Ground Lease. (a) Borrower shall (or shall cause Mortgage Borrower to), at its sole cost and expense, promptly and timely perform and observe all the material terms, covenants and conditions required to be performed and observed by Mortgage Borrower as lessee under the Ground Lease (including, but not limited to, the payment of all rent, additional rent, percentage rent and other charges required to be paid under the Ground Lease). (b) If Mortgage Borrower shall be in default beyond all applicable notice and cure periods under the Ground Lease, then, subject to the terms of the Ground Lease, and the rights of Mortgage Lender under the Mortgage Loan Documents, Borrower (on behalf of itself and Mortgage Borrower) shall grant Lender the right (but not the obligation), to cause such default under the Ground Lease to be remedied and otherwise exercise any and all rights of Mortgage 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 under the Loan Documents, and Lender shall have the right to enter all or any portion of the Property at such times and in such manner as Lender deems reasonably necessary, to prevent or to cure any such default, subject to the terms of the Ground Lease. (c) The actions or payments of Lender to cure any default by Mortgage Borrower under the Ground Lease shall not remove or waive, as between Borrower and Lender, the default that occurred under this Agreement by virtue of the default by Mortgage Borrower under the Ground Lease. All sums expended by Lender to cure any such default shall be paid by Borrower or Mortgage Borrower to Lender, upon demand, with interest on such sum at the then applicable Interest Rate from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the Pledge Agreement. (d) Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) notify Lender in writing of the occurrence of any material default by Ground Lessor of which Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor or Operating Lessee has knowledge promptly after such Person becomes aware of the same, and the receipt by Mortgage Borrower of any notice from Ground Lessor under the Ground Lease claiming the occurrence of any default by Mortgage Borrower under the Ground Lease. Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) promptly deliver to Lender a copy of any such written notice of default. (e) Within ten (10) days after receipt of written demand by Lender, Borrower shall cause Mortgage Borrower to use reasonable efforts to obtain from Ground Lessor and furnish to Lender the estoppel certificate of Ground Lessor stating (i) that the Ground Lease is unmodified and in full force and effect, (ii) the date through which rent has been paid, (iii) whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any, (iv) whether any fee mortgages are in effect, (v) whether a right of first offer is in effect, (vi) the current adjusted amounts for dollar amounts in the Ground Lease and (vii) the amount of any security deposits. (f) Subject to the terms and conditions of the Mortgage Loan Documents, Borrower shall cause Mortgage Borrower to promptly execute, acknowledge and deliver to Lender such instruments as may be reasonably 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 Collateral. Subject to the terms and conditions of the Mortgage Loan Documents, Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, after the occurrence of an Event of Default for which Lender has accelerated the Loan, any and all acts and to execute any and all documents that are necessary to preserve any rights of Mortgage 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 Mortgage 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 Pledge Agreement attaches to all of Mortgage Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including, without limitation, all of Mortgage Borrower’s rights, as debtor, to remain in possession of the Property. (ii) Borrower shall not cause or permit Mortgage Borrower to, 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.
Appears in 1 contract
Ground Lease. (a) El Con Borrower shall (or shall cause Mortgage Borrower to)shall, at its sole cost and expense, promptly and timely perform and observe all the material terms, covenants and conditions required to be performed and observed by Mortgage El Con Borrower as lessee under the Ground Lease (including, but not limited to, the payment of all rent, additional rent, percentage rent and other charges required to be paid under the Ground Lease).
(b) If Mortgage El Con Borrower shall be in default beyond all applicable notice and cure periods in any material respect under the Ground Lease, then, subject to the terms of the Ground Lease, and the rights of Mortgage Lender under the Mortgage Loan Documents, El Con Borrower (on behalf of itself and Mortgage Borrower) shall grant Lender the right (but not the obligation), to cause such default or defaults under the Ground Lease to be remedied and otherwise exercise any and all rights of Mortgage El Con Borrower under the Ground Lease, as may be necessary to prevent or cure any such default provided such actions are necessary to protect Lender’s interest under the Loan Documents, and Lender shall have the right to enter all or any portion of the applicable Individual Property at such times and in such manner as Lender deems reasonably necessary, to prevent or to cure any such default, subject to the terms of the Ground Lease.
(c) The actions or payments of Lender to cure any default by Mortgage El Con Borrower under the Ground Lease shall not remove or waive, as between El Con Borrower and Lender, the default that occurred under this Agreement by virtue of the default by Mortgage El Con Borrower under the Ground Lease. However, it will not be a default by El Con Borrower if there are sufficient funds in the Ground Lease Reserve to pay rent under the Ground Lease and such funds are not promptly paid to the lessor under the Ground Lease. All sums expended by Lender to cure any such default shall be paid by Borrower or Mortgage El Con Borrower to Lender, upon demand, with interest on such sum at the then applicable Interest Rate rate set forth in this Agreement from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the Pledge Agreementrelated Mortgage.
(d) El Con Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) notify Lender promptly in writing after obtaining knowledge thereof of the occurrence of any material default by the lessor under the Ground Lessor Lease or the occurrence of which Borrowerany event that, Equity Ownerwith the passage of time or service of notice, Mortgage Borroweror both, Operating Lessee Pledgor or Operating Lessee has knowledge promptly after such Person becomes aware of would constitute a material default by the samelessor under the Ground Lease, and the receipt by Mortgage El Con Borrower of any notice (written or otherwise) from Ground Lessor the lessor under the Ground Lease noting or claiming the occurrence of any default by Mortgage El Con 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 El Con Borrower under the Ground Lease. El Con Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) promptly deliver to Lender a copy of any such written notice of default.
(e) Within ten (10) days after receipt of written demand by Lender, but not more than once in any calendar year, El Con Borrower shall cause Mortgage Borrower to use reasonable efforts to obtain from the lessor under the Ground Lessor Lease and furnish to Lender the estoppel certificate of Ground Lessor such lessor stating (i) that the Ground Lease is unmodified and in full force and effect, (ii) the date through which rent has been paid, (iii) paid and whether or not to the knowledge of such lessor there are any defaults thereunder and specifying the nature of such claimed defaults, if any, (iv) whether any fee mortgages are in effect, (v) whether a right of first offer is in effect, (vi) the current adjusted amounts for dollar amounts in the Ground Lease and (vii) the amount of any security deposits.
(f) Subject to the terms and conditions of the Mortgage Loan Documents, El Con Borrower shall cause Mortgage Borrower to promptly execute, acknowledge and deliver to Lender such instruments as may reasonably be reasonably required to permit Lender Lender, subject to the terms of the Ground Lease, 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 Collateralleasehold estate under the Ground Lease. Subject to Upon the terms occurrence and conditions during the continuance of the Mortgage Loan Documentsan Event of Default, El Con Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, after the occurrence of an Event of Default for which Lender has accelerated the Loan, any and all acts and to execute any and all documents that are necessary to preserve any rights of Mortgage El Con 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 Mortgage El Con 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 irrevocableirrevocable until the Loan is paid in full).
(g) Notwithstanding anything to the contrary contained in this Agreement with respect to the Ground Lease:
(i) The Lien lien of the Pledge Agreement related Mortgage attaches to all of Mortgage El Con Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including, without limitation, all of Mortgage El Con Borrower’s rights, as debtor, to remain in possession of the applicable Individual Property.
(ii) El Con Borrower shall not cause or permit Mortgage Borrower tonot, 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, El Con Borrower unconditionally assigns, transfers and sets over to Lender all of El Con 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 El Con Borrower shall proceed jointly or in the name of El Con 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 El Con Borrower as damages arising out of the rejection of the Ground Lease as aforesaid shall be made available to El Con Borrower for the replacement of the amenities lost as a result of such rejection, subject to reasonable terms and conditions, with any excess applied to the Debt in accordance with the applicable provisions of this Agreement.
(iv) If, pursuant to subsection 365(h) of the Bankruptcy Code, El Con Borrower seeks to offset, against the rent reserved in the Ground Lease, the amount of any damages caused by the nonperformance by the lessor of any of its obligations thereunder after the rejection by lessor of the Ground Lease under the Bankruptcy Code, then El Con Borrower shall not effect any offset of the amounts so objected to by Lender. If Lender has failed to object as aforesaid within ten (10) days after notice from El Con Borrower in accordance with the first sentence of this subsection, El Con Borrower may proceed to offset the amounts set forth in El Con Borrower’s notice.
(v) If any action, proceeding, motion or notice shall be commenced or filed in respect of any lessor of all or any part of the applicable Individual Property subject to the Ground Lease in connection with any case under the Bankruptcy Code, Lender and El Con Borrower shall cooperatively conduct and control any such litigation with counsel agreed upon between El Con Borrower and Lender in connection with such litigation. El Con Borrower shall, upon demand, pay to Lender all out-of-pocket costs and expenses (including reasonable attorneys’ fees and costs) actually paid or actually incurred by Lender in connection with the cooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be secured by the lien of the related Mortgage.
(vi) El Con 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. El Con Borrower shall thereafter promptly give written notice of such filing to Lender, setting forth any information available to El Con Borrower as to the date of such filing, the court in which such petition was filed, and the relief sought in such filing. El Con Borrower shall promptly deliver to Lender any and all notices, summonses, pleadings, applications and other documents received by El Con Borrower in connection with any such petition and any proceedings relating to such petition.
Appears in 1 contract
Ground Lease. (a) Borrower The Trustor shall (or shall cause Mortgage Borrower to)i) pay when due all rents, at its sole cost additional rents and expenseother sums required to be paid by the Trustor as tenant under the Ground Lease, promptly and timely (ii) diligently perform and observe all of the material terms, covenants and conditions required other terms of the Ground Lease to be performed and observed by Mortgage Borrower as lessee the tenant thereunder, (x) for monetary obligations, at least one (1) business day prior to, and (y) 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 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 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 (includingfinancial or otherwise) of the Trustor and its Subsidiaries, but taken as a whole. Notwithstanding the foregoing, during the continuation of an Event of Default, the Trustor shall not limited toterminate, 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 Obligations, all rentof the Trustor’s rights and privileges, additional rent, percentage rent and other charges required to be paid under the Ground Lease).
(b) If Mortgage Borrower shall be in default beyond all applicable notice and cure periods as tenant under the Ground Lease, during the continuation of 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 to terminate, cancel, modify or supplement the Ground Lease. If (i) the Trustor has received written notice of a default from Ground Lessor due to the Trustor’s failure to perform or observe any term of the Ground Lease to be performed or observed by it thereunder, or (ii) in the event the Trustor is not entitled to receive a notice of default from Ground Lessor, the Trustor’s failure to perform or observe any term of the Ground Lease to be performed or observed by it thereunder, then, subject 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 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, and the rights Trustor will not subordinate or consent to the subordination of Mortgage Lender under the Mortgage Loan Documents, Borrower (on behalf of itself and Mortgage Borrower) shall grant Lender the right (but not the obligation), to cause such default under the Ground Lease to be remedied and otherwise exercise any and all rights Deed of Mortgage Borrower under the Ground LeaseTrust, as may be necessary to prevent security deed, lease or cure any default provided such actions are necessary to protect Lender’s interest under the Loan Documents, and Lender shall have the right to enter all or any portion of the Property at such times and in such manner as Lender deems reasonably necessary, to prevent or to cure any such default, subject to the terms of the Ground Lease.
(c) The actions or payments of Lender to cure any default by Mortgage Borrower under the Ground Lease shall not remove or waive, as between Borrower and Lender, the default that occurred under this Agreement by virtue of the default by Mortgage Borrower under the Ground Lease. All sums expended by Lender to cure any such default shall be paid by Borrower or Mortgage Borrower to Lender, upon demand, with other interest on such sum at the then applicable Interest Rate from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the Pledge Agreement.
(d) Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) notify Lender in writing of the occurrence of any material default by Ground Lessor of which Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor or Operating Lessee has knowledge promptly after such Person becomes aware of the same, and the receipt by Mortgage Borrower of any notice from Ground Lessor under the Ground Lease claiming the occurrence of any default by Mortgage Borrower under the Ground Lease. Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) promptly deliver to Lender a copy of any such written notice of default.
(e) Within ten (10) days after receipt of written demand by Lender, Borrower shall cause Mortgage Borrower to use reasonable efforts to obtain from Ground Lessor and furnish to Lender the estoppel certificate of Ground Lessor stating (i) that the Ground Lease is unmodified and in full force and effect, (ii) the date through which rent has been paid, (iii) whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any, (iv) whether any fee mortgages are in effect, (v) whether a right of first offer is in effect, (vi) the current adjusted amounts for dollar amounts in the Ground Lease and (vii) Lessor’s interest in the amount of any security deposits.
(f) Subject to Trust Estate, unless in each such case, the terms and conditions written consent of the Mortgage Loan DocumentsBeneficiary has first been obtained, Borrower shall cause Mortgage Borrower it being agreed that the Beneficiary is under no obligation to promptly execute, acknowledge and deliver to Lender grant such instruments as may be reasonably 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 Collateral. Subject to the terms and conditions of the Mortgage Loan Documents, Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, after the occurrence of an Event of Default for which Lender has accelerated the Loan, any and all acts and to execute any and all documents that are necessary to preserve any rights of Mortgage 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 Mortgage 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)consent.
(g) Notwithstanding anything to the contrary contained in this Agreement with respect to the Ground Lease:
(i) The Lien of the Pledge Agreement attaches to all of Mortgage Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including, without limitation, all of Mortgage Borrower’s rights, as debtor, to remain in possession of the Property.
(ii) Borrower shall not cause or permit Mortgage Borrower to, 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.
Appears in 1 contract
Ground Lease. (a) Borrower Tower Company covenants that it shall (not commit any act which would result in a default, non-renewal or shall cause Mortgage Borrower to), at its sole cost and expense, promptly and timely perform and observe all the material terms, covenants and conditions required to be performed and observed by Mortgage Borrower as lessee under nonconformance of the Ground Lease (including, but not limited to, the payment of all rent, additional rent, percentage rent and other charges required to be paid under the Ground Lease).
(b) If Mortgage Borrower beyond any applicable notice or grace period. The SLA shall be in default beyond all applicable notice subject to the continued existence and cure periods under enforceability of the Ground Lease, thenprovided, subject to however, any termination or expiration of the Ground Lease which occurs as a result of any default, non-renewal or non-conformance by Tower Company under the terms of the Ground Lease, and without the rights prior written consent of Mortgage Lender under the Mortgage Loan DocumentsCarrier, Borrower (on behalf shall be construed as an event of itself and Mortgage Borrower) shall grant Lender the right (but not the obligation), to cause such default under the Ground Lease to be remedied and otherwise exercise any and all rights of Mortgage 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 under the Loan Documents, and Lender shall have the right to enter all or any portion of the Property at such times and in such manner as Lender deems reasonably necessary, to prevent or to cure any such default, subject to the terms of the SLA.
(b) In the event that the Ground LeaseLease requires the Ground Lessor to consent to the making of the applicable SLA, it shall be a condition precedent to the effectiveness of the SLA that Tower Company obtains such consent. The form and content of such consent shall be subject to Carrier's approval, not to be unreasonably withheld, delayed or conditioned.
(c) The actions In the event that Tower Company loses its possessory right to a Site because of a termination or payments expiration of Lender to cure a Ground Lease which occurs during the term or any default by Mortgage Borrower under renewal term of the Ground Lease and not at or beyond the final renewal term if all renewal terms were exercised hereunder (including any agreed upon extension), Tower Company hereby grants to Carrier the option to purchase the Tower Facilities on the applicable Site (and any accessories, accessions, attachments, fixtures or other equipment in connection therewith, etc., including without limitation storage buildings and fences) for the fair market value of the Tower Facilities (and such accessories, accessions, attachments, fixtures, equipment, etc.) such fair market value to be measured as though the Tower Facilities were to continue operation at the Tower Site. Such right and agreement does not waive any requirement or covenant that Tower Company must maintain the Site Lease in full force and effect and shall not remove commit any act which would result in a non-renewal, default or waive, as between Borrower and Lender, the default that occurred under this Agreement by virtue nonconformance of the default by Mortgage Borrower under the Ground Lease. All sums expended by Lender to cure Lease beyond any such default shall be paid by Borrower applicable notice or Mortgage Borrower to Lender, upon demand, with interest on such sum at the then applicable Interest Rate from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the Pledge Agreementgrace period.
(d) Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) notify Lender in writing of the occurrence of any material default by Ground Lessor of which Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor or Operating Lessee has knowledge promptly after such Person becomes aware of the same, and the receipt by Mortgage Borrower of any notice from Ground Lessor under the Ground Lease claiming the occurrence of any default by Mortgage Borrower under the Ground Lease. Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) promptly deliver to Lender a copy of any such written notice of default.
(e) Within ten (10) days after receipt of written demand by Lender, Borrower shall cause Mortgage Borrower Tower Company agrees to use reasonable efforts to obtain from deliver a nondisturbance and attornment agreement with the Ground Lessor and furnish to Lender the estoppel certificate of Ground Lessor stating (i) that the Ground Lease is unmodified and in full force and effect, (ii) the date through which rent has been paid, (iii) whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any, (iv) whether any fee mortgages are in effect, (v) whether a right of first offer is in effect, (vi) the current adjusted amounts for dollar amounts in the Ground Lease and (vii) the amount of any security deposits.
(f) Subject to the terms and conditions Carrier's continued possession of the Mortgage Loan Documents, Borrower shall cause Mortgage Borrower to promptly execute, acknowledge and deliver to Lender such instruments as may be reasonably required to permit Lender to cure any default Premises under the Ground Lease or permit Lender to take such other action required to enable Lender to cure or remedy applicable SLA and/or the matter in default and preserve the security interest of Lender under the Loan Documents with respect to the Collateral. Subject to the terms and conditions of the Mortgage Loan Documents, Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, after the occurrence of an Event of Default for which Lender has accelerated the Loan, any and all acts and to execute any and all documents that are necessary to preserve any rights of Mortgage 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 Mortgage Borrower whatsoever in respect of any part assumption and/or assignment of the Ground Lease (and to Carrier in the above powers granted event that Tower Company elects to Lender are coupled with an interest and shall be irrevocable).
(g) Notwithstanding anything to the contrary contained in this Agreement with respect to terminate the Ground Lease:
(i) The Lien . Carrier acknowledges and agrees that the language provided in paragraph 5 of the Pledge Agreement attaches Estoppel Certificate attached hereto as Attachment III will be sufficient to all comply with the requirements of Mortgage Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including, without limitation, all of Mortgage Borrower’s rights, as debtor, to remain in possession of the Property.
(ii) Borrower this provision. This provision shall not cause imply that Carrier consents to the expiration or permit Mortgage Borrower to, without Lender’s written consent, elect to treat termination of 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 voidby Tower Company.
Appears in 1 contract
Sources: Master Build to Suit and Lease Agreement (Tritel Finance Inc)
Ground Lease. (a) Borrower shall (or shall cause Mortgage Borrower to)shall, at its Borrower’s sole cost and expense, promptly and timely perform and observe all the material terms, covenants and conditions required to be performed and observed by Mortgage Borrower as lessee under the Ground Lease (including, but not limited to, the payment of all rent, additional rent, percentage rent and other charges required to be paid under the Ground Lease). Borrower shall not provide any notice of non-renewal of the Ground Lease to Ground Lessor.
(b) If Mortgage Borrower shall be in default beyond all applicable notice and cure periods under the Ground Lease, then, subject to the terms of the Ground Lease, and the rights of Mortgage Lender under the Mortgage Loan Documents, Borrower (on behalf of itself and Mortgage Borrower) shall grant Lender the right (but not the obligation), to cause such default under the Ground Lease to be remedied and otherwise exercise any and all rights of Mortgage 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 under the Loan Documents, and Lender shall have the right to enter all or any portion of the Property at such times and in such manner as Lender deems reasonably necessary, to prevent or to cure any such default, subject to the terms of the Ground Lease.
(c) The actions or payments of Lender to cure any default by Mortgage Borrower under the Ground Lease shall not remove or waive, as between Borrower and Lender, the default that occurred under this Agreement by virtue of the default by Mortgage Borrower under the Ground LeaseLease 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 or Mortgage Borrower to Lender, upon demand, with interest on such sum at the then applicable Interest Rate rate set forth in this Agreement from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the Pledge Agreementrelated Security Instrument.
(dc) Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) notify Lender promptly in writing of the occurrence of any material default by Ground Lessor of which Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor under the Ground Lease or Operating Lessee has knowledge promptly after such Person becomes aware of the same, and following the receipt by Mortgage Borrower of any written notice from Ground Lessor under the Ground Lease noting or claiming the occurrence of any default by Mortgage 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 (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) promptly deliver to Lender a copy of any such written notice of default.
(ed) Within ten Upon written request from Lender and provided that Borrower shall not have notified Lender or does not notify Lender within five (105) days after Business Days of receipt of written demand by such request of Lender, of its intent to release the Ground Leased Property in accordance with Section 2.10, Borrower shall cause Mortgage Borrower to use reasonable efforts to obtain from Ground Lessor and furnish to Lender the estoppel certificate of Ground Lessor stating (i) that the Ground Lease is unmodified and in full force and effect, (ii) the date through which rent has been paid, (iii) whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any, (iv) whether any fee mortgages are in effect, (v) whether a right of first offer is in effect, (vi) the current adjusted amounts for dollar amounts in the Ground Lease and (vii) the amount of any security deposits.
(f) Subject to the terms and conditions of the Mortgage Loan Documents, Borrower shall cause Mortgage Borrower to promptly execute, acknowledge and deliver to Lender such instruments as may reasonably be reasonably 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 Collateraleach Ground Leased Property. Subject to the terms and conditions of the Mortgage Loan Documents, Borrower irrevocably appoints Lender as its true and lawful attorney-in-attorney in fact to do, in its name or otherwise, after unless Borrower has notified Lender of its intention to release the occurrence Ground Leased Property in accordance with Section 2.10, during the continuance of an Event of Default for which Lender has accelerated the LoanDefault, any and all acts and to execute any and all documents that are necessary to preserve any rights of Mortgage Borrower under or with respect to the each Ground Lease, including, without limitation, the right to effectuate any extension or renewal of the each Ground Lease, or to preserve any rights of Mortgage Borrower whatsoever in respect of any part of the each Ground Lease (and the above powers granted to Lender are coupled with an interest and shall be irrevocable).
(e) Borrower shall exercise each individual option, if any, to extend or renew the term of the Ground Lease within the time periods prescribed under the applicable Ground Lease but under no circumstances later than the current expiration date under the terms of the Ground Lease (the “Renewal Deadline”), 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’s failure to exercise the aforesaid renewal option within the aforesaid period shall, at Lender’s option, constitute an immediate Event of Default hereunder. Additionally, Borrower acknowledges that Borrower has delivered to Lender an original executed but undated notice to the landlord under the Ground Lease exercising Borrower’s renewal rights thereunder (such notice, the “Renewal Notice”), which renewal notice is attached hereto as Exhibit G. Borrower hereby irrevocably grants Lender the right to date and transmit the Renewal Notice to the landlord under the Ground Lease; provided, however, Lender shall only do so if, as of the Renewal Deadline, Lender is not in receipt of evidence reasonably acceptable to Lender that Borrower has exercised its right to renew the Ground Lease. Notwithstanding the foregoing to the contrary, with respect to the Peach Street Ground Lease, Borrower shall be entitled, with Lender’s prior written consent (which consent shall not be unreasonably withheld), to not renew such Ground Lease and, if Lender’s consent to Borrower’s request not to renew such Ground Lease is granted, neither Lender nor Borrower shall submit the Renewal Notice and no Event of Default shall exist (or be deemed to exist) because of such failure.
(f) Notwithstanding anything contained in the Ground Lease to the contrary, Borrower shall not, without prior written consent of Lender, sublet any portion of the leasehold estate created by the Ground Lease except in accordance with the express terms and conditions of this Agreement as is applicable to Leases.
(g) Notwithstanding anything to the contrary contained in this Agreement with respect to the Ground Lease:
(i) The Lien lien of the Pledge Agreement related Security Instrument attaches to all of Mortgage 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 Mortgage Borrower’s rights, as debtor, to remain in possession of the related Ground Leased Property.
(ii) Borrower shall not cause or permit Mortgage Borrower tonot, without Lender’s prior written consent, elect to treat the Ground Lease as terminated under subsection Subsection 365(h)(l) of the Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(iii) As security for the Debt, Borrower unconditionally assigns, transfers and sets over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by the lessor under the Ground Lease under the Bankruptcy Code. Lender and Borrower shall proceed jointly or in the name of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of the Ground Lease, including, without limitation, the right to file and prosecute any proofs of claim, complaints, motions, applications, notices and other documents in any case in respect of lessor under the Bankruptcy Code. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until all of the Debt shall have been satisfied and discharged in full. Any amounts received by Lender or Borrower as damages arising out of the rejection of the Ground Lease as aforesaid shall be applied to all costs and expenses of Lender (including, without limitation, attorneys’ fees and costs) incurred in connection with the exercise of any of its rights or remedies in accordance with the applicable provisions of this Agreement.
(iv) If, pursuant to Subsection 365(h) of the Bankruptcy Code, Borrower seeks to offset, against the rent reserved in the Ground Lease, the amount of any damages caused by the nonperformance by the lessor of any of its obligations thereunder after the rejection by lessor of the Ground Lease under the Bankruptcy Code, then Borrower shall not affect any offset of such amounts unless it shall have provided written notice to Lender of its intent to do so and Lender shall have consented thereto (provided Lender shall be deemed to have consented thereto if it shall fail to object to the same in written notice to Borrower within ten (10) Business Days after receipt of the aforementioned notice in which case Borrower may proceed to offset the amounts set forth in Borrower’s notice).
(v) If any action, proceeding, motion or notice shall be commenced or filed in respect of any lessor of all or any part of the Ground Leased Property in connection with any case under the Bankruptcy Code, Lender and Borrower shall cooperatively conduct and control any such litigation with counsel agreed upon between Borrower and Lender in connection with such litigation. Borrower shall, upon demand, pay to Lender all reasonable actual out of pocket costs and expenses (including reasonable attorneys’ fees and costs) actually paid or actually incurred by Lender in connection with the cooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be secured by the lien of the related Security Instrument.
(vi) Borrower shall promptly, after obtaining knowledge of such filing notify Lender in writing 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.
(vii) 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 Security Instrument, deed in lieu of foreclosure or otherwise, such party shall (x) succeed to all of the rights of and benefits accruing to Borrower under the Ground Lease, and (y) be entitled to exercise all of the rights and benefits accruing to Borrower under the Ground Lease. At such 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 against Borrower.
(viii) Borrower shall not, without Lender’s written consent, fail to exercise any option or right to renew or extend the term of the Ground Lease in accordance with the terms of the related Ground Lease, and shall give immediate written notice to Lender and shall execute, acknowledge, deliver and record any document requested by Lender to evidence the lien of the related Security Instrument on such extended or renewed lease term; provided, however, Borrower shall 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 forgo exercising such option or right to renew or extend. 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 attorney in fact as provided above in Lender’s own name or in the name of and on behalf of a nominee of Lender, as Lender may determine in the exercise of its sole and absolute discretion.
(ix) Borrower shall not waive, excuse, condone or in any way release or discharge the Ground Lessor under the Ground Lease of or from the Ground Lessor’s material obligations, covenant and/or conditions under the related Ground Lease without the prior written consent of Lender (which consent will not be unreasonably withheld, delayed or conditioned).
(x) 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, the Ground Lease, other than an extension of the term under its terms, or an expiration of the Ground Lease pursuant to its terms, provided that Borrower may, with the prior written consent of Lender (which consent shall not be unreasonably withheld, conditioned or delayed), enter into a material modification of the Crossroads Ground Lease in order to make the Crossroads Property more marketable for sale (as determined by Borrower exercising its commercially reasonable business judgment), so long as (I) there exists no Event of Default, (II) such modification does not adversely affect Lender’s lien under the Loan Documents or Lender’s rights and interests in, to and under the Crossroads Ground Lease or otherwise cause a Material Adverse Effect with respect to the Crossroads Property, and (III) Lender shall have received a copy of any such amendment to the Crossroads Ground Lease and an updated estoppel from the Ground Lessor thereunder, which estoppel shall be (A) dated on or about the date of, and delivered simultaneously with, the execution of such amendment, (B) substantially similar to the estoppel delivered to Lender in connection with the closing of the Loan and (C) otherwise reasonably acceptable to Lender. 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 Lessor’s interest in the Ground Lease by Borrower or any Affiliate of Borrower shall be accomplished by Borrower in such a manner so as to avoid a merger of the interests of lessor and lessee in the Ground Lease, unless consent to such merger is granted by Lender.
Appears in 1 contract
Sources: Loan Agreement (Retail Value Inc.)
Ground Lease. Borrower hereby covenants and agrees as follows:
(a) Borrower shall (or shall cause Mortgage Borrower to), at its sole cost and expense, promptly and timely perform and observe all will defend the material terms, covenants and conditions required to be performed and observed by Mortgage Borrower as lessee leasehold estate under the Ground Lease (including, but not limited to, for the payment entire remainder of all rent, additional rent, percentage rent and other charges required to be paid under the term set forth in the Ground Lease)Lease against each and every Person lawfully claiming by, through or under Borrower, or who may claim the same or any part thereof.
(b) If Mortgage Borrower will at all times pay or cause to be paid prior to delinquency all rents, additional rents and other charges and impositions payable by Borrower when due under the Ground Lease and shall be fully perform and comply in default beyond all applicable notice material respects with all other agreements, covenants, terms and cure periods conditions imposed upon or assumed by it, as tenant or lessee, under the Ground Lease, then, subject . If Borrower shall fail to do so beyond any applicable notice and curative period expressly afforded under the terms of the Ground Lease, and the rights of Mortgage Lender under the Mortgage Loan Documents, Borrower (on behalf of itself and Mortgage Borrower) shall grant Lender the right may (but shall not be obligated to) take any action Lender deems necessary or desirable to prevent or to cure any default by Borrower in the obligation), to cause such default performance of or compliance with any of Borrower’s covenants or obligations under the Ground Lease to be remedied and otherwise exercise Lease. Upon receipt by Lender from the Ground Lessor of any and all rights written notice of Mortgage default by Borrower under the Ground Lease, as may be necessary Borrower hereby expressly grants to prevent or cure any default provided such actions are necessary to protect Lender’s interest under the Loan Documents, and agrees that Lender shall have have, the absolute and immediate right to enter all in and upon the Property or any portion of the Property at such times and in such manner as part thereof that Lender deems reasonably necessary, necessary or desirable with or without notice in order to prevent or to cure any default by Borrower under the Ground Lease and take any other action in connection therewith that Lender deems necessary or prudent. Borrower does hereby authorize and irrevocably appoint and constitute Lender as its true and lawful attorney-in-fact, which appointment is coupled with an interest, in its name, place and stead, to take any and all such default, subject actions by Lender pursuant to the terms of this paragraph to perform and comply with all the obligations of Borrower under the Ground Lease.
(c) The actions , but without any obligation so to do or payments take any such action. Lender may pay and expend such sums of money as Lender deems necessary for any such purpose, and Borrower hereby agrees to cure pay to Lender, immediately upon demand, all such sums so paid and expended by Lender. All such sums so paid and expended by Lender shall accrue interest at the Default Rate and be added to and be secured by the Lien of the Mortgage. In the event of any default failure by Mortgage Borrower to perform or cause the performance of any covenant on the part of Borrower to be observed and performed under the Ground Lease, the performance by Lender of the applicable covenant on behalf of Borrower under the Ground Lease shall not remove or waive, as between Borrower and Lender, the default that occurred under this Agreement by virtue corresponding Event of the default by Mortgage Borrower Default under the terms hereof.
(c) Borrower shall enforce the material terms, covenants and conditions in the Ground Lease. All sums expended by Lender to cure any such default shall be paid by Borrower or Mortgage Borrower to Lender, upon demand, with interest on such sum at the then applicable Interest Rate from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed Lease to be secured observed by the Pledge AgreementGround Lessor.
(d) Borrower shall shall, within ten (or shall cause Mortgage 10) days after written request from Lender, deliver to Lender proof of payment of all items that are required to be paid by Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) notify Lender in writing of the occurrence of any material default by Ground Lessor of which Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor or Operating Lessee has knowledge promptly after such Person becomes aware of the same, and the receipt by Mortgage Borrower of any notice from Ground Lessor under the Ground Lease claiming Lease, including rent, taxes, operating expenses, fees and other charges, as applicable. Borrower shall promptly deliver to Lender copies of all notices formally given with respect to or which affect the occurrence Ground Lease, including pleadings or notices of any default by Mortgage Borrower given under the Ground Lease. Borrower further covenants that it shall (not do or permit anything to occur or fail to occur which will be grounds for declaring a forfeiture or termination of the Ground Lease, and upon any such failure as aforesaid, Borrower shall cause Mortgage Borrower to) be subject to all of the rights and Equity Owner shall (or shall cause Operating Lessee to) promptly deliver to remedies granted Lender a copy in this Agreement and any other Loan Documents, after the expiration of any such written notice of defaultapplicable opportunity to cure expressly provided herein or in any other applicable Loan Document.
(e) Within ten (10) days after receipt Borrower will not surrender the leasehold estate and interest evidenced and created by the Ground Lease, nor terminate or cancel the Ground Lease, in whole or in part, without the prior written consent of written demand by Lender, which consent may be given or withheld in the sole discretion of Lender. Borrower shall cause Mortgage Borrower will not amend, modify, change, supplement, alter or further separate the Ground Lease, without the prior written consent of Lender, such consent to use reasonable efforts to obtain from Ground Lessor and furnish to Lender the estoppel certificate not be unreasonably withheld, conditioned or delayed. Any surrender, termination, cancellation, amendment, modification, change, supplementation, alteration or further separation of Ground Lessor stating (i) that the Ground Lease is unmodified and in full force and effectwithout the prior written consent thereto by Lender shall constitute an Event of Default hereunder.
(f) No release or forbearance of any of Borrower’s obligations under the Ground Lease, (ii) pursuant to the date through which Ground Lease or otherwise, shall release Borrower from any of its obligations under this Agreement, including obligations with respect to the payment of rent has been paid, (iii) whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any, (iv) whether any fee mortgages are in effect, (v) whether a right of first offer is in effect, (vi) the current adjusted amounts as provided for dollar amounts in the Ground Lease and (vii) the amount performance of any security deposits.
(f) Subject to the terms and conditions all of the Mortgage Loan Documentsterms, Borrower shall cause Mortgage Borrower to promptly executeprovisions, acknowledge covenants, conditions and deliver to Lender such instruments as may be reasonably required to permit Lender to cure any default under agreements contained in the Ground Lease or permit Lender to take such other action required to enable Lender to cure or remedy the matter in default be kept, performed and preserve the security interest of Lender under the Loan Documents complied with respect to the Collateral. Subject to the terms and conditions of the Mortgage Loan Documents, by Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, after the occurrence of an Event of Default for which Lender has accelerated the Loan, any and all acts and to execute any and all documents that are necessary to preserve any rights of Mortgage 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 Mortgage 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)therein.
(g) Notwithstanding anything Unless Lender shall otherwise expressly consent in writing, the fee title to the contrary contained Property and the leasehold estate created and evidenced by the Ground Lease shall not merge, but shall always remain separate and distinct, notwithstanding the union of said estates either in this Agreement with respect to the landlord or in the tenant, or in a third party by purchase or otherwise.
(h) If there shall be filed by or against Borrower a petition under the United States Bankruptcy Code, 11 U.S.C. § 101 et seq. (the “Bankruptcy Code”), and Borrower, as lessee under the Ground Lease:, shall determine to reject the Ground Lease pursuant to Section 365(a) of the Bankruptcy Code, Borrower shall give Lender not less than thirty (30) 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 thirty (30) 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 covenants to cure or provide adequate assurance of prompt cure of all defaults and provide adequate assurance of future performance under the Ground Lease. If Lender serves upon Borrower the notice described in the preceding sentence, Borrower shall not seek to reject the Ground Lease, and Borrower shall comply with the demand provided for in the clause (i) of the preceding sentence within thirty (30) days after such notice shall have been given, subject to the performance by Lender of the covenant provided for in clause (ii) of the preceding sentence. Further, 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 Subsection 365(d)(1) of the Bankruptcy Code for an order extending the period during which the Ground Lease may be rejected or assumed.
(i) The Lien of the Pledge Agreement attaches Mortgage shall attach to all of Mortgage Borrower’s rights and remedies at any time arising under or pursuant to Subsection Section 365(h) of the Bankruptcy Code, including, without limitation, including all of Mortgage Borrower’s rights, as debtor, rights to remain in possession of the Property.
(ii) . Borrower shall not cause or permit Mortgage Borrower to, without Lender’s written consent, elect to treat the Ground Lease as terminated under subsection 365(h)(lSection 365(h)(1) of the Bankruptcy Code. Any , and any such election made without Lender’s prior written consent shall be void.
(j) If pursuant to Section 365(h) of the Bankruptcy Code, Borrower shall seek to offset against any rent reserved in the Ground Lease the amount of any damages caused by the nonperformance by Ground Lessor or any other party of any of their respective obligations thereunder after the rejection by Ground Lessor or such other party of the Ground Lease under the Bankruptcy Code, then Borrower shall, prior to effecting such offset, notify Lender of its intent to do so, setting forth the amount proposed to be so offset and the basis therefor. Lender shall have the right to object to all or any part of such offset that, in the reasonable judgment of Lender, would constitute a breach of the Ground Lease, and in the event of such objection, Borrower shall not affect any offset of the amounts found objectionable by Lender. To the extent permitted under applicable law, neither Lender’s failure to object as aforesaid nor any objection relating to such offset shall constitute an approval of any such offset by Lender.
(k) If any action, proceeding, motion or notice shall be commenced or filed in respect of Ground Lessor under the Ground Lease or any other party or in respect of the Ground Lease in connection with any case under the Bankruptcy Code, then Lender shall have the option to intervene in any such litigation with counsel of Lender’s choice. Lender may proceed in its own name in connection with any such litigation, and Borrower agrees to execute any and all powers, authorizations, consents or other documents reasonably required by Lender in connection therewith.
(l) Borrower shall, after obtaining knowledge thereof, promptly notify Lender in writing of any filing by or against Ground Lessor (or any other party with an interest in the “landlord’s” interest under the Ground Lease and/or the fee simple interest in and to the Property) of a petition under the Bankruptcy Code. Borrower shall promptly deliver to Lender, following receipt, copies of any and all notices, summonses, pleadings, applications and other documents received by Borrower in connection with any such petition and any proceedings relating thereto.
(m) Lender shall have the right upon written notice to Borrower to participate in the adjustment and settlement of any insurance proceeds and in the determination of any condemnation award under the Ground Lease to the extent and in the manner provided in the Ground Lease and in a manner consistent with the terms of the Loan Documents.
(n) To the extent applicable, if Ground Lessor rejects or disaffirms the Ground Lease or purports or seeks to disaffirm the Ground Lease pursuant to the Bankruptcy Code, then: (i) to the extent permitted by law, Borrower shall remain in possession of the Property demised under the Ground Lease and shall perform all acts reasonably necessary for Borrower to remain in such possession for the unexpired term of the Ground Lease (including all renewals), whether the then existing terms and provisions of the Ground Lease require such acts or otherwise; and (ii) all the terms and provisions of this Agreement and the Lien created by the Mortgage shall remain in full force and effect and shall extend automatically to all of Borrower’s rights and remedies arising at any time under, or pursuant to, Section 365(h) of the Bankruptcy Code, including all of Borrower’s rights to remain in possession of the Property.
Appears in 1 contract
Ground Lease. (a) Borrower shall (or shall cause Mortgage Borrower to)With respect to the Ground Lease, at its sole cost and expense, promptly and timely Mortgagor agrees:
a. To perform and observe all obligations of the material terms, covenants and conditions required to be performed and observed by Mortgage Borrower as lessee tenant under the Ground Lease (includingand any statute, but ordinance, rule or regulation relating thereto, and not limited to, the payment of all rent, additional rent, percentage rent and other charges required to be paid under the Ground Lease).
(b) cause or permit any breach thereof. If Mortgage Borrower Mortgagor shall be in default beyond all applicable notice and cure periods under the Ground Lease, then, subject to the terms or if Mortgagee shall receive notice of the Ground Lease, and the rights of Mortgage Lender under the Mortgage Loan Documents, Borrower (on behalf of itself and Mortgage Borrower) shall grant Lender the right (but not the obligation), to cause such any default under the Ground Lease to be remedied and otherwise exercise any and all rights of Mortgage Borrower by Mortgagor under the Ground Lease, as may be Mortgagee may, at its option but without any obligation to do so, take any action necessary to prevent or cure any default provided such actions are necessary to protect Lender’s interest under the Loan Documents, and Lender shall have the right to enter all or any portion of the Property at such times and in such manner as Lender deems reasonably necessary, to prevent 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 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 other estate, 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 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 Mortgage 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 (cother than as permitted pursuant to Section 3.4 hereof) The actions 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 payments be terminable by the lessee thereunder; (ii) in the event of Lender 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 cure any default by Mortgage Borrower the lessor under the Ground Lease shall not remove or waiveto the purchaser at the sale of the Property on such foreclosure, as between Borrower and Lender, the default case may be. In the event that occurred under this Agreement by virtue any portion of the default by Mortgage Borrower under the Ground Lease. All sums expended by Lender to cure any such default Property shall be paid by Borrower or Mortgage Borrower sublet pursuant to Lenderthe terms of this subsection, upon demand, with interest on such sum at the then applicable Interest Rate from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness sublease shall be deemed to be secured by the Pledge Agreement.
(d) Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) notify Lender included in writing of the occurrence of any material default by Ground Lessor of which Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor or Operating Lessee has knowledge promptly after such Person becomes aware of the same, and the receipt by Mortgage Borrower of any notice from Ground Lessor under the Ground Lease claiming the occurrence of any default by Mortgage Borrower under the Ground Lease. Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) promptly deliver to Lender a copy of any such written notice of default.
(e) Within ten (10) days after receipt of written demand by Lender, Borrower shall cause Mortgage Borrower to use reasonable efforts to obtain from Ground Lessor and furnish to Lender the estoppel certificate of Ground Lessor stating (i) that the Ground Lease is unmodified and in full force and effect, (ii) the date through which rent has been paid, (iii) whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any, (iv) whether any fee mortgages are in effect, (v) whether a right of first offer is in effect, (vi) the current adjusted amounts for dollar amounts in the Ground Lease and (vii) the amount of any security deposits.
(f) Subject to the terms and conditions of the Mortgage Loan Documents, Borrower shall cause Mortgage Borrower to promptly execute, acknowledge and deliver to Lender such instruments as may be reasonably 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 Collateral. Subject to the terms and conditions of the Mortgage Loan Documents, Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, after the occurrence of an Event of Default for which Lender has accelerated the Loan, any and all acts and to execute any and all documents that are necessary to preserve any rights of Mortgage 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 Mortgage 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 Pledge Agreement attaches to all of Mortgage Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including, without limitation, all of Mortgage Borrower’s rights, as debtor, to remain in possession of the Property.
(ii) Borrower shall not cause or permit Mortgage Borrower to, 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.
Appears in 1 contract
Ground Lease. (a) Borrower shall (or shall cause Mortgage Borrower to)With respect to the Ground Lease, at its sole cost and expense, promptly and timely Trustor agrees:
a. To perform and observe all obligations of the material terms, covenants and conditions required to be performed and observed by Mortgage Borrower as lessee tenant under the Ground Lease (includingand any statute, but ordinance, rule or regulation relating thereto, and not limited to, the payment of all rent, additional rent, percentage rent and other charges required to be paid under the Ground Lease).
(b) cause or permit any breach thereof. If Mortgage Borrower Trustor shall be in default beyond all applicable notice and cure periods under the Ground Lease, then, subject to the terms or if Beneficiary shall receive notice of the Ground Lease, and the rights of Mortgage Lender under the Mortgage Loan Documents, Borrower (on behalf of itself and Mortgage Borrower) shall grant Lender the right (but not the obligation), to cause such any default under the Ground Lease to be remedied and otherwise exercise any and all rights of Mortgage Borrower under the Ground Lease, as may be Beneficiary may, at its option but without any obligation to do so, take any action necessary to prevent or cure any default provided such actions are necessary to protect Lender’s interest under the Loan Documents, and Lender shall have the right to enter all or any portion of the Property at such times and in such manner as Lender deems reasonably necessary, to prevent or desirable to cure any such default, Beneficiary being authorized to enter upon the Land for such purposes with or without notice and without becoming a mortgagee in possession. Trustor shall, immediately on demand, pay to Beneficiary all costs of Beneficiary 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 Beneficiary 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 Trustor), to give prompt notice to Beneficiary of any litigation or arbitration with respect to the Ground Lease, and to furnish to Beneficiary all information that it may reasonably request concerning the performance by Trustor of Trustor's obligations under the Ground Lease.
c. That the provisions hereof shall be deemed to be obligations of Trustor in addition to Trustor'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 Trustor is obligated under the Ground Lease shall not restrict or limit Trustor's obligations to perform promptly all of its obligations as tenant under the Ground Lease, and nothing in this Deed of Trust shall be construed as requiring Trustor or Beneficiary to take or omit to take any action which would cause a default under the Ground Lease.
d. That so long as this Deed of Trust 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 Trustor acquires the fee title or any other estate, title or interest in the Land, this Deed of Trust 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 covered by this Deed of Trust. Trustor shall notify Beneficiary of any such acquisition by Trustor and, on written request by Beneficiary, shall cause to be executed and recorded all such documents and instruments as may in the reasonable opinion of Beneficiary be required to carry out the intent and meaning hereof.
e. That, so long as this Deed of Trust is in effect, no termination or surrender by Trustor as tenant under the Ground Lease to Landlord thereunder, shall be valid or effective. The terms of the Ground Lease may not be modified or terminated or subordinated to any mortgage, deed of trust, lease or other interest, either orally or in writing, other than as a result of the action or inaction of Beneficiary, without the prior written consent of Beneficiary. If requested in writing, Beneficiary agrees to cooperate with Trustor. at Trustor's sole cost and expense, to preserve Beneficiary's interest in the Ground Lease and avoid a default under the Ground Lease.
f. That if the Ground Lease is for any reason whatsoever terminated prior to the expiration of its term and Trustor is unwilling or unable to reinstate the Ground Lease or enter into a new ground lease, then if pursuant to any provision of the Ground Lease or otherwise, Beneficiary or its designee shall acquire from Landlord a new lease or other agreement for the use of the Land, Trustor shall have no right, title or interest in or to such new lease or other agreement or the estate created thereby. If Beneficiary acquires any such new lease or other agreement, the termination of the Ground Lease shall be deemed to have been consented to by Beneficiary.
g. That, so long as this Deed of Trust is in effect. Trustor 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 Beneficiary, Trustor shall deliver to Beneficiary estoppel certificates from Landlord in form and substance acceptable to Beneficiary to the extent Landlord is obligated to deliver such certificates pursuant to the terms of the Ground Lease.
(c) The actions or payments of Lender to cure any default by Mortgage Borrower under the Ground Lease shall not remove or waive, as between Borrower and Lender, the default that occurred under this Agreement by virtue of the default by Mortgage Borrower under the Ground Lease. All sums expended by Lender to cure any such default shall be paid by Borrower or Mortgage Borrower to Lender, upon demand, with interest on such sum at the then applicable Interest Rate from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the Pledge Agreement.
(d) Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) notify Lender in writing of the occurrence of any material default by Ground Lessor of which Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor or Operating Lessee has knowledge promptly after such Person becomes aware of the same, and the receipt by Mortgage Borrower of any notice from Ground Lessor under the Ground Lease claiming the occurrence of any default by Mortgage Borrower under the Ground Lease. Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) promptly deliver to Lender a copy of any such written notice of default.
(e) Within ten (10) days after receipt of written demand by Lender, Borrower shall cause Mortgage Borrower to use reasonable efforts to obtain from Ground Lessor and furnish to Lender the estoppel certificate of Ground Lessor stating (i) that the Ground Lease is unmodified and in full force and effect, (ii) the date through which rent has been paid, (iii) whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any, (iv) whether any fee mortgages are in effect, (v) whether a right of first offer is in effect, (vi) the current adjusted amounts for dollar amounts in the Ground Lease and (vii) the amount of any security deposits.
(f) Subject to the terms and conditions of the Mortgage Loan Documents, Borrower shall cause Mortgage Borrower to promptly execute, acknowledge and deliver to Lender such instruments as may be reasonably 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 Collateral. Subject to the terms and conditions of the Mortgage Loan Documents, Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, after the occurrence of an Event of Default for which Lender has accelerated the Loan, any and all acts and to execute any and all documents that are necessary to preserve any rights of Mortgage 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 Mortgage 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 Pledge Agreement attaches to all of Mortgage Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including, without limitation, all of Mortgage Borrower’s rights, as debtor, to remain in possession of the Property.
(ii) Borrower shall not cause or permit Mortgage Borrower to, 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.
Appears in 1 contract
Sources: Leasehold Deed of Trust (Inland Western Retail Real Estate Trust Inc)
Ground Lease. With respect to the Ground Lease, Grantor agrees as follows:
(a) Borrower Grantor shall (or shall cause Mortgage Borrower to), at its sole cost and expense, promptly and timely perform and observe all obligations of the material terms, covenants and conditions required to be performed and observed by Mortgage Borrower as lessee tenant under the Ground Lease (includingand under any statute, but ordinance, rule or regulation relating to the Ground Lease, and shall not limited tocause or permit any breach thereof, and shall enforce the payment obligations of the landlord under the Ground Lease to the end that Grantor may enjoy all rent, additional rent, percentage rent and other charges required to be paid the rights granted under the Ground Lease). If Grantor shall default under the Ground Lease, or if Beneficiary shall receive notice of any default under the Ground Lease, Beneficiary may, at its option but without any obligation to do so, take any action necessary or desirable to cure any such default, Beneficiary being authorized to enter upon that portion of the real property subject to the Ground Lease (the "Ground Lease Property") and the remainder of the Land for such purposes with or without notice and without becoming a mortgagee in possession. Grantor shall pay to Beneficiary all costs of Beneficiary 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 Default Rate.
(b) If Mortgage Borrower Grantor shall be promptly (and in default beyond all any event within five (5) Business Days) after the same is received or sent by the applicable Loan Party) deliver to Beneficiary copies of any written notice and cure periods under the Ground Lease, then, subject to the terms of the Ground Lease, and the rights of Mortgage Lender under the Mortgage Loan Documents, Borrower (on behalf of itself and Mortgage Borrower) shall grant Lender the right (but not the obligation), to cause such default under the Ground Lease to that is received, or sent, by Grantor.
(c) Grantor acknowledges and agrees that there shall, without the written consent of Beneficiary, be remedied and otherwise exercise any and all rights no merger of Mortgage Borrower under the Ground Lease nor of the leasehold estate or other estate created thereby, with the fee estate in the property covered by such Ground Lease by reason of the fact that such Ground Lease, as or the leasehold estate or other estate created thereby, may be necessary to prevent held directly or cure indirectly by or for the account of any default provided person or entity who or which also holds the fee or leasehold estate in such actions are necessary to protect Lender’s interest under property (including, without limitation, by virtue of the Loan Documents, and Lender shall have the exercise by Grantor of any right to enter purchase all or any portion of the Ground Lease Property at such times and in such manner as Lender deems reasonably necessary, to prevent or to cure any such default, subject to the terms of the Ground Lease.
(c) The actions or payments of Lender to cure any default exercise by Mortgage Borrower landlord under the Ground Lease shall not remove of any right to require Grantor to purchase all or waive, as between Borrower and Lender, the default that occurred under this Agreement by virtue any portion of the default Ground Lease Property, which purchase by Mortgage Borrower under the Ground Lease. All sums expended by Lender to cure any such default Grantor, in either such case, shall be paid by Borrower or Mortgage Borrower subject to Lender, upon demand, with interest on such sum at the then applicable Interest Rate from restrictions contained in the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the Pledge Loan Agreement).
(d) Borrower shall (Grantor acknowledges and agrees that no termination or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) notify Lender in writing of the occurrence of any material default surrender by Ground Lessor of which Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor or Operating Lessee has knowledge promptly after such Person becomes aware of the same, and the receipt by Mortgage Borrower of any notice from Ground Lessor Grantor under the Ground Lease claiming the occurrence to any landlord thereunder shall be valid or effective. The terms of any default by Mortgage Borrower under the Ground Lease. Borrower shall (Lease may not be modified, amended, supplemented, waived or shall cause Mortgage Borrower to) and Equity Owner shall (released, or shall cause Operating Lessee to) promptly deliver terminated or subordinated to Lender a copy any mortgage, agreement, lease or other interest, either orally or in writing, without the prior written consent of any such written notice of defaultBeneficiary.
(e) Within ten (10) days after receipt of written demand by Lender, Borrower shall cause Mortgage Borrower to use reasonable efforts to obtain from Ground Lessor Grantor acknowledges and furnish to Lender the estoppel certificate of Ground Lessor stating (i) agrees that if the Ground Lease is unmodified and in full force and effect, (ii) for any reason whatsoever terminated prior to the date through which rent has been paid, (iii) whether or not there are any defaults thereunder and specifying the nature expiration of such claimed defaultsits term and, if any, (iv) whether pursuant to any fee mortgages are in effect, (v) whether a right provision of first offer is in effect, (vi) the current adjusted amounts for dollar amounts in the Ground Lease and (vii) or otherwise, Beneficiary or its designee shall acquire from the amount landlord under the Ground Lease a new lease or other agreement for the use of the property covered by the Ground Lease, Grantor shall not have any security depositsright, title or interest in or to such new lease or other agreement or the estate created thereby.
(f) Subject Grantor shall not acquire the fee title to the terms and conditions any portion of the Mortgage Loan DocumentsGround Lease Property or make any election, Borrower shall cause Mortgage Borrower to promptly executegive any consent or approval or invoke any right of first refusal, acknowledge and deliver to Lender such instruments purchase option, put or call right as may be reasonably required to permit Lender to cure any default a tenant under the Ground Lease or permit Lender without obtaining Beneficiary's prior written consent thereto.
(g) Grantor shall from time to take such other action required to enable Lender to cure or remedy time upon the matter in default and preserve written request of Beneficiary request from the security interest of Lender landlord under the Loan Documents with respect to the Collateral. Subject to the terms and conditions of the Mortgage Loan Documents, Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, after the occurrence of an Event of Default for which Lender has accelerated the Loan, any and all acts and to execute any and all documents that are necessary to preserve any rights of Mortgage Borrower under or with respect to the Ground Lease, includingand use commercially reasonable efforts to deliver to Beneficiary, without limitationestoppel certificates from the landlord under the Ground Lease, in form and substance reasonably acceptable to Beneficiary.
(h) Grantor acknowledge that pursuant to Section 365 of the right to effectuate any extension or renewal Bankruptcy Code it is possible that a trustee in bankruptcy of the landlord under the Ground Lease, or to preserve any rights of Mortgage 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 such landlord as a debtor-in-possession, could reject the Ground Lease:
(i) The Lien of , in which case Grantor, as tenant, would have the Pledge Agreement attaches to all of Mortgage Borrower’s rights and remedies at any time arising under or pursuant to Subsection election described in Section 365(h) of the Bankruptcy Code, including, without limitation, all of Mortgage Borrower’s rightsCode (which election, as debtorthe same may be amended from time to time, and together with any comparable right under any other state or federal law relating to remain bankruptcy, reorganization or other relief for debtors, whether now or hereafter in possession of effect, is herein called the Property.
(ii"Election") Borrower shall not cause or permit Mortgage Borrower to, without Lender’s written consent, elect 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 nonbankruptcy law. Grantor shall not permit the termination of the Ground Lease by exercise of the Election or otherwise without the prior written consent of Beneficiary, which consent may be withheld, conditioned or delayed for any reason in Beneficiary's sole and absolute discretion. In order to secure the covenant made in this subsection 365(h)(land as security for the Indebtedness, Grantor assigns the Election and all rights related thereto to Beneficiary (for the benefit of Lenders). Grantor acknowledges and agrees that the foregoing assignment of the Election and related rights is one of the rights which Beneficiary may use at any time in order to protect and preserve the other rights and interests of Beneficiary and Lenders under this Agreement and the other Loan Documents, since exercise of the Election in favor of terminating the Ground Lease without Beneficiary's consent would constitute waste hereunder. Grantor 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 Ground Lease Property by Beneficiary (and shall not entitle Grantor to any credit against the Loans or other obligations under the Loan Documents). Grantor acknowledges and agrees that in the event the Election is exercised in favor of Grantor, Grantor's resulting rights under the Ground Lease, as adjusted by the effect of Section 365 of the Bankruptcy Code, shall then be subject to this Deed of Trust and the other Loan Documents.
(i) If there shall be filed by or against Grantor a petition under the Bankruptcy Code, and Grantor, as the tenant under the Ground Lease, shall determine to reject such Ground Lease pursuant to Section 365(a) of the Bankruptcy Code, then Grantor shall give Beneficiary not less than ten (10) days' prior notice of the date on which Grantor shall apply to the bankruptcy court for authority to reject the Ground Lease. Any Beneficiary shall have the right, but not the obligation, to serve upon Grantor within such election made without Lender’s prior written consent 10-day period a notice stating that (i) Lenders demand that Grantor assume and assign the Ground Lease to Beneficiary pursuant to Section 365 of the Bankruptcy Code and (ii) Beneficiary agrees to cure or provide adequate assurance of prompt cure of all defaults and provide adequate assurance of future performance under such the Ground Lease. If Beneficiary serves upon Grantor the notice described in the preceding sentence, Grantor 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 Beneficiary of the agreement provided for in clause (ii) of the preceding sentence.
(j) Effective upon the entry of an order for relief in respect of Grantor under the Bankruptcy Code, Grantor hereby assigns and transfers to Beneficiary 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 void.rejected or assumed. [signature page follows]
Appears in 1 contract
Ground Lease. (a) Borrower shall (or shall cause Mortgage Borrower to)shall, at its sole cost and expense, promptly and timely perform and observe all the material terms, covenants and conditions required to be performed and observed by Mortgage Borrower as lessee under the Ground Lease (including, but not limited towithout limitation, the payment of all rent, additional rent, percentage rent and other charges required to be paid under the Ground LeaseRents).
(b) Borrower shall enforce, in a commercially reasonable manner, any rights of Borrower and/or any obligations to be performed and observed by the Ground Lessor pursuant to the terms, covenants and conditions of the Ground Lease.
(c) Borrower shall promptly notify Lender of the receipt by Borrower of any notice (written or otherwise) from Ground Lessor claiming the occurrence of any default by Borrower under the Ground Lease. Promptly upon its receipt thereof, Borrower shall deliver to Lender a copy of any such written notice from Ground Lessor.
(d) Borrower shall promptly notify Lender of the occurrence of any default by Ground Lessor under the Ground Lease or the occurrence of any event that, with the giving of notice or passage of time, or both, would constitute a default by Ground Lessor under the Ground Lease. Concurrently with the giving of any notice to Ground Lessor claiming the occurrence of such default or event, Borrower shall deliver a copy thereof to Lender.
(e) If Mortgage Borrower shall be in default beyond all applicable notice and cure periods under the Ground Lease, then, subject to the terms of the Ground Lease, and the rights of Mortgage Lender under the Mortgage Loan Documents, Borrower (on behalf of itself and Mortgage Borrower) shall grant Lender the right (but not the obligation), ) to cause such the applicable default under the Ground Lease to be remedied and otherwise exercise any and all rights of Mortgage Borrower under the Ground Lease, Lease as may be reasonably necessary or desirable to prevent or cure any default such default; provided that such actions are are, in Lender’s good faith judgment, reasonably necessary to protect Lender’s interest under the Loan Documents, and . Lender shall have the right to enter all or any portion of the Property Property, upon reasonable notice to Borrower, at such times and in such manner as Lender deems reasonably necessary, to prevent or to cure any such default. If Ground Lessor shall deliver to Lender a copy of any notice of default sent by Ground Lessor to Borrower, subject such notice shall constitute full protection to the terms of the Ground LeaseLender for any action taken or not taken by Lender, in good faith, in reliance thereon.
(cf) Borrower shall promptly execute, acknowledge and deliver to Lender such instruments as may reasonably be necessary to permit Lender to cure any default under the Ground Lease or permit Lender to take such other action reasonably required to enable Lender to cure or remedy the matter in default and preserve Lender’s rights under the Loan Documents with respect to the Property (including, without limitation, the Lien of the Security Instrument and the other Loan Documents).
(g) The actions or payments of Lender to cure any default by Mortgage Borrower under the Ground Lease shall not remove cure or waive, as between Borrower and Lender, the default that occurred under this Agreement by virtue of the Borrower’s default by Mortgage Borrower under the Ground Lease. All sums expended costs and expenses incurred by Lender to cure or attempt to cure any such default shall be paid by Borrower or Mortgage Borrower to Lender, upon within thirty (30) days after demand, with interest on such sum at the then applicable Interest Default Rate from the date such sum is expended costs and expenses were incurred to and including the date the reimbursement payment is made to received by Lender. All such indebtedness shall be deemed to be secured by the Pledge AgreementSecurity Instrument.
(dh) Borrower shall (not, without prior consent of Lender, subordinate or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) notify Lender in writing consent to the subordination of the occurrence of any material default by Ground Lessor of which Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor or Operating Lessee has knowledge promptly after such Person becomes aware of the same, and the receipt by Mortgage Borrower of any notice from Ground Lessor under the Ground Lease claiming to any mortgage, security deed, lease or other interest on or in Ground Lessor’s interest in all or any part of the occurrence of any default by Mortgage Borrower under the Ground Lease. Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) promptly deliver to Lender a copy of any such written notice of defaultProperty.
(ei) Borrower shall exercise each 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.
(j) Within ten (10) days after receipt of written demand by Lender’s request, Borrower shall cause Mortgage Borrower to use reasonable efforts to obtain from Ground Lessor and furnish to Lender the an estoppel certificate of Ground Lessor stating (i) that the Ground Lease is unmodified and in full force and effect, (ii) the date through which rent Ground Rent has been paid, (iii) whether or not there are any defaults thereunder under the Ground Lease and specifying the nature of such claimed defaults, if any, (iv) whether any fee mortgages are in effect, (v) whether a right of first offer is in effect, (vi) the current adjusted amounts for dollar amounts in the Ground Lease and (vii) the amount of any security depositssuch other matters as Lender may reasonably request.
(fk) Subject to Without limiting the terms and conditions provisions of the Mortgage Loan Documents, Borrower shall cause Mortgage Borrower to promptly execute, acknowledge and deliver to Lender such instruments as may be reasonably 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 Collateral. Subject to the terms and conditions of the Mortgage Loan DocumentsSection 4.1.21 hereof, Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, after the occurrence of an Event of Default for which Lender has accelerated the Loan, any and all acts and to execute any and all documents that are necessary to preserve any rights of Mortgage 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 Mortgage 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).
(gl) Notwithstanding anything to the contrary contained in this Agreement with respect to the Ground Lease:
(i) The Lien of the Pledge Agreement Security Instrument attaches to all of Mortgage Borrower’s rights and remedies at any time arising under or pursuant to Subsection Section 365(h) of the U.S. Bankruptcy CodeCode or any other Bankruptcy Law, including, without limitation, all of Mortgage Borrower’s rights, as debtor, to remain in possession of the Property.
(ii) Borrower shall not cause or permit Mortgage Borrower tonot, without Lender’s written consent, elect to treat the Ground Lease as terminated under subsection Section 365(h)(l) of the U.S. Bankruptcy CodeCode or any other Bankruptcy Law. Any such election made without Lender’s prior written consent shall be null and void.
(iii) As security for the Obligations, Borrower unconditionally assigns, transfers and sets over to Lender all of Borrower’s rights and claims to the payment of damages arising from any rejection by Ground Lessor under the Bankruptcy Law. Borrower and Lender 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 Ground Lessor under the Bankruptcy Law. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing rights, claims, and remedies, and shall continue in effect until all of the Debt shall have been satisfied and discharged in full. Any amounts received by Borrower or Lender 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, reasonable attorneys’ fees and expenses) incurred in connection with the exercise of any of its rights or remedies in accordance with the applicable provisions of this Agreement.
(iv) If, pursuant to Section 365(h) of the U.S. Bankruptcy Code or any other Bankruptcy Law, Borrower seeks to offset, against the Ground Rent, the amount of any damages caused by the non-performance by Ground Lessor of any of its obligations under the Ground Lease after the rejection by Ground Lessor under the Bankruptcy Law, then Borrower shall not effect any offset of the amounts objected to by Lender. If Lender has failed to object as aforesaid within ten (10) days after notice from Borrower in accordance with the first sentence of this clause (iv), Borrower may proceed to offset the amounts set forth in Borrower’s notice to Ground Lessor and Lender.
(v) If any action, proceeding, motion or notice shall be commenced or filed in respect of Ground Lessor in connection with any case under the Bankruptcy Law, Borrower and Lender shall cooperatively conduct and control any such action, proceeding, motion or notice with counsel agreed upon between Borrower and Lender in connection with such action, proceeding, motion or notice. Borrower shall, upon demand, pay to Lender all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by Lender in connection with the cooperative prosecution or conduct of any such action, proceeding, motion or notice. All such costs and expenses shall be secured by the Lien of the Security Instrument.
(vi) Borrower shall promptly, after obtaining knowledge of such filing, notify Lender orally of any filing by or against Ground Lessor of a petition under the Bankruptcy Law. Borrower shall thereafter promptly give written notice of such filing to Lender, setting forth any information available to Borrower as to the date of such filing, the court in which such petition was filed, and the relief sought in such filing. Borrower shall promptly deliver to Lender any and all notices, summonses, pleadings, applications and other documents received by Borrower in connection with any such petition and any proceedings relating to such petition.
(vii) The Ground Lease may not be canceled, terminated, surrendered or amended without the prior consent of Lender, which consent may be withheld in Lender’s sole and absolute discretion.
Appears in 1 contract
Ground Lease. (a) Borrower shall (or shall cause Mortgage Borrower to)shall, at its sole cost and expense, promptly and timely perform and observe all the material terms, covenants and conditions required to be performed and observed by Mortgage Borrower as lessee under the Ground Lease (including, but not limited to, the payment of all rent, additional rent, percentage rent and other charges required to be paid under the Ground Lease).
(b) If Mortgage Borrower shall be in default beyond all applicable notice and cure periods under the Ground Lease, then, subject to the terms of the Ground Lease, and the rights of Mortgage Lender under the Mortgage Loan Documents, Borrower (on behalf of itself and Mortgage Borrower) shall grant Lender the right (but not the obligation), to cause such the default or defaults under the Ground Lease to be remedied and otherwise exercise any and all rights of Mortgage 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 under the Loan Documents, and Lender shall have the right to enter all or any portion of the Ground Lease Property at such times and in such manner as Lender deems reasonably necessary, to prevent or to cure any such default, subject to the terms of the Ground Lease.
(c) The actions or payments of Lender to cure any default by Mortgage Borrower under the Ground Lease shall not remove or waive, as between Borrower and Lender, the default that occurred under this Agreement by virtue of the default by Mortgage Borrower under the Ground Lease. All sums expended by Lender to cure any such default shall be paid by Borrower or Mortgage Borrower to Lender, upon demand, with interest on such sum at the then applicable Interest Rate rate set forth in this Agreement from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the Pledge AgreementMortgage.
(d) Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) notify Lender promptly in writing of the occurrence of any material default by Ground Lessor of which Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor or Operating Lessee has knowledge promptly after such Person becomes aware of the same, and the receipt by Mortgage Borrower of any notice from Ground Lessor 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 material default by 94 the Ground Lessor under the Ground Lease, and the receipt by Borrower of any notice (written or otherwise) from the Ground Lessor under the Ground Lease noting or claiming the occurrence of any default by Mortgage 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 (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) promptly deliver to Lender a copy of any such written notice of default.
(e) Within ten (10) days after receipt of written demand by Lender, Borrower shall cause Mortgage Borrower to use reasonable efforts to obtain from the Ground Lessor under the Ground Lease and furnish to Lender the estoppel certificate of the Ground Lessor stating (i) that the Ground Lease is unmodified and in full force and effect, (ii) the date through which rent has been paid, (iii) paid and whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any, (iv) whether any fee mortgages are in effect, (v) whether a right of first offer is in effect, (vi) the current adjusted amounts for dollar amounts in the Ground Lease and (vii) the amount of any security deposits.
(f) Subject to the terms and conditions of the Mortgage Loan Documents, Borrower shall cause Mortgage Borrower to promptly execute, acknowledge and deliver to Lender such instruments as may reasonably be reasonably 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 CollateralGround Lease Property. Subject to the terms and conditions of the Mortgage Loan Documents, Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, after the occurrence of an Event of Default for which Lender has accelerated the Loan, any and all acts and to execute any and all documents that are necessary to preserve any rights of Mortgage 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 Mortgage 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 lien of the Pledge Agreement Mortgage attaches to all of Mortgage Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including, without limitation, all of Mortgage Borrower’s rights, as debtor, to remain in possession of the related Ground Lease Property.
(ii) Borrower shall not cause or permit Mortgage Borrower tonot, 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 Ground 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 Ground Lessor under the Bankruptcy Code. This assignment constitutes a 95 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 rights or remedies in accordance with the applicable provisions of this Agreement.
(iv) If, pursuant to subsection 365(h) of the Bankruptcy Code, Borrower seeks to offset, against the rent reserved in the Ground Lease, the amount of any damages caused by the nonperformance by Ground Lessor of any of its obligations thereunder after the rejection by Ground Lessor of the Ground Lease under the Bankruptcy Code, then Borrower shall not effect any offset of the amounts so objected to by Lender. If Lender has failed to object as aforesaid within ten (10) days after notice from Borrower in accordance with the first sentence of this subsection, Borrower may proceed to offset the amounts set forth in Borrower’s notice.
(v) If any action, proceeding, motion or notice shall be commenced or filed in respect of Ground Lessor of all or any part of the 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 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 Ground Lessor under the Ground Lease of a petition under the Bankruptcy Code. Borrower shall thereafter promptly give written notice of such filing to Lender, setting forth any information available to Borrower as to the date of such filing, the court in which such petition was filed, and the relief sought in such filing. Borrower shall promptly deliver to Lender any and all notices, summonses, pleadings, applications and other documents received by Borrower in connection with any such petition and any proceedings relating to such petition.
Appears in 1 contract
Ground Lease. (a) Borrower shall (or shall cause Mortgage hereby covenants with Lender the following with respect to each Ground Lease:
a. Ground Lease Borrower to)shall, at its sole cost and expense, promptly and timely perform and observe all the material terms, covenants and conditions required to be performed and observed by Mortgage Ground Lease Borrower as lessee under the Ground Lease (including, but not limited to, the payment of all rent, additional rent, percentage rent and other charges required to be paid under the Ground Lease).
(b) b. If Mortgage Ground Lease Borrower shall be in default beyond all applicable notice and cure periods under the Ground Lease, then, subject to the terms of the then Ground Lease, and the rights of Mortgage Lender under the Mortgage Loan Documents, Lease Borrower (on behalf of itself and Mortgage Borrower) shall grant Lender the right (but not the obligation), to cause such the default -69- or defaults under the Ground Lease to be remedied and otherwise exercise any and all rights of Mortgage 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 under the Loan Documentsdefault, and Lender shall have the right to enter all or any portion of the applicable Individual Property at such times and in such manner as Lender deems reasonably necessary, to prevent or to cure any such default, subject to the terms of the Ground Lease.
(c) c. The actions or payments of Lender to cure any default by Mortgage Ground Lease Borrower under the Ground Lease shall not remove or waive, as between Borrower and Lender, the default that occurred under this Agreement by virtue of the default by Mortgage Borrower under the Ground Lease. All sums expended by Lender to cure any such default shall be paid by Borrower or Mortgage Borrower to Lender, upon demand, with interest on such sum at the then applicable Interest Rate rate set forth in this Agreement from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the Pledge AgreementMortgage.
(d) d. Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) notify Lender promptly in writing of the occurrence of any material default by Ground Lessor of which Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor or Operating Lessee has knowledge promptly after such Person becomes aware of the same, and the receipt by Mortgage Borrower of any notice from Ground Lessor 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 material default by the Ground Lessor under the Ground Lease, and the receipt by Ground Lease Borrower of any notice (written or otherwise) from the Ground Lessor under the Ground Lease noting or claiming the occurrence of any default by Mortgage 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 Ground Lease Borrower under the Ground Lease. Ground Lease Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) promptly deliver to Lender a copy of any such written notice of default.
(e) Within ten (10) days after receipt of written demand by e. Upon request from Lender, which request shall not occur more frequently than one (1) time per each calendar year (unless an Event of Default shall be continuing), Ground Lease Borrower shall cause Mortgage Borrower to use commercially reasonable efforts to promptly obtain from the Ground Lessor under the Ground Lease and furnish to Lender the an estoppel certificate of such Ground Lessor stating (i) that the Ground Lease is unmodified and in full force and effect, (ii) the date through which rent has been paid, (iii) whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any, (iv) whether any fee mortgages are in effect, (v) whether a right of first offer is in effect, (vi) the current adjusted amounts for dollar amounts in the Ground Lease and (vii) the amount of any security deposits.
(f) Subject to the terms and conditions of the Mortgage Loan Documents, f. Borrower shall cause Mortgage Borrower to promptly execute, acknowledge and deliver to Lender such instruments as may reasonably be reasonably 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 Collateralapplicable Individual Property. Subject to the terms and conditions of the Mortgage Loan Documents, Borrower hereby irrevocably appoints Lender as its true and lawful attorney-in-fact attorney‑in‑fact to do, in its name or otherwise, after the occurrence of an Event of Default for which Lender has accelerated the Loan, any and all acts and to execute any and all documents in accordance with the Loan Agreement that are necessary to preserve any rights of Mortgage Ground Lease 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 Mortgage Ground Lease 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) g. Notwithstanding anything to the contrary contained in this Agreement or the other Loan Documents with respect to the Ground Lease:
(i) The Lien of the Pledge Agreement applicable Mortgage attaches to all of Mortgage Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including, without limitation, all of Mortgage Ground Lease Borrower’s rights, as debtor, to remain in possession of the related Individual Property.
(ii) Ground Lease Borrower shall not cause or permit Mortgage Borrower tonot, 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, Ground Lease Borrower unconditionally assigns, transfers and sets over to Lender all of Ground Lease Borrower’s claims and rights to the payment of damages arising from any rejection by the Ground Lessor under the Ground Lease under the Bankruptcy Code. Lender and Ground Lease Borrower shall proceed jointly or in the name of Ground Lease 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 Debt shall have been satisfied and discharged in full. Any amounts received by Lender or Ground Lease 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 rights or remedies in accordance with the applicable provisions of this Agreement.
(iv) If, pursuant to subsection 365(h) of the Bankruptcy Code, Ground Lease Borrower seeks to offset, against the rent reserved in the Ground Lease, the amount of any damages caused by the nonperformance by the Ground Lessor of any of its obligations thereunder after the rejection by Ground Lessor of the Ground Lease under the Bankruptcy Code, then Ground Lease Borrower shall not affect any offset of the amounts so objected to by Lender.
(v) If any action, proceeding, motion or notice shall be commenced or filed in respect of any Ground Lessor of all or any part of the applicable Individual Property in connection with any case under the Bankruptcy Code, Lender and Ground Lease Borrower shall cooperatively conduct and control any such litigation with counsel agreed upon between Ground Lease 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 secured by the Lien of the related Mortgage.
(vi) Ground Lease Borrower shall promptly, after obtaining knowledge of such filing notify Lender orally of any such filing by or against the Ground Lessor under the Ground Lease of a petition under the Bankruptcy Code. Ground Lease Borrower shall thereafter promptly give written notice of such filing to Lender, setting forth any information -71- available to Ground Lease Borrower as to the date of such filing, the court in which such petition was filed, and the relief sought in such filing. Ground Lease Borrower shall promptly deliver to Lender any and all notices, summonses, pleadings, applications and other documents received by Ground Lease Borrower in connection with any such petition and any proceedings relating to such petition.
h. Subject to clause (k) below, Ground Lease Borrower shall not, without Lender’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed, fail to exercise any option or right to renew or extend the term of the Ground Lease in accordance with the terms of the Ground Lease, and shall give immediate written notice to Lender and shall execute, acknowledge, deliver and record any document reasonably requested by Lender to evidence the Lien of the applicable Mortgage on such extended or renewed lease term. If Ground Lease Borrower shall fail to exercise any such option or right as aforesaid, Lender may exercise the option or right as Ground Lease Borrower’s agent and attorney in fact as provided above in Lender’s own name or in the name of and on behalf of a nominee of Lender, as Lender may determine in the exercise of its sole and absolute discretion.
i. Ground Lease Borrower shall not waive, excuse, condone or in any way release or discharge the Ground Lessor under the Ground Lease of or from such Ground Lessor’s material obligations, covenant and/or conditions under the Ground Lease without the prior written consent of Lender.
j. Subject to clause (k) below, Ground Lease 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 the Ground 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 Lessor’s interest in the Ground Lease by Ground Lease Borrower or any Affiliate of Ground Lease Borrower shall be accomplished by Ground Lease Borrower in such a manner so as to avoid a merger of the interests of Ground Lessor and lessee in the Ground Lease, unless consent to such merger is granted by Lender.
k. Notwithstanding the foregoing to the contrary, Lender acknowledges and agrees that if the tax benefits under the Ground Lease expire and there is no benefit to maintaining the Ground Lease, or if Borrower exercises its option pursuant to Section 9.11 hereof, Borrower may, following notice to Lender, exercise its purchase option to acquire the fee interests in the Property and terminate (or choose to not extend the term of) the Ground Lease. In connection with the foregoing, Borrower shall comply with the provisions set forth in Section 17.4 of the applicable Mortgage (and if applicable, Section 9.11 hereof).
Appears in 1 contract
Sources: Loan Agreement (Griffin Capital Essential Asset REIT, Inc.)
Ground Lease. (a) Borrower shall (or shall cause Mortgage Borrower to)shall, at its sole cost and expense, promptly and timely perform and observe all the material terms, covenants and conditions required to be performed and observed by Mortgage Borrower as lessee under the Ground Lease (including, but not limited to, the payment of all rent, additional rent, percentage rent and other charges required to be paid under the Ground Lease).
(b) If Mortgage Borrower shall be in default beyond all applicable notice and cure periods under the Ground Lease, then, subject to the terms of the Ground Lease, and the rights of Mortgage Lender under the Mortgage Loan Documents, Borrower (on behalf of itself and Mortgage Borrower) shall grant Lender the right (but not the obligation), to cause such the default or defaults under the Ground Lease to be remedied and otherwise exercise any and all rights of Mortgage 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 under the Loan Documents, and Lender shall have the right to enter all or any portion of the Ground Lease Property at such times and in such manner as Lender deems reasonably necessary, to prevent or to cure any such default, subject to the terms of the Ground Lease.
(c) The actions or payments of Lender to cure any default by Mortgage Borrower under the Ground Lease shall not remove or waive, as between Borrower and Lender, the default that occurred under this Agreement by virtue of the default by Mortgage Borrower under the Ground Lease. All sums expended by Lender to cure any such default shall be paid by Borrower or Mortgage Borrower to Lender, upon demand, with interest on such sum at the then applicable Interest Rate rate set forth in this Agreement from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the Pledge AgreementMortgage.
(d) Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) notify Lender promptly in writing of the occurrence of any material default by Ground Lessor of which Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor or Operating Lessee has knowledge promptly after such Person becomes aware of the same, and the receipt by Mortgage Borrower of any notice from Ground Lessor 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 material default by the Ground Lessor under the Ground Lease, and the receipt by Borrower of any notice (written or otherwise) from the Ground Lessor under the Ground Lease noting or claiming the occurrence of any default by Mortgage 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 (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) promptly deliver to Lender a copy of any such written notice of default.
(e) Within ten (10) days after receipt of written demand by Lender, Borrower shall cause Mortgage Borrower to use reasonable efforts to obtain from the Ground Lessor under the Ground Lease and furnish to Lender the estoppel certificate of the Ground Lessor stating (i) that the Ground Lease is unmodified and in full force and effect, (ii) the date through which rent has been paid, (iii) paid and whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any, (iv) whether any fee mortgages are in effect, (v) whether a right of first offer is in effect, (vi) the current adjusted amounts for dollar amounts in the Ground Lease and (vii) the amount of any security deposits.
(f) Subject to the terms and conditions of the Mortgage Loan Documents, Borrower shall cause Mortgage Borrower to promptly execute, acknowledge and deliver to Lender such instruments as may reasonably be reasonably 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 CollateralGround Lease Property. Subject to the terms and conditions of the Mortgage Loan Documents, Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, after the occurrence of an Event of Default for which Lender has accelerated the Loan, any and all acts and to execute any and all documents that are necessary to preserve any rights of Mortgage 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 Mortgage 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 lien of the Pledge Agreement Mortgage attaches to all of Mortgage Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including, without limitation, all of Mortgage Borrower’s rights, as debtor, to remain in possession of the related Ground Lease Property.
(ii) Borrower shall not cause or permit Mortgage Borrower tonot, 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 Ground 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 Ground Lessor under the Bankruptcy Code. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until all of the Debt shall have been satisfied and discharged in full. Any amounts received by Lender or Borrower as damages arising out of the rejection of the Ground Lease as aforesaid shall be 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 rights or remedies in accordance with the applicable provisions of this Agreement.
(iv) If, pursuant to subsection 365(h) of the Bankruptcy Code, Borrower seeks to offset, against the rent reserved in the Ground Lease, the amount of any damages caused by the nonperformance by Ground Lessor of any of its obligations thereunder after the rejection by Ground Lessor of the Ground Lease under the Bankruptcy Code, then Borrower shall not effect any offset of the amounts so objected to by Lender. If Lender has failed to object as aforesaid within ten (10) days after notice from Borrower in accordance with the first sentence of this subsection, Borrower may proceed to offset the amounts set forth in Borrower’s notice.
(v) If any action, proceeding, motion or notice shall be commenced or filed in respect of Ground Lessor of all or any part of the 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 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 Ground Lessor under the Ground Lease of a petition under the Bankruptcy Code. Borrower shall thereafter promptly give written notice of such filing to Lender, setting forth any information available to Borrower as to the date of such filing, the court in which such petition was filed, and the relief sought in such filing. Borrower shall promptly deliver to Lender any and all notices, summonses, pleadings, applications and other documents received by Borrower in connection with any such petition and any proceedings relating to such petition.
Appears in 1 contract
Ground Lease. Borrower shall cause Senior Borrower to comply with the following provisions:
(a) Ground Lease Senior Borrower shall (not, without L▇▇▇▇▇’s written consent as set forth below, fail to exercise any option or shall cause Mortgage Borrower to), at its sole cost and expense, promptly and timely perform and observe all right to renew or extend the material terms, covenants and conditions required to be performed and observed by Mortgage Borrower as lessee under the Ground Lease (including, but not limited to, the payment of all rent, additional rent, percentage rent and other charges required to be paid under the Ground Lease).
(b) If Mortgage Borrower shall be in default beyond all applicable notice and cure periods under the Ground Lease, then, subject to the terms term of the Ground Lease, and shall give prompt written notice to L▇▇▇▇▇ 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 so long as the same does not increase Borrower’s obligations or decrease Borrower’s rights of Mortgage Lender under hereunder to more than a de minimis extent; provided, however, such Individual Borrower shall not be required to exercise any particular such option or right to renew or extend to the Mortgage Loan Documents, Borrower (on behalf of itself and Mortgage Borrower) shall grant Lender the right (but not the obligation), to cause such default under the extent Ground Lease Senior Borrower shall have received the prior written consent of Lender (which consent may not be unreasonably withheld, delayed or conditioned) allowing Ground Lease Senior Borrower to be remedied and otherwise forego exercising such option or right to renew or extend. If Ground Lease Senior Borrower shall fail to exercise any and all rights of Mortgage Borrower under such option or right as aforesaid prior to the date required for such exercise in the Ground Lease, as may be necessary to prevent or cure any default provided such actions are necessary to protect Lender’s interest under the Loan Documents, and Lender shall have the right to enter all or any portion of the Property at such times and in such manner as Lender deems reasonably necessary, to prevent or to cure any such defaultmay, subject to the terms rights of Senior Lender under the Senior Loan Documents, exercise the option or right as Ground LeaseLease Borrower’s agent and attorney-in-fact as provided above in Lender’s own name or in the name of and on behalf of a nominee of Lender, as Lender may determine in the exercise of its reasonable discretion.
(cb) The actions or payments of Lender to cure any default by Mortgage Borrower under the Ground Lease Senior Borrower shall not remove or waive, as between Borrower and Lenderexcuse, the default that occurred under this Agreement by virtue of the default by Mortgage Borrower under the Ground Lease. All sums expended by Lender to cure or in release or discharge any such default shall be paid by Borrower or Mortgage Borrower to Lender, upon demand, with interest on such sum at the then applicable Interest Rate from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the Pledge Agreement.
(d) Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) notify Lender in writing of the occurrence of any material default by Ground Lessor of which Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor or Operating Lessee has knowledge promptly after such Person becomes aware of the same, and the receipt by Mortgage Borrower of any notice from Ground Lessor under the Ground Lease claiming the occurrence of any default by Mortgage Borrower under the or from such Ground Lease. Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) promptly deliver to Lender a copy of any such written notice of default.
(e) Within ten (10) days after receipt of written demand by LenderLessor’s material obligations, Borrower shall cause Mortgage Borrower to use reasonable efforts to obtain from Ground Lessor and furnish to Lender the estoppel certificate of Ground Lessor stating (i) that the Ground Lease is unmodified and in full force and effect, (ii) the date through which rent has been paid, (iii) whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any, (iv) whether any fee mortgages are in effect, (v) whether a right of first offer is in effect, (vi) the current adjusted amounts for dollar amounts in the Ground Lease and (vii) the amount of any security deposits.
(f) Subject to the terms and covenant and/or conditions of the Mortgage Loan Documents, Borrower shall cause Mortgage Borrower to promptly execute, acknowledge and deliver to Lender such instruments as may be reasonably required to permit Lender to cure any default under the Ground Lease without the prior written consent of Lender.
(c) Ground Lease Senior Borrower shall not, without L▇▇▇▇▇’s prior written consent, surrender, terminate, forfeit, or suffer or permit Lender to take such other action required to enable Lender to cure the surrender, termination or remedy the matter in default and preserve the security interest of Lender under the Loan Documents with respect to the Collateral. Subject to the terms and conditions of the Mortgage Loan Documentsforfeiture of, Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to door change, in its name modify or otherwise, after the occurrence of an Event of Default for which Lender has accelerated the Loan, amend any and all acts and to execute any and all documents that are necessary to preserve any rights of Mortgage Borrower under or with respect to the Ground Lease, including, without limitation, the right to effectuate any extension or renewal material term of the Ground Lease, or to preserve any rights of Mortgage Borrower whatsoever in respect of any part other than an expiration of the Ground Lease (and pursuant to its terms. Consent to one amendment, change, agreement or modification shall not be deemed to be a waiver of the above powers granted right to Lender are coupled with an require consent to other, future or successive amendments, changes, agreements or modifications. Any acquisition of Ground Lessor’s interest and in any Ground Lease by Ground Lease Senior Borrower or any Affiliate of Ground Lease Borrower shall be irrevocable).
(g) Notwithstanding anything accomplished by Ground Lease Senior Borrower in such a manner so as to avoid a merger of the contrary contained interests of lessor and lessee in this Agreement with respect to the such Ground Lease:
(i) The Lien of the Pledge Agreement attaches , unless consent to all of Mortgage Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including, without limitation, all of Mortgage Borrower’s rights, as debtor, to remain in possession of the Propertysuch merger is granted by Lender.
(ii) Borrower shall not cause or permit Mortgage Borrower to, 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.
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