Ground Lease. (a) Borrower 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 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 Borrower shall be in default under the Ground Lease, then, subject to the terms of the Ground Lease, Borrower shall grant Lender the right (but not the obligation), to cause the default or defaults under the Ground Lease to be remedied and otherwise exercise any and all rights of Borrower under the Ground Lease, as may be necessary to prevent or cure any default provided such actions are necessary to protect Lender’s interest 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 necessary, to prevent or to cure any such default. (c) The actions or payments of Lender to cure any default by 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 Borrower under the Ground Lease. All sums expended by Lender to cure any such default shall be paid by Borrower to Lender, upon demand, with interest on such sum at the rate set forth in this Agreement from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the Mortgage. (d) Borrower shall notify Lender promptly in writing of the occurrence of any material default by the 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 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 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 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 the date through which rent has been paid and whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any. (f) Borrower shall promptly execute, acknowledge and deliver to Lender such instruments as may reasonably be required to permit Lender to cure any default under the Ground Lease or permit Lender to take such other action required to enable Lender to cure or remedy the matter in default and preserve the security interest of Lender under the Loan Documents with respect to the Ground Lease Property. Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, any and all acts and to execute any and all documents that are necessary to preserve any rights of Borrower under or with respect to the Ground Lease, including, without limitation, the right to effectuate any extension or renewal of the Ground Lease, or to preserve any rights of Borrower whatsoever in respect of any part of the Ground Lease (and the above powers granted to Lender are coupled with an interest and shall be irrevocable). (g) Notwithstanding anything to the contrary contained in this Agreement with respect to the Ground Lease: (i) The lien of the Mortgage attaches to all of Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including, without limitation, all of Borrower’s rights, as debtor, to remain in possession of the related Ground Lease Property. (ii) Borrower shall not, without Lender’s written consent, elect to treat the Ground Lease as terminated under subsection 365(h)(l) of the Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void. (iii) As security for the Debt, Borrower unconditionally assigns, transfers and sets over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by the 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, 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 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 Borrower shall be in default under the Ground Lease, then, subject to the terms of the Ground Lease, Borrower shall grant Lender the right (but not the obligation), to cause the default or defaults under the Ground Lease to be remedied and otherwise exercise any and all rights of Borrower under the Ground Lease, as may be necessary to prevent or cure any default provided such actions are necessary to protect Lender’s interest 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 necessary, to prevent or to cure any such default.
(c) The actions or payments of Lender to cure any default by 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 Borrower under the Ground Lease. All sums expended by Lender to cure any such default shall be paid by Borrower to Lender, upon demand, with interest on such sum at the rate set forth in this Agreement from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the Mortgage.
(d) Borrower shall notify Lender promptly in writing of the occurrence of any material default by the 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 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 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 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 the date through which rent has been paid and whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any.
(f) Borrower shall promptly execute, acknowledge and deliver to Lender such instruments as may reasonably be required to permit Lender to cure any default under the Ground Lease or permit Lender to take such other action required to enable Lender to cure or remedy the matter in default and preserve the security interest of Lender under the Loan Documents with respect to the Ground Lease Property. Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, any and all acts and to execute any and all documents that are necessary to preserve any rights of Borrower under or with respect to the Ground Lease, including, without limitation, the right to effectuate any extension or renewal of the Ground Lease, or to preserve any rights of Borrower whatsoever in respect of any part of the Ground Lease (and the above powers granted to Lender are coupled with an interest and shall be irrevocable).
(g) Notwithstanding anything to the contrary contained in this Agreement with respect to the Ground Lease:
(i) The lien of the Mortgage attaches to all of Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including, without limitation, all of Borrower’s rights, as debtor, to remain in possession of the related Ground Lease Property.
(ii) Borrower shall not, without Lender’s written consent, elect to treat the Ground Lease as terminated under subsection 365(h)(l) of the Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(iii) As security for the Debt, Borrower unconditionally assigns, transfers and sets over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by the 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. With respect to each Ground Lease, Borrower agrees as follows:
(a) Borrower shallshall perform all obligations of the tenant under each Ground Lease and under any statute, ordinance, rule or regulation relating to each Ground Lease, and shall not cause or permit any breach thereof, and shall enforce the obligations of the landlord under each Ground Lease to the end that Borrower may enjoy all the rights granted under each Ground Lease. If Borrower shall default under any Ground Lease or if Lender shall receive notice of any default under any Ground Lease, Lender may, at its sole cost option but without any obligation to do so, take any action necessary or desirable to cure any such default, Lender being authorized to enter upon the Property for such purposes with or without notice and expensewithout becoming a mortgagee in possession. Borrower shall, promptly and timely perform and observe within thirty (30) days of demand (or upon demand if an Event of Default has occurred), pay to Lender all costs of Lender incurred in curing any such default, together with interest on such costs from the material termsdate of expenditure until said sums have been paid, covenants and conditions required to be performed and observed by Borrower as lessee under at 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)Default Rate.
(b) If Borrower shall give prompt notice to Lender of any default by any party under any Ground Lease (which shall include, but not be limited to, copies of any default notices sent or received under any Ground Lease or received by Borrower), and shall give prompt notice (and in default under any event within five (5) Business Days after becoming aware of the same) to Lender of (i) any litigation or arbitration with respect to any Ground Lease, thenor (ii) any action or proceeding to terminate, subject foreclose or otherwise enforce any Ground Lease or to the terms recover possession of the Ground Lease, Borrower shall grant Lender the right (but not the obligation), to cause the default or defaults under the Ground Lease to be remedied and otherwise exercise any and all rights of Borrower under the Ground Lease, as may be necessary to prevent or cure any default provided such actions are necessary to protect Lender’s interest under the Loan Documents, and Lender shall have the right to enter all Property or any portion thereof. Borrower shall furnish to Lender all information that it may reasonably request concerning the performance by Borrower of the Borrower’s obligations under each Ground Lease Property at such times and in such manner as Lender deems necessary, to prevent or to cure any such defaultLease.
(c) The actions or payments of Lender to cure any default by Borrower under acknowledges and agrees that 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 Borrower under the Ground Lease. All sums expended by Lender to cure any such default shall be paid by Borrower to Lender, upon demand, with interest on such sum at the rate set forth in this Agreement from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness provisions hereof shall be deemed to be secured by obligations of Borrower in addition to Borrower’s obligations as tenant under each Ground Lease; provided, however, the Mortgageinclusion herein of any obligations relating to similar matters as to which Borrower is obligated under each Ground Lease shall not restrict or limit Borrower’s obligations to perform promptly all of its obligations as tenant under each Ground Lease.
(d) Borrower shall notify Lender promptly in writing acknowledges and agrees that (i) it has no present intent, without the written consent of Lender, to effect or consent to any merger of any Ground Lease or of the occurrence leasehold estate or other estate created thereby, with the fee estate in the property covered by such Ground Lease by reason of any material default by the Ground Lessor under the fact that such Ground Lease or the occurrence leasehold estate created thereby, may be held directly or indirectly by or for the account of any event thatperson or entity who or which also holds the fee estate in such property, and (ii) Borrower will take no action to effect or consent to such a merger except with Lender’s prior written consent. If Borrower acquires any other estate, title or interest in the passage of time or service of notice, or both, would constitute a material default property covered by 94 the Ground Lessor under the any Ground Lease, the Loan Documents shall attach to and be a lien upon such other estate so acquired, and such other estate shall, without further assignment, mortgage or conveyance, become and remain subject to the receipt lien of and covered 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 Borrower under the Ground Lease or the occurrence of any event thatMortgage. Promptly upon becoming aware thereof, with the passage of time or service of notice, or both, would constitute a default by Borrower under the Ground Lease. Borrower shall promptly deliver to notify Lender a copy of any such acquisition by Borrower and, on written notice request by Lender, shall cause to be executed and recorded all such documents and instruments as may in the reasonable opinion of defaultLender be required to carry out the intent and meaning hereof.
(e) Within ten Borrower acknowledges and agrees that no termination or surrender by Borrower under any Ground Lease shall be valid or effective without Lender’s prior written consent. The terms of any Ground Lease may not be modified, amended, supplemented, waived or released, or terminated, without the prior written consent of Lender. Lender agrees that it shall not unreasonably withhold, condition or delay its consent to any proposed amendment or modification of any Ground Lease which is requested by Borrower so long as (10i) days after receipt no Event of written demand by Default exists, (ii) such amendment or modification does not amend or modify the Loan Documents or limit or otherwise adversely affect Lender’s liens, Borrower shall use reasonable efforts to obtain from the Ground Lessor rights, protection and claims under the other Loan Documents or the priority, validity or enforceability thereof, (iii) each Ground Lease continues to cover and furnish relate to Lender the estoppel certificate of Property and no other property, and (iv) such amendment or modification would not, in Lender’s reasonable judgment, have a material adverse effect on the Ground Lessor stating the date through which rent has been paid and whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if anyCollateral.
(f) Borrower shall promptly executeacknowledges and agrees that if any Ground Lease is for any reason whatsoever terminated prior to the expiration of its term and, acknowledge and deliver if pursuant to Lender such instruments as may reasonably be required to permit Lender to cure any default under the provision of any Ground Lease or permit otherwise, Lender to take such other action required to enable Lender to cure or remedy its designee shall acquire from the matter in default and preserve the security interest of Lender landlord under the Loan Documents with respect to the any Ground Lease Property. Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name a new lease or otherwise, any and all acts and to execute any and all documents that are necessary to preserve any rights other agreement for the use of Borrower under or with respect to the property covered by such Ground Lease, includingBorrower shall have no right, without limitation, the right to effectuate any extension title or renewal of the Ground Lease, interest in or to preserve any rights of Borrower whatsoever in respect of any part of such new lease or other agreement or the Ground Lease (and the above powers granted to Lender are coupled with an interest and shall be irrevocable)estate created thereby.
(g) Notwithstanding anything to the contrary contained in this Agreement with respect to the Ground Lease:
(i) The lien of the Mortgage attaches to all of Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including, without limitation, all of Borrower’s rights, as debtor, to remain in possession of the related Ground Lease Property.
(ii) Borrower shall not, without Lender’s from time to time upon the written consent, elect to treat the Ground Lease as terminated under subsection 365(h)(l) request 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. cooperate with Lender and Borrower shall proceed jointly or in the name of Borrower in respect of any claim, suit, action or proceeding relating use its commercially reasonable efforts 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 estoppel certificates from the landlord under each Ground Lease in form and all notices, summonses, pleadings, applications and other documents received by Borrower in connection with any such petition and any proceedings relating substance acceptable to such petitionLender.
Appears in 1 contract
Ground Lease. (a) Borrower 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 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 Borrower shall be in default under the Ground Lease, then, subject to the terms of the Ground Lease, Borrower shall grant Lender the right (but not the obligation), ) to cause the applicable default or defaults under the Ground Lease to be remedied and otherwise exercise any and all rights of 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 Ground Lease Property Property, upon reasonable notice to Borrower, at such times and in such manner as Lender deems necessary, to prevent or to cure any such default.
(c) The actions or payments of Lender to cure any default by 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 Borrower under the Ground Lease. All sums expended by Lender to cure any such default shall be paid by Borrower to Lender, upon demand, with interest on such sum at the rate set forth in this Agreement from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the Mortgage.
(d) Borrower shall notify Lender promptly in writing of the occurrence of any material default by the If 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 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 promptly deliver to Lender a copy of any such written notice of default.
(e) Within ten (10) days after receipt of written demand default sent by Ground Lessor to Borrower, such notice shall constitute full protection to Lender for any action taken or not taken by Lender, Borrower shall 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 the date through which rent has been paid and whether or not there are any defaults thereunder and specifying the nature of such claimed defaultsin good faith, if anyin reliance thereon.
(f) Borrower shall promptly execute, acknowledge and deliver to Lender such instruments as may reasonably be required 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 the security interest of Lender 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 Borrower under the Ground Lease shall not cure or waive, as between Borrower and Lender, the default that occurred under this Agreement by virtue of Borrower’s default under the Ground Lease. All costs and expenses incurred by Lender to cure or attempt to cure any such default shall be paid by Borrower to Lender, within thirty (30) days after demand, with interest at the Default Rate from the date such costs and expenses were incurred to and including the date the reimbursement payment is received by Lender. All such indebtedness shall be secured by the Security Instrument.
(h) Borrower shall not, without prior consent of Lender, subordinate or consent to the subordination of the Ground Lease to any mortgage, security deed, lease or other interest on or in Ground Lessor’s interest in all or any part of the Property. .
(i) 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 Lender’s request, Borrower shall use reasonable efforts to obtain from Ground Lessor and furnish to Lender an estoppel certificate of Ground Lessor stating the date through which Ground Rent has been paid, whether or not there are any defaults under the Ground Lease and specifying the nature of such claimed defaults, if any, and such other matters as Lender may reasonably request.
(k) Without limiting the terms and provisions of Section 4.1.21 hereof, Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, any and all acts and to execute any and all documents that are necessary to preserve any rights of Borrower under or with respect to the Ground Lease, including, without limitation, the right to effectuate any extension or renewal of the Ground Lease, or to preserve any rights of Borrower whatsoever in respect of any part of the Ground Lease (and the above powers granted to Lender are coupled with an interest and shall be irrevocable).
(gl) Notwithstanding anything to the contrary contained in this Agreement with respect to the Ground Lease:
(i) The lien Lien of the Mortgage Security Instrument attaches to all of 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 Borrower’s rights, as debtor, to remain in possession of the related Ground Lease Property.
(ii) Borrower shall not, 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 DebtObligations, Borrower unconditionally assigns, transfers and sets over to Lender all of Borrower’s rights and claims and rights to the payment of damages arising from any rejection by the Ground Lessor under the Ground Lease under the Bankruptcy CodeLaw. Borrower and 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 CodeLaw. This assignment constitutes a 95 present, irrevocable and unconditional assignment of the foregoing rights, 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 Borrower or 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 reasonable attorneys’ fees and costsexpenses) 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 Section 365(h) of the U.S. Bankruptcy CodeCode or any other Bankruptcy Law, Borrower seeks to offset, against the rent reserved in the Ground LeaseRent, the amount of any damages caused by the nonperformance non-performance by Ground Lessor of any of its obligations thereunder under the Ground Lease after the rejection by Ground Lessor of the Ground Lease under the Bankruptcy CodeLaw, 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 subsectionclause (iv), Borrower may proceed to offset the amounts set forth in Borrower’s noticenotice to Ground Lessor and Lender.
(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 CodeLaw, Borrower and Lender and Borrower shall cooperatively conduct and control any such litigation action, proceeding, motion or notice with counsel agreed upon between Borrower and Lender in connection with such litigationaction, proceeding, motion or notice. Borrower shall, upon demand, pay to Lender all costs and expenses (including reasonable attorneys’ fees and costsexpenses) actually paid or actually incurred by Lender in connection with the cooperative prosecution or conduct of any such proceedingsaction, proceeding, motion or notice. All such costs and expenses shall be secured by the lien Lien of the related MortgageSecurity Instrument.
(vi) Borrower shall promptly, after obtaining knowledge of such filing filing, notify Lender orally of any filing by or against Ground Lessor under the Ground Lease of a petition under the Bankruptcy CodeLaw. 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 shallTower Company covenants that it shall not commit any act which would result in a default, 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 Borrower as lessee under non-renewal or 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 Borrower beyond any applicable notice or grace period. The SLA shall be in default under subject to the continued existence and 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, Borrower without the prior written consent of Carrier, shall grant Lender be construed as an event of default under the right terms of the SLA.
(but not b) In the obligation), to cause the default or defaults under event that the Ground Lease 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 remedied and otherwise exercise any and all rights of Borrower under the Ground Leaseunreasonably withheld, as may be necessary to prevent delayed 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 necessary, to prevent or to cure any such defaultconditioned.
(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 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 Borrower under the Ground Lease. All sums expended by Lender to cure Lease beyond any such default shall be paid by Borrower to Lender, upon demand, with interest on such sum at the rate set forth in this Agreement from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the Mortgageapplicable notice or grace period.
(d) Borrower shall notify Lender promptly in writing of the occurrence of any material default by Tower Company agrees to use reasonable efforts to deliver a nondisturbance and attornment agreement with the Ground Lessor for Carrier's continued possession of the Premises under the applicable SLA and/or the assumption and/or assignment of the Ground Lease or to Carrier in 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 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 that Tower Company elects to terminate the Ground Lease. Borrower shall 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 use reasonable efforts to obtain from Carrier acknowledges and agrees that the Ground Lessor under the Ground Lease and furnish to Lender the estoppel certificate language provided in paragraph 5 of the Ground Lessor stating Estoppel Certificate attached hereto as Attachment III will be sufficient to comply with the date through which rent has been paid and whether or requirements of this provision. This provision shall not there are any defaults thereunder and specifying the nature of such claimed defaults, if any.
(f) Borrower shall promptly execute, acknowledge and deliver to Lender such instruments as may reasonably be required to permit Lender to cure any default under the Ground Lease or permit Lender to take such other action required to enable Lender to cure or remedy the matter in default and preserve the security interest of Lender under the Loan Documents with respect imply that Carrier consents to the Ground Lease Property. Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name expiration or otherwise, any and all acts and to execute any and all documents that are necessary to preserve any rights of Borrower under or with respect to the Ground Lease, including, without limitation, the right to effectuate any extension or renewal of the Ground Lease, or to preserve any rights of Borrower whatsoever in respect of any part termination of the Ground Lease (and the above powers granted to Lender are coupled with an interest and shall be irrevocable)by Tower Company.
(g) Notwithstanding anything to the contrary contained in this Agreement with respect to the Ground Lease:
(i) The lien of the Mortgage attaches to all of Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including, without limitation, all of Borrower’s rights, as debtor, to remain in possession of the related Ground Lease Property.
(ii) Borrower shall not, without Lender’s written consent, elect to treat the Ground Lease as terminated under subsection 365(h)(l) of the Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(iii) As security for the Debt, Borrower unconditionally assigns, transfers and sets over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by the 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
Sources: Master Build to Suit and Lease Agreement (Tritel Finance Inc)
Ground Lease. With respect to the Ground Lease, Grantor agrees as follows:
(a) Borrower shall, at its sole cost and expense, promptly and timely Grantor shall perform and observe all obligations of the material terms, covenants and conditions required to be performed and observed by 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).
(b) . If Borrower Grantor shall be in default under the Ground Lease, then, subject to the terms or if Beneficiary shall receive notice of the Ground Lease, Borrower shall grant Lender the right (but not the obligation), to cause the any default or defaults under the Ground Lease to be remedied and otherwise exercise any and all rights of Borrower under the Ground Lease, as 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) Grantor shall promptly (and in 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 of default under the Ground Lease that is received, or sent, by Grantor.
(c) Grantor acknowledges and agrees that there shall, without the written consent of Beneficiary, be no merger of 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, 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 necessary, to prevent or to cure any such default.
(c) The actions or payments of Lender to cure any default the exercise by 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 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 subject to Lender, upon demand, with interest on such sum at the rate set forth restrictions contained 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 MortgageLoan Agreement).
(d) Borrower shall notify Lender promptly in writing of the occurrence of any material default Grantor acknowledges and agrees that no termination or surrender by the Ground Lessor Grantor under the Ground Lease to any landlord thereunder shall be valid or effective. The terms of the Ground Lease may not be modified, amended, supplemented, waived or released, or terminated or subordinated to any mortgage, agreement, lease or other interest, either orally or in writing, without the prior written consent of Beneficiary.
(e) Grantor acknowledges and agrees 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, Beneficiary or its designee shall acquire from the 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 right, title or interest in or to such new lease or other agreement or the occurrence estate created thereby.
(f) Grantor shall not acquire the fee title to any portion 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 Lease Property or make any election, give any consent or approval or invoke any right of first refusal, purchase option, put or call right as a tenant under the Ground Lease without obtaining Beneficiary's prior written consent thereto.
(g) Grantor shall from time to time upon the written request of Beneficiary request from the landlord under the Ground Lease, and the receipt by Borrower of any notice (written or otherwise) use commercially reasonable efforts to deliver to Beneficiary, estoppel certificates from the Ground Lessor under the Ground Lease noting or claiming the occurrence of any default by Borrower under the Ground Lease or the occurrence of any event that, with the passage of time or service of notice, or both, would constitute a default by Borrower landlord under the Ground Lease. Borrower shall promptly deliver , in form and substance reasonably acceptable to Lender a copy of any such written notice of defaultBeneficiary.
(eh) Within ten (10) days after receipt of written demand by Lender, Borrower shall use reasonable efforts Grantor acknowledge that pursuant to obtain from the Ground Lessor under the Ground Lease and furnish to Lender the estoppel certificate Section 365 of the Ground Lessor stating Bankruptcy Code it is possible that a trustee in bankruptcy of the date through which rent has been paid and whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any.
(f) Borrower shall promptly execute, acknowledge and deliver to Lender such instruments as may reasonably be required to permit Lender to cure any default landlord under the Ground Lease or permit Lender to take such other action required to enable Lender to cure or remedy the matter in default and preserve the security interest of Lender under the Loan Documents with respect to the Ground Lease Property. Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, any and all acts and to execute any and all documents that are necessary to preserve any rights of Borrower under or with respect to the Ground Lease, including, without limitation, the right to effectuate any extension or renewal of the Ground Lease, or to preserve any rights of Borrower whatsoever in respect of any part of the Ground Lease (and the above powers granted to Lender are coupled with an interest and shall be irrevocable).
(g) Notwithstanding anything to the contrary contained in this Agreement with respect to 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 Mortgage attaches to all of 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 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 related Ground Lease Property.
(ii"Election") Borrower shall not, without Lender’s written consent, elect to treat the Ground Lease as terminated under subsection 365(h)(l) by such rejection or, in the alternative, to remain in possession for the balance 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 term of the Ground Lease, includingand 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 and 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 limitation, Beneficiary's consent would constitute waste hereunder. Grantor agrees that exercise of the Election in favor of preserving the right to file possession under the Ground Lease shall not be deemed to constitute a taking or sale of the Ground Lease Property by Beneficiary (and prosecute shall not entitle Grantor to any proofs 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 claimGrantor, complaintsGrantor's resulting rights under the Ground Lease, motionsas adjusted by the effect of Section 365 of the Bankruptcy Code, applications, notices shall then be subject to this Deed of Trust and the other documents in any case in respect of Ground Lessor Loan Documents.
(i) If there shall be filed by or against Grantor a petition 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 Grantor, as 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 tenant under the Ground Lease, shall determine to reject such 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(hSection 365(a) of the Bankruptcy Code, Borrower seeks then Grantor shall give Beneficiary not less than ten (10) days' prior notice of the date on which Grantor shall apply to offset, against the rent reserved in bankruptcy court for authority to reject the Ground Lease. Beneficiary shall have the right, but not 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 obligation, to serve upon Grantor within such 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, then Borrower shall not effect any offset Grantor hereby assigns and transfers to Beneficiary a non-exclusive right to apply to the bankruptcy court under Section 365(d)(4) 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 Bankruptcy Code for an order extending 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 period during which the Ground Lease of a petition under the Bankruptcy Codemay be rejected or assumed. 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.[signature page follows]
Appears in 1 contract
Ground Lease. Borrower hereby represents and warrants to Lender the following with respect to each Ground Lease:
(a) The Ground Lease or a memorandum of such Ground Lease has been duly recorded. Each Ground Lease or the related Ground Lease Estoppel permits the interest of Borrower shall, at its sole cost and expense, promptly and timely perform and observe all the material terms, covenants and conditions required to be performed encumbered by the Fee and observed Leasehold Deed of Trust and does not restrict the use of the related Ground Lease Property by Borrower as lessee under Borrower, or its successors or assigns, in a manner that would adversely affect the security provided by the Fee and Leasehold Deed of Trust. There have not been any amendments or modifications to the terms of any Ground Lease since the recordation of such Ground Lease (includingor a memorandum thereof), but not limited to, with the payment exception of all rent, additional rent, percentage rent and other charges required to be paid under the Ground Lease)written instruments which have been recorded or as disclosed in this Agreement.
(b) If Borrower shall be Each Ground Lessor has agreed, in default under the Ground Lease, then, subject to the terms of the Ground Lease, Borrower shall grant Lender the right (but not the obligation), to cause the default or defaults under the its Ground Lease to or the related Ground Lease Estoppel that the related Ground Lease may not be remedied and otherwise exercise any and all rights of Borrower under the Ground Leaseamended, as may be necessary to prevent modified, canceled or cure any default provided such actions are necessary to protect terminated without Lender’s interest under the Loan Documentsprior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, 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 necessary, to prevent or to cure that any such defaultaction without such consent is not binding on Lender, or its successors or assigns.
(c) The actions Each Ground Lease has a term which extends not less than twenty (20) years beyond the Maturity Date.
(d) Except for the Permitted Encumbrances and the related Ground Lessor’s fee interest in the related Ground Lease Property, no Ground Lease is subject to any interests, estates, Liens or payments encumbrances superior to, or of equal priority with, the Fee and Leasehold Deed of Trust.
(e) Borrower’s interest in each Ground Lease is assignable to Lender upon notice to, but without the consent of, the applicable Ground Lessor (or, if any such consent is required, it has been obtained prior to cure the Closing Date). Each Ground Lease is further assignable by Lender, and its successors and assigns, without the consent of the applicable Ground Lessor. No consent of the applicable Ground Lessor is required with respect to any transfer of direct or indirect interests in Borrower.
(f) As of the date hereof, each Ground Lease is in full force and effect and no material default has occurred under any Ground Lease that is continuing and there is no existing condition which, but for the passage of time or the giving of notice, could result in a default under the terms of any Ground Lease.
(g) Each Ground Lease or the related Ground Lease Estoppel requires the applicable Ground Lessor to give written notice of any default by 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 Borrower under the Ground Lease. All sums expended by Lender to cure any such default shall be paid by Borrower to Lender, upon demand, with interest on such sum at and provides that any notice of default or termination given under the rate set forth in this Agreement from the date such sum Ground Lease 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 Mortgage.
(d) Borrower shall notify not effective against Lender promptly in writing unless a copy of the occurrence of any material default by the Ground Lessor notice has been delivered to Lender as required 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 related Ground Lease noting Estoppel.
(h) Each Ground Lease or claiming the occurrence related Ground Lease Estoppel provides that Lender is permitted the opportunity (including, where necessary, sufficient time to gain possession of any default by the interest of 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 promptly deliver to Lender a copy of any such written notice of default.
(ethrough legal proceedings) Within ten (10) days after receipt of written demand by Lender, Borrower shall 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 the date through which rent has been paid and whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any.
(f) Borrower shall promptly execute, acknowledge and deliver to Lender such instruments as may reasonably be required to permit Lender to cure any default under such Ground Lease, which is curable after Lender’s receipt of notice of the default before the applicable Ground Lease or permit Lender to take such other action required to enable Lender to cure or remedy the matter in default and preserve the security interest of Lender under the Loan Documents with respect to the Ground Lease Property. Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, any and all acts and to execute any and all documents that are necessary to preserve any rights of Borrower under or with respect to Lessor may terminate the Ground Lease, including, without limitation, the right to effectuate any extension or renewal of the Ground Lease, or to preserve any rights of Borrower whatsoever in respect of any part of the Ground Lease (and the above powers granted to Lender are coupled with an interest and shall be irrevocable).
(g) Notwithstanding anything to the contrary contained in this Agreement with respect to the Ground Lease:
(i) The lien None of the Mortgage attaches to all of Borrower’s rights and remedies at Ground Leases imposes any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including, without limitation, all of Borrower’s rights, as debtor, to remain in possession of restrictions on subleasing the related Ground Lease Property.
(iij) Borrower shall notUnder the terms of each Ground Lease, without Lender’s written consent, elect to treat the related Ground Lease Estoppel and the Loan Documents, taken together, any related insurance and condemnation proceeds applicable to the related Ground Lease Property (other than in respect of a total or substantially total loss or taking) will be applied either to the repair or restoration of all or part of such Ground Lease Property (so long as terminated under subsection 365(h)(l) such proceeds are in excess of the Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(iii) As security for threshold amount specified in the DebtLoan Documents), Borrower unconditionally assignswith Lender having the right to hold and disburse the proceeds as the repair or restoration progresses, transfers and sets over to Lender all of Borrower’s claims and rights or to the payment of damages arising from the outstanding principal balance of the Loan together with any rejection by accrued interest thereon.
(k) Under the terms of each Ground Lessor under Lease, the related Ground Lease under Estoppel and the Bankruptcy Code. Lender Loan Documents, taken together, any related insurance and Borrower shall proceed jointly or in condemnation proceeds applicable to the name of Borrower related Ground Lease Property in respect of any claim, suit, action a total or proceeding relating substantially total loss or taking of the related Ground Lease Property to the rejection extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Loan, together with any accrued interest thereon.
(l) Each Ground Lease, including, without limitation, Lease or the right to file and prosecute any proofs of claim, complaints, motions, applications, notices and other documents in any case in respect of related Ground Lease Estoppel requires the applicable Ground Lessor under the Bankruptcy Code. This assignment constitutes to enter into 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 new lease with Lender or Borrower as damages arising out of the rejection upon termination of the Ground Lease as aforesaid shall be applied to all costs and expenses of Lender (includingfor any reason, 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) including rejection of the Bankruptcy Code, Borrower seeks to offset, against the rent reserved ground lease 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 noticea bankruptcy proceeding.
(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
Sources: Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)
Ground Lease. (a) Borrower shallWith 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 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 Borrower Trustor shall be in default under the Ground Lease, thenor 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 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, Borrower shall grant Lender the right (but not the obligation), to cause the default or defaults under the Ground Lease to be remedied and otherwise exercise any and all rights of Borrower under the Ground Lease, as may be necessary to prevent or cure any default provided such actions are necessary to protect Lender’s interest 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 necessary, to prevent or to cure any such default.
(c) The actions or payments of Lender to cure any default by 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 Borrower under the Ground Lease. All sums expended by Lender to cure any such default shall be paid by Borrower to Lender, upon demand, with interest on such sum at the rate set forth in this Agreement from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the Mortgage.
(d) Borrower shall notify Lender promptly in writing of the occurrence of any material default by the 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 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 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 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 the date through which rent has been paid and whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any.
(f) Borrower shall promptly execute, acknowledge and deliver to Lender such instruments as may reasonably be required to permit Lender to cure any default under the Ground Lease or permit Lender to take such other action required to enable Lender to cure or remedy the matter in default and preserve the security interest of Lender under the Loan Documents with respect to the Ground Lease Property. Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, any and all acts and to execute any and all documents that are necessary to preserve any rights of Borrower under or with respect to the Ground Lease, including, without limitation, the right to effectuate any extension or renewal of the Ground Lease, or to preserve any rights of Borrower whatsoever in respect of any part of the Ground Lease (and the above powers granted to Lender are coupled with an interest and shall be irrevocable).
(g) Notwithstanding anything to the contrary contained in this Agreement with respect to the Ground Lease:
(i) The lien of the Mortgage attaches to all of Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including, without limitation, all of Borrower’s rights, as debtor, to remain in possession of the related Ground Lease Property.
(ii) Borrower shall not, without Lender’s written consent, elect to treat the Ground Lease as terminated under subsection 365(h)(l) of the Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(iii) As security for the Debt, Borrower unconditionally assigns, transfers and sets over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by the 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
Sources: Leasehold Deed of Trust (Inland Western Retail Real Estate Trust Inc)
Ground Lease. (a) Borrower shallshall (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 the such 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 rate set forth in this Agreement 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 MortgagePledge Agreement.
(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 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 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 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 and 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 be required to permit Lender to cure any default under the Ground Lease or permit Lender to take such other action required to enable Lender to cure or remedy the matter in default and preserve the security interest of Lender under the Loan Documents with respect to the Ground Lease PropertyCollateral. 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 Mortgage 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 related Ground Lease Property.
(ii) Borrower shall notnot 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.
(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 hereby covenants with Lender the following with respect to each Ground Lease:
a. Ground Lease Borrower 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 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 Ground Lease Borrower shall be in default under the Ground Lease, then, subject to the terms of the then Ground Lease, Lease Borrower shall grant Lender the right (but not the obligation), to cause the default -69- or defaults under the Ground Lease to be remedied and otherwise exercise any and all rights of Borrower under the Ground Lease, as may be necessary to prevent or cure any default provided such actions are necessary to protect Lender’s interest under the Loan Documentsdefault, and Lender shall have the right to enter all or any portion of the Ground Lease applicable Individual Property at such times and in such manner as Lender deems reasonably necessary, to prevent or to cure any such default.
(c) c. The actions or payments of Lender to cure any default by 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 Borrower under the Ground Lease. All sums expended by Lender to cure any such default shall be paid by Borrower to Lender, upon demand, with interest on such sum at the rate set forth in this Agreement from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the Mortgage.
(d) d. Borrower shall notify Lender promptly in writing of the occurrence of any material default by the 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 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 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 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 use commercially reasonable efforts to promptly obtain from the Ground Lessor under the Ground Lease and furnish to Lender the an estoppel certificate of the such Ground Lessor stating the date through which rent has been paid and whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any.
(f) f. Borrower shall promptly execute, acknowledge and deliver to Lender such instruments as may reasonably be required to permit Lender to cure any default under the Ground Lease or permit Lender to take such other action required to enable Lender to cure or remedy the matter in default and preserve the security interest of Lender under the Loan Documents with respect to the Ground Lease applicable Individual Property. Borrower hereby irrevocably appoints Lender as its true and lawful attorney-in-fact attorney‑in‑fact to do, in its name or otherwise, 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 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 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 Lien of the applicable Mortgage attaches to all of Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including, without limitation, all of Ground Lease Borrower’s rights, as debtor, to remain in possession of the related Ground Lease Individual Property.
(ii) Ground Lease Borrower shall not, without Lender’s written consent, elect to treat the Ground Lease as terminated under subsection 365(h)(l) of the Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(iii) As security for the Debt, 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 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 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 effect affect 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 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 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) El Con Borrower 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 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 El Con Borrower shall be in default in any material respect under the Ground Lease, then, subject to the terms of the Ground Lease, El Con Borrower shall grant Lender the right (but not the obligation), to cause the such default or defaults under the Ground Lease to be remedied and otherwise exercise any and all rights of 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 Ground Lease applicable Individual Property at such times and in such manner as Lender deems necessary, to prevent or to cure any such default.
(c) The actions or payments of Lender to cure any default by 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 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 El Con Borrower to Lender, upon demand, with interest on such sum at the rate set forth in this Agreement from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the related Mortgage.
(d) El Con Borrower shall notify Lender promptly in writing after obtaining knowledge thereof of the occurrence of any material default by the Ground Lessor 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 lessor under the Ground Lease, and the receipt by El Con Borrower of any notice (written or otherwise) from the Ground Lessor lessor under the Ground Lease noting or claiming the occurrence of any default by 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 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 use reasonable efforts to obtain from the Ground Lessor lessor under the Ground Lease and furnish to Lender the estoppel certificate of the Ground Lessor such lessor stating the date through which rent has been 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.
(f) El Con Borrower shall promptly execute, acknowledge and deliver to Lender such instruments as may reasonably be 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 leasehold estate under the Ground Lease PropertyLease. Upon the occurrence and during the continuance of an Event of Default, El Con Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, any and all acts and to execute any and all documents that are necessary to preserve any rights of 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 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 of the related Mortgage attaches to all of 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 El Con Borrower’s rights, as debtor, to remain in possession of the related Ground Lease applicable Individual Property.
(ii) El Con Borrower shall not, without Lender’s written consent, elect to treat the Ground Lease as terminated under subsection 365(h)(l) of the Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(iii) As security for the Debt, 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 Ground Lessor 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 Ground Lessor 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 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 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 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 Ground Lessor the lessor of any of its obligations thereunder after the rejection by Ground Lessor 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 Ground Lessor 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 Ground Lessor 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.
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