receipt.
(ii) Ground Lessee shall not be personally liable for not, without the payment prior written consent of the indebtedness Required Lenders, surrender the leasehold estate created by the Ground Leases or other Obligations secured by this Instrumentsublet (unless on terms acceptable to the Administrative Agent), nor shall execution on any judgment terminate or decree resulting from any action to enforce cancel the Obligations be Ground Leases or be caused to be a lien on any other asset of modify, change, supplement, alter or amend the Ground Leases, and if Ground Lessee other than shall default in the Property performance or other property subject to observance of any security interest securing term, covenant or condition of the Note.
(c) Ground Lessee and Borrower each agree that neither this Instrument nor any obligation Leases on the part of Ground Lessee and Borrower hereunder will shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Administrative Agent shall have the right, but shall be releasedunder no obligation, impaired to pay any sums and to perform any act or subordinated by take any amendment action as may be appropriate to this Instrument cause all of the terms, covenants and conditions of the Ground Leases on the part of Ground Lessee to be performed or any other document or extension observed on behalf 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) to the end that the rights of Ground Lessee in, to and Ground Lessee’s interest in under the Ground Lease and the Property shall be subject to all of kept unimpaired and free from default. If the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising Ground Lessor under the Ground Lease, regardless Leases shall deliver to Administrative Agent a copy of whether such obligation or liability (i) is an obligation or liability any notice of either ground lessee or ground lessor default under the Ground LeaseLeases, such notice shall constitute full protection to Administrative Agent for any action taken or (ii) arises either before or after Lender acquired title omitted to the Property.
(f) be taken by Administrative Agent, in good faith, in reliance thereon. Ground Lessee and Borrower shall exercise each hereby acknowledge and agree that all individual option, if any, to extend or renew the term of the Ground Leases upon demand by Administrative Agent made at any time within sixty (60) days prior to the last day upon which any such option may be exercised, and Ground Lessee hereby expressly authorizes and appoints Administrative Agent its attorney-in-fact to exercise any such option in the name of and on behalf of Ground Lessee’s rights , which power of attorney shall be irrevocable and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject shall be deemed to and subordinate to this Instrumentbe coupled with an interest.
Appears in 1 contract
Sources: Financing Agreement (Wheeler Real Estate Investment Trust, Inc.)
Ground Lease. (a) Grantor hereby represents and warrants that it holds all right, title, and interest in, to, and under the Ground Lessee and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting Lease, both as to the Lender such lien lessor and lessee thereunder, and all representations, warranties, and agreements made hereunder are being made by Grantor in its capacity as would cause both lessor and lessee. Grantor hereby agrees that the fee simple title Ground Lease, together with all extensions, replacements, and modifications thereof, are and at all times shall be subject and subordinate to this Deed of Trust and all terms hereof and, to the Property to be sold free and clear extent that any provisions of the Ground Lease at foreclosure sale. Ground Lessee and Borrower hereby jointly and severally waive are in conflict with any right, arising at law provisions of this Deed of Trust or in equity, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise.any other Loan Documents,
(b) Except as specified Grantor shall at all times promptly and faithfully keep, observe and perform in Section 11.02all material respects, or cause to be kept, observed and 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 terms and conditions of the Ground Lease, and Grantor shall not do or permit any action commenced thing to enforce be done, the Obligations created doing of which, or arising under refrain from doing any thing, the omission of which, would impair or tend to impair the security of this InstrumentDeed of Trust, or would be grounds for a termination the Ground Lease or a declaration of a forfeiture of 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 Lessee, 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 NoteLease.
(c) Ground Lessee and Borrower each agree that neither this Instrument nor any obligation of Ground Lessee and Borrower hereunder will be releasedGrantor shall not modify, impaired change, supplement, alter 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 amend the Ground Lease in any respect, either orally or in writing, and Grantor shall not terminate, cancel, sever or surrender, or suffer the Property termination, cancellation, severance or surrender of, the Ground Lease or the ground leasehold estate, and shall be subject not in any way release or discharge any party to all of or under the provisions of Section 5.01.
(e) Under no circumstances shall Lender Ground Lease, or any of its successors or assigns have assigns, of or from any obligation obligations, covenants, conditions and agreements by said party to be kept, observed or liability 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 kind of Grantor's obligations under the Ground Lease pursuant to the terms thereof, or nature based 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 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 and all notices, communications, plans, specifications or arising 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 by the 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, regardless the amount of whether any damages caused by the nonperformance by the lessor thereunder, or its successors and assigns, of such obligation party's obligations under the Ground Lease after rejection or liability 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
(ij) is an obligation Grantor shall, promptly after obtaining knowledge thereof, give written notice to Beneficiary of any actual or liability of either ground lessee contemplated filing by or ground against the lessor under the Ground Lease, or (ii) arises either before 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 Lender acquired title receipt thereof, deliver to the PropertyBeneficiary any and all notices, summonses, pleadings, applications and other documents received by Grantor in connection with any such petition and any proceedings relating thereto.
(fk) Ground Lessee and Borrower each hereby acknowledge and agree In the event that all any action, proceeding, motion or notice shall be commenced or filed in respect of the Ground Lessee’s rights and remedies either party under the Ground Lease, including without limitation any rights of first refusal or its successors and assigns, or the leased premises, or the Security or any purchase rightspart thereof, are 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 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 reject or disaffirm the Ground Lease pursuant to the Bankruptcy Code, Grantor shall give Beneficiary at least ten (10) business days prior written notice of 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 not the obligation, to 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 assign the Ground Lease to Beneficiary pursuant to Section 365 of the Bankruptcy Code, and (ii) Beneficiary covenants to cure, or provide adequate assurance of prompt cure of, all defaults and provide adequate assurance of 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 have been given, subject to 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 subordinate 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 to this Instrumentassume, reject or disaffirm the Ground Lease pursuant to the 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 the Ground Lease may be rejected, disaffirmed or assumed after the entry of any order for relief in respect of Grantor under Chapter 7 of the Bankruptcy Code.
Appears in 1 contract
Sources: Deed of Trust and Security Agreement (Cornerstone Properties Inc)
Ground Lease. (a) Ground Lessee The Co-Borrower shall pay or cause to be paid all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in other sums required to be paid by the Property for the purpose of granting Co-Borrower, as tenant under and pursuant to the Lender provisions of each Ground Lease on or before the date on which such lien as would cause rent or other charge is payable. Upon request of the fee simple title Administrative Agent, the Co-Borrower shall deliver to the Property Administrative Agent evidence reasonably satisfactory to be sold free the Administrative Agent that all such rents and clear of the other sums payable, pursuant to each Ground Lease at foreclosure sale. Ground Lessee Lease, which are then due and Borrower hereby jointly and severally waive any rightpayable, arising at law or in equity, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwisebeen paid.
(b) Except The Co-Borrower shall diligently perform and observe all of the terms, covenants and conditions of each Ground Lease on the part of the Co-Borrower, as specified in Section 11.02tenant thereunder, 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 performed and observed prior to the extent 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 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 Lessee, 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 NoteLease.
(c) The Co-Borrower shall promptly notify the Administrative Agent of the giving of any notice by the lessor under any Ground Lessee and Lease to the Co-Borrower each agree that neither this Instrument nor of any obligation of Ground Lessee and Borrower hereunder will be released, impaired or subordinated default by any amendment to this Instrument or any other document or extension of time or waiver of right or remedy as to Ground Lessee, the Co-Borrower, or any other partyas lessee thereunder, or any other act or thing which, but for this provision, would so release, impair, or subordinateand promptly deliver to the Administrative Agent a true copy of each such notice.
(d) Ground Lessee and Ground Lessee’s interest in the The Co-Borrower shall enforce each covenant or obligation of each Ground Lease and the Property shall be subject to all of the provisions of Section 5.01in accordance with its terms.
(e) Under no circumstances Upon the request of the Administrative Agent, the Co-Borrower shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under cooperate with the Ground LeaseAdministrative Agent and the Lenders and, regardless of whether such 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 the Propertyextent 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 Lessee and Borrower Lessor under each hereby acknowledge and agree that all 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 LesseeLease and the Co-Borrower’s rights 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 remedies provisions under such Ground Lease and immediately upon learning of a rejection or disaffirmance or purported rejection or disaffirmance of any such Ground Lease pursuant to any state or federal bankruptcy law, shall notify the Administrative Agent thereof. Promptly after execution of any amendment to the Deed of Trust covering any Project subject to a Ground Lease, the Co-Borrower shall notify the applicable lessor in a form satisfactory to the Administrative Agent of the execution and delivery of the Deed of Trust or such amendment. The Administrative Agent shall have the right, but not the obligation, to give any 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 of the institution 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, 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 limitation limiting any rights provision in the applicable Deed of first refusal Trust, upon the acquisition by the Co-Borrower or any purchase rights, are Affiliate of the Underlying Fee Estate in the portion of such Project that is subject to a Ground Lease there shall be no merger of the 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 subordinate 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 this Instrumentthe Borrower, subject in each case to the Liens and security interests created by the Loan Documents.
(m) Co-Borrower shall be permitted to transfer the Co-Borrower Projects (either with or without the Projects owned by the Borrower) on the same terms and conditions as set forth in Section 9.03(a)(iii) of the Loan Agreement; provided, however, that no such transfer
(xix) Insert a new Section 9.03(a)(ix) as follows: “(ix) Transfers by HBRCT LLC, a Hawaii limited liability company, or any successor in interest thereto, of its direct or indirect ownership or other Equity Interests in the Co-Borrower.”;
(xx) 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 paragraph of Section 9.03 shall be restated as follows: “(except for the Permitted Public REIT Transfer, any Transfer of publicly-traded stocks in the Permitted Public REIT, 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) Ground Lessee and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear of If any Tenant Work triggers any insurance requirement under the Ground Lease at foreclosure sale(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. Ground Lessee and Borrower hereby jointly and severally waive any rightTHIS ACKNOWLEDGEMENT OF TERM COMMENCEMENT DATE AND TERM EXPIRATION DATE is entered into as of [______], arising at law or 20[___], with reference to that certain Lease (the “Lease”) dated as of [_____], 2021, by TURNSTONE BIOLOGICS CORP., a Delaware corporation (“Tenant”), in equityfavor of BMR-ATHENA LP, whether presently existing or subsequently accruinga Delaware limited partnership (“Landlord”). All capitalized terms used herein without definition shall have the meanings ascribed to them in the Lease. ▇▇▇▇▇▇ ▇▇▇▇▇▇ confirms the following, whether to Ground Lesseeas of the date hereof:
1. Tenant accepted possession of the Premises for use in accordance with the Permitted Use on [_____], Borrower20[__]. Tenant first occupied the Premises for the Permitted Use on [______], or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise20[__].
(b) Except 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 performed by Landlord 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 a condition to the extent full effectiveness of Ground Lessee’s interest the Lease have been satisfied, and Landlord has fulfilled all of its duties in the Property or other property subject nature of inducements offered to any security interest securing Tenant to lease the Note. Subject to Section 11.01, (i) any execution on such judgment or decree, with respect to the assets of Ground Lessee, 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 NotePremises.
(c) Ground Lessee and Borrower 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 Ground Lease and the Property shall be subject to all of 5. In accordance with the provisions of Section 5.01Article 4 of the Lease, the Term Commencement Date is [_____], 20[__], and, unless the Lease is terminated prior to the Term Expiration Date pursuant to its terms, the Term Expiration Date shall be [______], 20[__].
(e) Under 6. The Lease is in full force and effect, and the same represents the entire agreement between Landlord and Tenant concerning the Premises[, except [______]].
7. Tenant has no circumstances shall Lender existing defenses against the enforcement of the Lease by Landlord, and there exist no offsets or credits against Rent owed or to be 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 of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless of whether such 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 the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.portion thereof. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
Appears in 1 contract
Ground Lease. (a) Ground Lessee Borrower shall (i) pay all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by Borrower, as tenant under and pursuant to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear provisions of the Ground Lease at foreclosure saleas 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 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 receipt by Borrower of any notice by the Ground Lessor to Borrower of any default by 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. Borrower shall not, without the prior consent of Lender, surrender the leasehold estate created by the Ground Lessee Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend the Ground Lease, in any respect, either orally or in writing, and Borrower hereby jointly assigns to Lender, as further security for the payment and severally waive any rightperformance of all Secured Indebtedness, arising at law or in equityall of the rights, whether presently existing or subsequently accruing, whether to Ground Lessee, privileges and prerogatives of Borrower, or anyone holding or claiming as tenant under or through themthe Ground Lease, to have their separate estates sold separately upon foreclosuresurrender the leasehold estate created by the Ground Lease or to terminate, whether under principles cancel, modify, change, supplement, alter or amend the Ground Lease, and any such surrender of marshalling such leasehold estate or otherwisetermination, 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) Except as specified If Borrower shall default (irrespective of whether any applicable notice and cure periods in Section 11.02, in any action commenced to enforce the Obligations created or arising favor of Borrower 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 Lessee, 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 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 Ground Lease have not expired) in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of this Security Instrument, and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall have the Property right upon notice to Borrower, but shall be subject 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 provisions terms, covenants and conditions of Section 5.01.
(e) Under no circumstances such Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Borrower, to the end that the rights of 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 its successors or assigns have any obligation or liability the making of any kind such payment, the performance of any such act, or nature based 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 or arising 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 Ground Lessor shall deliver to Lender a copy of any notice of default sent by said Ground Lessor to Borrower, as tenant under the Ground Lease, regardless 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 will not subordinate or consent to the subordination of whether the Ground Lease 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 obligation or liability 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, (ia) is an obligation or liability in the event of either ground lessee or ground lessor under the termination of the Ground Lease, the Lease shall not terminate or be terminated by the tenant; and (iib) arises either before in the event of any action for the foreclosure of the Security Instrument, the Lease shall not terminate or after Lender acquired title to be terminable by the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all subtenant by reason of the termination of the Ground Lessee’s rights Lease unless the tenant is specifically named and remedies under joined in any such action and unless a judgment is obtained therein against the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrumenttenant.
Appears in 1 contract
Sources: Leasehold Deed of Trust, Security Agreement and Fixture Filing (Taubman Centers Inc)
Ground Lease. Borrower shall (a) Ground Lessee pay all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by Borrower, as tenant under and pursuant to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear provisions of the Ground Lease as and when such rent or other charge is payable, (b) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed and observed at foreclosure saleleast thirty (30) days prior to the expiration of any applicable grace period therein provided, and (c) promptly notify Lender of the giving of any notice by the Ground Lessor to Borrower of any default by 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. Borrower shall not, without the prior consent of Lender, surrender the leasehold estate created by the Ground Lessee Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend the Ground Lease, in any material respect, either orally or in writing, and Borrower hereby jointly and severally waive any rightassigns to Lender, arising at law or in equity, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise.
(b) 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 further 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 Lessee, 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 Debt and for the performance and observance of the terms, covenants and conditions of this InstrumentMortgage, 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 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 Ground Lease Second Mortgage and the Property shall be subject to Loan Agreement, all of the provisions rights, privileges and prerogatives of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising Borrower, as tenant under the Ground Lease, regardless 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 whether 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, 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 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 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, 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 Borrower, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default (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 obligation payment, the performance of any such act, or liability (i) is an obligation or liability the taking of either ground lessee or ground lessor 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 Ground Lessor shall deliver to Lender a copy of any 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 (ii) arises either before omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall exercise each individual option, if any, to extend or after Lender acquired title to renew the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all term of the Ground Lessee’s rights Lease upon demand by Lender made at any time within one (1) year of the last day upon which any such option may be exercised, and, if Borrower fails to exercise such option, Borrower hereby expressly authorizes and remedies under 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, including without limitation the Lease shall not terminate or be terminated by the tenant; (ii) in the event of any rights action for the foreclosure of first refusal 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 purchase rightssuch action and unless a judgment is obtained therein against the tenant; and (iii) in the event that the Ground Lease is terminated as aforesaid, are subject the tenant shall attorn to and subordinate the Ground Lessor or to this Instrumentthe purchaser at the sale of the Property on such foreclosure, as the case may be.
Appears in 1 contract
Ground Lease. (a) Grantor hereby represents and warrants, as of the Effective Date, (i) Grantor has delivered a true and correct copy of each Ground Lessee Lease to Grantee prior to or simultaneously with its execution of this Security Instrument; (ii) the Ground Lease is in full force and Borrower 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 executed this Instrument mortgaging their separate estates 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 Property 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 granting 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 Grantee to have the rights of a leasehold mortgagee or mortgagee pursuant to the Lender such lien as would cause Ground Lease have been taken and completed; (ix) the fee simple title to 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 Property 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 sold free 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 clear 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 at foreclosure sale. for any reason, including rejection of the Ground Lessee 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 Borrower hereby jointly (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 severally waive the applicable Note Documents, taken together, any right, arising at law or Net Loss Proceeds will be applied in equity, whether presently existing or subsequently accruing, whether to accordance with the terms of the Indenture; and [(xvi) the Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwiseLease does not impose restrictions on subletting.]
(b) Except Grantor hereby covenants and agrees that, so long as specified in Section 11.02the Secured Obligations remain outstanding, in any action commenced to enforce the Obligations created or arising under this Instrument, any resulting judgment or decree it shall be enforceable against Ground Lessee only (i) except to the extent of Ground Lessee’s interest in the Property or nonpayment would not have a Material Adverse Effect, pay all rents, additional rents and other property subject sums required to any security interest securing the Note. Subject to Section 11.01be paid by Grantor, (i) any execution on such judgment or decree, with respect as tenant under and pursuant to the assets provisions of the Ground LesseeLease, 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 diligently perform and observe in all material respects all of the indebtedness or other Obligations secured by this Instrumentterms, nor shall execution on any judgment or decree resulting from any action to enforce covenants and conditions of the Obligations be or be caused Ground Lease to be performed and observed on the part of such Grantor, as tenant thereunder, (iii) reasonably promptly notify Grantee of the giving of any notice by Fee Owner to Grantor of any material default by Grantor, as tenant thereunder, and deliver to Grantee a lien on true copy of each such notice within five (5) days of Grantor's receipt and (iv) reasonably promptly notify Grantee of any other asset notice of Ground Lessee other than the Property bankruptcy, reorganization or other property subject insolvency of Fee Owner, and deliver to any security interest securing the NoteGrantee a true copy of such notice.
(c) In the event of any uncured default by the Grantor in the performance of any of its obligations under the Ground Lessee Lease, including, without limitation, any uncured default in the payment of rent and Borrower each agree that neither this Instrument nor other charges and impositions made payable by the lessee thereunder, then, in the case of an uncured default in the payment of any obligation of Ground Lessee and Borrower hereunder will be releasedmonetary obligation, 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[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 this provisionall advances made and reasonable expenses incurred by Grantee in curing any such default (including, would so releasewithout limitation, impairreasonable attorneys' fees), together with interest thereon computed at the Default Rate (as hereinafter defined) from the date that an advance is made or subordinateexpense is incurred, to and including the date the same is paid.
(d) Ground Lessee and Ground Lessee’s interest in Notwithstanding anything to the contrary contained herein with respect to the Ground Lease and Lease:
(i) the Property shall be subject Lien of this Security Instrument attaches to all of the provisions Grantor's rights and remedies at any time arising under or pursuant to subsection 365(h) of Section 5.01.the Bankruptcy Code, including, without limitation, all of the Grantor's rights, as debtor, to remain in possession of the related Property which is subject to the Ground Lease;
(eii) Under no circumstances The Grantor shall Lender not, 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 any in the name of its successors or assigns have any obligation or liability Grantor in respect of any kind claim, suit, action or nature based upon or arising under proceeding relating to the rejection of the Ground Lease, regardless including, without limitation, the right to file and prosecute any proofs of whether such obligation or liability (i) is an obligation or liability claim, complaints, motions, applications, notices and other documents in any case in respect of either ground lessee or ground lessor Fee Owner under the Ground LeaseBankruptcy Code. This assignment constitutes a present, or (ii) arises either before or after Lender acquired title to irrevocable and unconditional assignment of the Property.
(f) Ground Lessee foregoing claims, rights and Borrower each hereby acknowledge remedies, and agree that 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 Lessee’s 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 and 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 Ground LeaseBankruptcy 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 without limitation any rights of first refusal attorneys' fees and costs) actually paid or actually incurred by Grantee or any purchase rightsSecured 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, are subject 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 subordinate the relief sought in such filing. Grantor shall promptly deliver to this InstrumentGrantee 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.
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Sources: Deed of Trust (FelCor Lodging LP)
Ground Lease. Borrower shall (ai) Ground Lessee pay all rents, additional rents and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting other sums required to be paid by Borrower, as tenant under and pursuant to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear provisions of the Ground Lease at foreclosure saleprior to delinquency, (ii) perform and observe all of the material terms, covenants and conditions of the Ground Lease on the part of 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 notice by the Ground Lessor, as landlord under the Ground Lease to Borrower of any default by 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. Borrower shall not, without the prior consent of Lender (which shall not be unreasonably withheld, conditioned or delayed), surrender the leasehold estate created by the Ground Lessee Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend any material provisions of the Ground Lease, in any material respect, either orally or in writing, and Borrower hereby jointly and severally waive any rightcollaterally assigns to Lender, arising at law or in equity, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise.
(b) 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 further 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 Lessee, 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 Debt and for the performance and observance of the terms, covenants and conditions of this InstrumentDeed, 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 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 Ground Lease and the Property shall be subject to all of the provisions rights, privileges and prerogatives of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising Borrower, as tenant under the Ground Lease, regardless to surrender the leasehold estate created by the Ground Lease or to terminate, cancel, or materially modify, change, supplement, alter or amend any material provisions of whether the Ground Lease, and any such obligation surrender of the leasehold estate created by the Ground Lease or liability termination, cancellation, or material 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 material term, covenant or condition of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed, which continues uncured after the expiration of all applicable notice and cure periods, then, without limiting the generality of the other provisions of this Deed, 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 material terms, covenants and conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed, to the end that the rights of Borrower in, to and under the Ground Lease shall be kept unimpaired and free from forfeiture. 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, during the continuance of any Event of Default, 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 and to 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 promptly following demand (i) is which demand shall, except in the event that an obligation or liability Event of either ground lessee or ground lessor Default then exists hereunder, include documentation describing Lender’s expenditures in reasonable detail), all such sums so paid and expended by Lender, together with interest thereon from the day of such demand at the Default Rate (as defined in the Note). All sums so paid and expended by Lender and the interest thereon shall be secured by the legal operation and effect of this Deed. If the Ground Lessor, as landlord under the Ground Lease shall deliver to Lender a copy of any notice of default sent by the 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 after consultation with Borrower. Borrower shall 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 (ii1) arises either before year 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 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 after consent to the subordination of the Ground Lease to any Deed, 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 acquired shall have been first had and obtained. So long as any portion of the Debt shall remain unpaid, unless Lender shall otherwise consent, the fee title to the Property.
(f) Ground Lessee Land and Borrower each hereby acknowledge and agree that all the leasehold estate therein created pursuant to the provisions of the Ground Lessee’s rights Lease shall not merge but shall always be kept separate and remedies under distinct, notwithstanding the union of such estates in Borrower, Lender, or in any other person by purchase, operation of law or otherwise. Lender 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, including with or without limitation consideration, at Lender’s election, without waiving or affecting any of its rights hereunder or under the Note or the other Loan Documents and any such release shall not affect Lender’s rights in connection with the portion of first refusal or any purchase rights, are subject to and subordinate to this Instrumentthe Property not so released.
Appears in 1 contract
Ground Lease. (a) Mortgagor hereby represents and warrants, as of the Effective Date, (i) Mortgagor has delivered a true and correct copy of each Ground Lessee Lease to Mortgagee prior to or simultaneously with its execution of this Security Instrument; (ii) the Ground Lease is in full force and Borrower 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 executed this Instrument mortgaging their separate estates 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 Property express terms of the Ground Lease, (vi) to the best of Mortgagor's knowledge, no Person has commenced any action or given or received any notice for the purpose of granting 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 Lender such lien as would cause Ground Lease have been taken and completed, (ix) the fee simple title to 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 Property 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 sold free 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 clear 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 at foreclosure sale. for any reason, including rejection of the Ground Lessee 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 Borrower hereby jointly (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 severally waive the applicable Note Documents, taken together, any right, arising at law or Net Loss Proceeds will be applied in equity, whether presently existing or subsequently accruing, whether to accordance with the terms of the Indenture; and [(xvi) the Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwiseLease does not impose restrictions on subletting.]
(b) Except Mortgagor hereby covenants and agrees that, so long as specified in Section 11.02the Secured Obligations remain outstanding, in any action commenced to enforce the Obligations created or arising under this Instrument, any resulting judgment or decree it shall be enforceable against Ground Lessee only (i) except to the extent of Ground Lessee’s interest in the Property or nonpayment would not have a Material Adverse Effect, pay all rents, additional rents and other property subject sums required to any security interest securing the Note. Subject to Section 11.01be paid by M▇▇▇▇▇▇▇▇, (i) any execution on such judgment or decree, with respect as tenant under and pursuant to the assets provisions of the Ground LesseeLease, 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 diligently perform and observe in all material respects all of the indebtedness or other Obligations secured by this Instrumentterms, nor shall execution on any judgment or decree resulting from any action to enforce covenants and conditions of the Obligations be or be caused Ground Lease to be performed and observed on the part of such Mortgagor, as tenant thereunder, (iii) reasonably promptly notify Mortgagee of the giving of any notice by Fee Owner to Mortgagor of any material default by M▇▇▇▇▇▇▇▇, as tenant thereunder, and deliver to Mortgagee a lien on true copy of each such notice within five (5) days of Mortgagor's receipt and (iv) reasonably promptly notify Mortgagee of any other asset notice of Ground Lessee other than the Property bankruptcy, reorganization or other property subject insolvency of Fee Owner, and deliver to any security interest securing the NoteMortgagee a true copy of such notice.
(c) In the event of any uncured default by the Mortgagor in the performance of any of its obligations under the Ground Lessee Lease, including, without limitation, any uncured default in the payment of rent and Borrower each agree that neither this Instrument nor other charges and impositions made payable by the lessee thereunder, then, in the case of an uncured default in the payment of any obligation of Ground Lessee and Borrower hereunder will be releasedmonetary obligation, 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[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 this provisionall advances made and reasonable expenses incurred by Mortgagee in curing any such default (including, would so releasewithout limitation, impairreasonable attorneys' fees), together with interest thereon computed at the Default Rate (as hereinafter defined) from the date that an advance is made or subordinateexpense is incurred, to and including the date the same is paid.
(d) Ground Lessee and Ground Lessee’s interest in Notwithstanding anything to the contrary contained herein with respect to the Ground Lease and Lease:
(i) the Property shall be subject Lien of this Security Instrument attaches to all of the provisions Mortgagor's rights and remedies at any time arising under or pursuant to subsection 365(h) of Section 5.01.the Bankruptcy Code, including, without limitation, all of the Mortgagor's rights, as debtor, to remain in possession of the related Property which is subject to the Ground Lease;
(eii) Under no circumstances The Mortgagor shall Lender not, without Mortgagee'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 Mortgagee's prior written consent shall be void;
(iii) As security for the Secured Obligations, Mortgagor unconditionally assigns, transfers and sets over to 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 any in the name of its successors or assigns have any obligation or liability Mortgagor in respect of any kind claim, suit, action or nature based upon or arising under proceeding relating to the rejection of the Ground Lease, regardless including, without limitation, the right to file and prosecute any proofs of whether such obligation or liability (i) is an obligation or liability claim, complaints, motions, applications, notices and other documents in any case in respect of either ground lessee or ground lessor Fee Owner under the Ground LeaseBankruptcy Code. This assignment constitutes a present, or (ii) arises either before or after Lender acquired title to irrevocable and unconditional assignment of the Property.
(f) Ground Lessee foregoing claims, rights and Borrower each hereby acknowledge remedies, and agree that 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 Lessee’s 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 and 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 Ground LeaseBankruptcy 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 without limitation any rights of first refusal attorneys' fees and costs) actually paid or actually incurred by Mortgagee or any purchase rightsSecured 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, are subject 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 subordinate the relief sought in such filing. Mortgagor shall promptly deliver to this InstrumentMortgagee 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