Leases. (a) Notwithstanding anything to the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option. (b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder. (c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of Mortgagee. (d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease). (e) For purposes of this Mortgage, the following terms shall have the following meanings:
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Leases. (a) Notwithstanding anything Lender hereby approves the Master Lease. Each Lease entered into after the date hereof shall be subject to the contrary hereinprior written approval of Lender; provided, Mortgagor shall not however, that so long as no Event of Default is continuing, Borrower may permit or allow Master Tenant to enter into any Lease a sublease which meets the Approved Sublease Parameters without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee Lender. Borrower shall pay the actual, out-of-pocket costs and expenses associated with Lender or its counsel’s review of any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee Lease for which Lender’s consent may declare each Lease to be prior or subordinate to required under this Mortgage, at Mortgagee’s optionSection 5.7.
(b) Mortgagor shallBorrower shall not, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; shall not permit the prepayment of any rents Property Owner or other payments due for more than one (1) month Master Tenant to, orally or in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Leasewriting, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of MortgageeLender, alter, supplement, amend, modify or waive the terms or provisions of, renew, terminate, reduce rents or accept a surrender of space under, extend or shorten the term of, or enter into a sublease or a subordination, nondisturbance and attornment agreement in connection with, any Lease (other than a sublease meeting the Approved Sublease Parameters) or the premises demised thereby (including any guaranty, letter of credit or other credit support with respect thereto); provided, however, that Borrower may permit Master Tenant to terminate a Lease subject to compliance with Section 5.7(i) below in connection with the decision to have the applicable Property become a Dark Property. Any amendment, modification, waiver, termination, assignment, pledge, release, hypothecation, rent reduction, space surrender or term shortening of any Lease (other than a sublease meeting the Approved Sublease Parameters) shall be subject to the prior written approval of Lender (each, a “Lease Modification”), and shall be at Borrower’s sole cost and expense. In addition, Borrower shall not permit Property Owner to, without the prior consent of Lender, surrender any interest of Property Owner in the Master Lease and if Property Owner shall default in the performance or observance of any term, covenant or condition of the Master Lease on the part of Property Owner and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Master Lease on the part of Property Owner to be performed or observed on behalf of Property Owner, to the end that the rights of Property Owner in, to and under the Master Lease shall be kept unimpaired and free from default. Notwithstanding anything to the contrary contained herein, at any time Property Owner has any right to consent to any item under the Master Lease or the space demised thereby, Borrower shall not take, or permit Property Owner to take, such action without the prior written consent of Lender (other than with respect to a sublease meeting the Approved Sublease Parameters). If Borrower, Property Owner or Master Tenant shall deliver to Lender a copy of any notice of default under the Master Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon.
(c) Borrower shall, and shall cause Property Owner and Master Tenant to, (i) observe and punctually perform all the material obligations imposed upon the lessor under the Leases; (ii) enforce all of the material terms, covenants and conditions contained in the Leases on the part of the lessee thereunder to be observed or performed, short of termination thereof except that Borrower may permit Property Owner and/or Master Tenant to terminate any Lease (other than the Master Lease) following a monetary or material non-monetary default thereunder by the respective Tenant which default has not been cured within thirty (30) days after the occurrence thereof; (iii) not collect any of the rents thereunder more than one month in advance; (iv) not execute any assignment of lessor’s interest in the Leases or associated rents other than the assignments of rents and leases under the Mortgages; (v) not cancel or terminate any guarantee of any of the Leases without the prior written consent of Lender other than as may be required pursuant to the terms thereof or in connection with the termination of the applicable Lease to which such guarantee relates; and (vi) other than with respect to a sublease meeting the Approved Sublease Parameters, provided no Event of Default is continuing, not permit any subletting of any space covered by a Lease or an assignment of the Tenant’s rights under a Lease, without the prior written consent of Lender, not to be unreasonably withheld, unless required by the terms of such Lease. Borrower shall cause Property Owner or Master Tenant to, deliver to each new Tenant a Tenant Notice (as defined in, and to the extent required under, the Mortgage Loan Agreement) upon execution of such Tenant’s Lease, and promptly thereafter deliver to Lender a copy thereof and evidence of such Tenant’s receipt thereof.
(d) If Mortgagor fails Security deposits of Tenants under all Leases shall be held in compliance with Legal Requirements and any provisions in Leases relating thereto. Borrower shall cause Property Owner and/or Master Tenant to, maintain books and records of sufficient detail to perform identify all security deposits of Tenants separate and apart from any obligations other payments received from Tenants. Subject to Legal Requirement, any letter of Mortgagor under any Lease credit, bond or other instrument held by Property Owner or Mater Tenant in lieu of cash security shall name Mortgage Lender (or if Mortgagee becomes aware the Mortgage Loan has been repaid in full, Lender) as payee or mortgagee thereunder or be fully assignable to Lender. Borrower hereby pledges to Lender each such letter of credit, bond or is notified by any other instrument as security for the Indebtedness. Upon the occurrence of an Event of Default, Borrower shall cause Property Owner and/or Master Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving upon Lender’s request, deposit with Mortgage Lender (or releasing Mortgagor from if the Mortgage Loan has been repaid in full, Lender) in an Eligible Account pledged to Mortgage Lender (or if the Mortgage Loan has been repaid in full, Lender) an amount equal to the aggregate security deposit of the Tenants (and any Obligation, remedy interest theretofore earned on such failuresecurity deposits and actually received by Property Owner or Master Tenant), and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failureletters of credit, together bonds or other instruments that Property Owner or Master Tenant have not returned to the applicable Tenants or applied in accordance with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess terms of the one month LIBOR Rate applicable Lease (as set forth and defined in the Bond Leasefailure to do so shall constitute a misappropriation of funds pursuant to Section 9.19(b)).
(e) For purposes Borrower shall, and shall cause Property Owner or Master Tenant to, promptly deliver to Lender a copy of this Mortgageeach written notice from a Tenant under any Lease claiming that Property Owner or Master Tenant is in default in the performance or observance of any of the material terms, covenants or conditions thereof to be performed or observed by Property Owner or Master Tenant. Borrower shall cause Property Owner and Master Tenant to use commercially reasonable efforts to provide in each Lease executed after the following terms Closing Date to which Property Owner or Master Tenant is a party that any Tenant delivering any such notice shall have send a copy of such notice directly to Lender.
(f) Borrower shall cause Property Owner and Master Tenant to, cause the following meanings:Properties to be operated, in all material respects, in accordance with the Master Lease.
(g) Borrower shall cause Property Owner and Master Tenant to: (i) promptly perform and/or observe, in all material respects, all of the covenants and agreements required to be performed and observed by it under the Master Lease and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (ii) promptly notify Lender of any material default under the Master Lease of which it is aware; (iii) promptly deliver to Lender a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate received by it under the Master Lease; and (iv) enforce the performance and observance, in all material respects, of all of the covenants and agreements required to be performed and/or observed under the Master Lease, in a commercially reasonable manner.
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Leases. Lender has approved all of the Major eases identified on Exhibit A. Borrower shall submit to Lender for its written approval a pro forma schedule setting forth Borrower's projections regarding leasing of the individual tenant spaces within the Improvements including, without limitation, "effective" rental rate, triple net (ai.e., exclusive of all expenses, taxes, insurance, common area or other reimbursements or recoveries) Notwithstanding anything or gross rents, tenant improvement allowances, lease term, and "free rent" or rent deferral periods ("Pro Forma Schedule"). All new leases and tenants of the Improvements shall be subject to Lender's written approval prior to execution of any such lease. For purposes hereof, an "Approved Lease" shall mean a lease fully executed by the tenant thereunder and Borrower on Borrower's current standard form lease for the Project, as approved by Lender, and meeting the following criteria (except as may be specifically approved otherwise by Lender):
7.3.1 the minimum overall average "effective" rental rate over the term of the lease shall be not less than the amount set forth in the Pro Forma Schedule, on a triple net or gross rents basis as set forth in the Pro Forma Schedule;
7.3.2 the lease term shall be for at least the minimum term set forth in the Pro Forma Schedule;
7.3.3 any "free rent" period or other rent deferral period provided for in the lease shall not exceed the maximum period or amount set forth in the Pro Forma Schedule;
7.3.4 any material modifications to the contrary herein, Mortgagor approved standard form lease shall not enter into any Lease without Mortgagee’s prior written consent, and be subject to the approval of Lender; and
7.3.5 Lender shall furnish to Mortgagee, upon execution, a complete and fully executed copy have approved the financial statements of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereundertenant, which approval shall be in the sole discretion of Lender. Mortgagee In addition, Lender may declare each Lease require additional financial information concerning the proposed tenant to be prior or subordinate to this Mortgageprovided, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment which shall include a minimum of any rents or other payments due for more than one (1) month year's operating statements. Borrower shall deliver all proposed leases to Lender for review and approval prior to execution. Proposed leases shall be delivered to Lender, Attention: Real Estate Loan Department, or to such specific individual as may designated in advance; writing by Lender. Lender shall approve or disapprove any lease so submitted by Borrower within ten (10) working days after Lender's receipt thereof. Failure by Lender to approve or disapprove a lease within said ten (10) day period shall be deemed an approval of said lease. Borrower shall use its best and not permit any Tenant diligent efforts to assign its Lease or sublet lease all of the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shallProject, in accordance with the ordinary course standards for Approved Leases set forth above, and to keep the Project fully leased under leases complying with such standards. Borrower shall fully and faithfully perform each and every covenant, agreement, or obligation of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations lessor under the Lease or terminate or accept a surrender any and all leases covering any portion of the Lease without Project. Upon the prior written consent request of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of Lender, Borrower shall provide Lender with a failure on current rent roll supplying the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess name of the one month LIBOR Rate (lessee and the net monthly rental for each space and such other information as set forth and defined in the Bond Lease)Lender may request.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
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Leases. (a) Each applicable Obligor shall furnish Lender with executed copies of all Major Leases, together with a detailed breakdown of income and cost associated therewith. A new Lease which is not a Major Lease, and a renewal or amendment of a Lease which is not a Major Lease, and any termination of, or surrender of rights under, a Lease which is not a Major Lease, shall not require Lender's approval, provided that, in the case of the execution of a new Lease that is not a Major Lease or amendment or renewal of a Lease which is not a Major Lease, (i) the rent and other amounts payable thereunder, based upon the location of the demised premises, the type of property, and the tenant improvements, allowances or concessions to be made or provided by the landlord thereunder (taken as a whole) are "market" rate and (ii) the proposed terms thereof (taken as a whole) are Commercially Reasonable. Any Lease that does not satisfy the requirements set forth in the preceding sentence, and all new Leases which are Major Leases, and all terminations, renewals and amendments of Major Leases, and any surrender of rights under any Major Lease which results in a reduction of the rent payable thereunder, may be entered into only with the prior written consent of Lender, which consent shall not be unreasonably withheld, delayed or qualified. Additionally, Lender's approval shall not be required for the extension, renewal or other amendment of a Lease that is not a Major Lease if such extension, renewal or other amendment is at a rental rate required pursuant to the terms of such Tenant's existing Lease and the other terms of such extended, renewed or modified Lease are, taken as a whole, substantially the same as or better than those contained in such Tenant's existing Lease. All new Leases shall provide that they are subject and subordinate to any current or future mortgage financing on the applicable Property and that the Tenant agrees to attorn to any foreclosing mortgagee at such mortgagee's request; provided that Lender will enter into subordination, nondisturbance and attornment agreements with any Tenant, if required to do so pursuant to such Tenant's Lease, on Lender's standard form of subordination, nondisturbance and attornment agreement attached hereto as Exhibit J, subject to such changes as Lender shall approve in its reasonable discretion.
(b) Notwithstanding anything to the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consentcontained in this Section 5.8, and in addition thereto, Lender agrees that Lender's consent shall furnish be given with respect to Mortgageea proposed Major Lease if (i) the rent and other amounts payable under such proposed Major Lease based upon the location of the demised premises, upon executionthe type of property, a complete the tenant improvements, allowances and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease concessions to be prior made or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed provided by the landlord under each Lease; not borrow againstsuch proposed Major Lease (taken as a whole) is at "market" rates, pledge or further assign any rents or other payments due thereunder; not permit and (ii) the prepayment proposed terms of such proposed Major Lease (taken as a whole) are Commercially Reasonable. In addition, Lender's approval of any rents extension or other payments due for more than one renewal of a Major Lease (1) month in advance; and not permit any Tenant to assign its whether such extension or renewal is by way of a modification of a Tenant's existing Lease or sublet by way of a new Lease with such Tenant) shall not be required if such extension or renewal is required pursuant to the premises covered by its terms of such Tenant's existing Lease and the other terms of such extended or renewed Lease are, taken as a whole, substantially the same or better than those contained in such Tenant's existing Lease, unless and Lender's approval of any amendment of a Major Lease shall not be required if such amendment is required pursuant to do so the terms of such Major Lease. Furthermore, Lender's approval of any termination of any Major Lease shall not be required following a material default thereunder by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunderrespective Tenant.
(c) If any Tenant shall default under its Any proposed new Major Lease, Mortgagor shalland any proposed terminations, renewals, amendments of a Major Lease or any other Lease amendment or matter which requires Lender's approval under this Section 5.8, which is submitted to Lender together with a summary of the economic terms thereof and any termination options contained therein or, with respect to a proposed termination, a description of the reason therefor and any proposed subordination, non-disturbance and attornment agreement, shall be deemed approved by Lender if (i) Lender shall not have notified the applicable Obligor in writing of its disapproval and the reasons therefor within 10 Business Days after such submission (provided, however, that if Lender requests additional information during such 10-Business Day period, then such period shall be extended through the 5th Business Day following Lender's receipt of such additional information), and (ii) such submission explicitly and prominently refers to the 10-day deemed approval requirement. For any such disapproval to be effective, it shall be accompanied by a written statement in reasonable detail describing the basis for such disapproval and, if relevant to Lender's disapproval, the suggested modifications, if any, which if adopted would render such proposed Major Lease, lease amendment, subordination, non-disturbance and attornment agreement or other matter acceptable to Lender.
(d) Each Obligor shall (i) deliver to each new Tenant a Tenant Notice upon execution of such Tenant's Lease, and promptly thereafter deliver to Lender evidence of such Tenant's receipt thereof; (ii) observe and perform all the material obligations imposed upon the lessor under the Leases, the Material Agreements and the Permitted Bond Debt in a commercially reasonable manner; (iii) enforce all of the material terms, covenants and conditions contained in the Leases on the part of the lessee thereunder to be observed or performed except to the extent the enforcement thereof is not, in the ordinary course reasonable judgment of businesssuch Obligor, exercise sound business judgment with respect in the best interests of the applicable Property; (iv) not seek to such default, but may collect any of the rents thereunder more than one month in advance; (v) not discount, compromise, forgive execute any assignment of lessor's interest in the Leases or waive claims or discharge associated rents other than the Tenant from its obligations under the Lease Assignment of Leases; and (vi) not cancel or terminate or accept a surrender any guarantee of any of the Lease Major Leases without the prior written consent of Mortgagee.
Lender, not to be unreasonably withheld, delayed or qualified (dclause (vi) If Mortgagor fails of this Section 5.8(d) shall be subject to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so performdeemed approval requirement contained in Section 5.8(c), Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Leasemutatis mutandis).
(e) For purposes Following the occurrence and during the continuance of this Mortgageany Event of Default, the following Obligors shall, upon Lender's request, to the extent not prohibited by applicable Legal Requirements, remit to Lender an amount equal to the aggregate amount of the security deposits (and any interest theretofore earned thereon to which Tenants are entitled) under all Leases, which security deposits will thereafter be held by Lender subject to the terms shall have of the following meanings:Leases until such Event of Default is cured.
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Leases. (a) Notwithstanding anything to the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and Borrower shall furnish to Mortgagee, upon execution, a complete Lender with executed copies of all Leases then in effect. All renewals of Leases and fully executed copy of each Lease. Mortgagor all proposed leases shall provide Mortgagee for rental rates and terms comparable to existing local market rates and, unless otherwise approved by Lender, shall be arm’s length transactions with bona fide, independent third-party Tenants. Within ten (10) days after the execution of a Lease or any renewals, amendments or modification of a Lease, Borrower shall deliver to Lender a copy thereof, together with Borrower’s certification that such Lease (or such renewal, amendment or modification) was entered into in accordance with the terms of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s optionAgreement.
(b) Mortgagor shallBorrower shall not permit or consent to any assignment or sublease of any Lease without Lender’s prior written approval, not to unreasonably withheld (other than assignments or subleases expressly permitted under any Lease pursuant to a unilateral right of the Tenant thereunder not requiring the consent of Borrower). Lender, at its Borrower’s sole cost and expense, perform each obligation shall execute and deliver its standard form of SNDA (i) to Tenants under any future Lease approved by Lender upon request, with such commercially reasonable changes as may be performed requested by the landlord such Tenants and which are acceptable to Lender and (ii) to Tenants under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month future Lease entered into in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunderaccordance with this Agreement.
(c) If any Tenant Borrower shall default cause all Tenants under its Lease, Mortgagor shall, in Leases to execute and deliver a SNDA and Estoppel to Lender on or before the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of MortgageeClosing Date.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
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Sources: Term Loan Agreement
Leases. (a) Notwithstanding anything to the contrary herein, Mortgagor Borrower shall not enter into or amend any Lease without Mortgagee’s Lender's prior written consent, and shall furnish to MortgageeLender, upon execution, a complete and fully executed copy of each Lease. Mortgagor Borrower shall provide Mortgagee Lender with a copy of each proposed Lease requiring the consent of Mortgagee Lender and with any information requested by Mortgagee Lender regarding the proposed Tenant thereunder. Mortgagee Lender may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s Lender's option.
(b) Mortgagor Borrower shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one thirty (130) month days in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor Borrower shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of MortgageeLease.
(d) If Mortgagor Borrower fails to perform any obligations of Mortgagor Borrower under any Lease or if Mortgagee Lender becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor Borrower to so perform, Mortgagee Lender may, but shall not be obligated to, without waiving or releasing Mortgagor Borrower from any Obligationobligation in this Agreement or any of the other Loan Documents, remedy such failure, and Mortgagor Borrower agrees to repay upon demand all sums incurred by Mortgagee Lender in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Default Rate (as set forth and defined in the Bond LeaseNote).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (a) Notwithstanding anything to the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without Without the prior written consent of Mortgagee.
Lender, Borrower shall not (di) If Mortgagor fails enter into any Major Lease or extend or renew any existing Major Lease (other than in accordance with the express terms of such Major Lease, or on terms that are no less favorable to perform the Borrower, as landlord, in any material respect than the Major Lease being extended or renewed, provided in the latter case only, the conditions of Subsection 2.8(b)(i) are satisfied with respect to such extended or renewed Major Lease); (ii) cancel or terminate any Major Lease (except (A) to enforce any such Major Lease after an “event of default” thereunder, (B) pursuant to the exercise by any tenant of any termination rights expressly provided in any existing Major Lease or Major Lease hereafter approved by Lender, or (C) at any time during the last six months of the term of such Major Lease); (iii) approve any assignment of any Major Lease (except as required pursuant to the express terms of any existing Major Lease or Major Lease hereafter approved by Lender) that releases the original tenant from its obligations under such Major Lease; or (iv) except as provided in Subsection 2.8(e), amend, modify or waive the provisions of any Major Lease in any material and adverse respect (including, without limitation, any amendment, modification or waiver reducing the fixed initial term of any Major Lease, reducing the rent payable under any Major Lease, changing any renewal provisions of any Major Lease or materially increasing the obligations of Mortgagor the landlord or materially decreasing the obligations of the tenant under any Major Lease or if Mortgagee becomes aware pursuant to which any premises covered by such Major Lease is surrendered). The term “Major Lease” means any Lease demising (together with all other Leases to the same tenant or any Affiliate thereof) twenty-five percent (25%) or more of the gross square footage of the Property. Any termination payment or is notified fee received by Borrower in connection with the cancellation or termination of Major Lease shall be deposited into the Tenant Improvement & Leasing Commission Reserve to be disbursed upon the same terms and conditions as other funds on deposit in such Reserve, except that (x) any Tenant termination payment or fee received during the last six months of a failure on the part term of Mortgagor such Major Lease, and (y) any termination payment or fee received at any time shall be retained by or released to so perform, Mortgagee mayBorrower if, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease).
(e) For purposes of this Mortgageonly if, the following terms debt service coverage ratio (calculated based upon actual debt service and any debt service due with respect to any Future Permitted Mezzanine Debt and actual net operating income for the trailing six-months annualized (excluding any rents paid by the tenant under the Major Lease being terminated)) shall have the following meanings:equal or exceed 1.
Appears in 1 contract
Sources: Deed of Trust (KBS Real Estate Investment Trust II, Inc.)
Leases. A. Without Lender’s prior written consent, which may be granted or withheld in Lender’s sole discretion, Borrowers shall not enter into or modify, amend, supplement, terminate or cancel any Lease of all or any part of any Property. Any submission by Borrowers for Lender’s consent to a Lease or modification, amendment, supplement, termination or cancellation thereof shall be accompanied by a copy of such Lease or modification, amendment, supplement, termination or cancellation, a then-current Rent Roll for the applicable Property, year-to-date and prior year operating statements for the applicable Property and a cover letter requesting Lender’s consent which contains a signature line on which Lender may evidence Lender’s consent to such Lease or modification, amendment, supplement, termination or cancellation (a) collectively, the “Lease Approval Deliveries”). Each Lease, and each modification, amendment, supplement, termination or cancellation of any Lease, shall be in writing. Notwithstanding anything to the contrary hereinin the Loan Documents, Mortgagor shall Lender’s written consent will not enter be required prior to entering into any new Safe Harbor Lease without Mortgagee’s prior written consentor any modification, amendment, or supplement thereof after the Closing Date (so long as such Lease remains a Safe Harbor Lease after giving effect to any such modification, amendment or supplement), provided that no Event of Default exists and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with Borrowers deliver a copy of each such Safe Harbor Lease to Lender within ten (10) days after execution thereof together with Borrowers’ written certification that such copy is a true, correct and complete copy of such Safe Harbor Lease and that all of the conditions set forth in this sentence and in the definition of “Safe Harbor Lease” have been satisfied.
B. Lender agrees that for any proposed Lease requiring that does not qualify as a Safe Harbor Lease, for which Borrower is required to obtain Lender’s consent thereto, Lender will attempt to respond within ten (10) Business Days, and Lender’s consent shall not be unreasonably withheld based upon market conditions. Borrower shall be permitted to submit a lease summary term sheet, for purposes of obtaining Lender’s approval, which sets out all of the economic terms of the proposed Lease, as well as any deviations from the Lease Form. Lender’s consent will be contingent on tenant signing the Lease Form. Lender will not be obligated to enter into any subordination, non-disturbance and attornment agreement (or similar agreement) for any tenant for which Borrower is requesting Lender lease approval until such time as an executed Lease that complies with the provisions of this Agreement is delivered to Lender. If Lender has failed to respond to the written request for consent of Mortgagee and a proposed Lease after five (5) Business Days after its receipt thereof, together with any additional information requested by Mortgagee regarding that Lender may reasonably require to evaluate such proposed Lease, and Borrower has provided a subsequent five (5) Business Days written notice to Lender requesting consent, each notice marked with a legend in bold capital letters stating: LENDER SHALL BE DEEMED TO HAVE CONSENTED TO THE MATTER CONTAINED HEREIN IF IT FAILS TO RESPOND TO THIS REQUEST FOR CONSENT WITHIN 10/5 (as applicable) BUSINESS DAYS AFTER THE DATE HEREOF, then Lender shall be deemed to have consented to the proposed Tenant thereunder. Mortgagee same.
C. With respect to each Lease, Borrowers:
(a) shall neither do, nor neglect to do, anything that may declare each cause or permit the termination of such Lease, or cause or permit the withholding or abatement of any rent payable under any such Lease;
(i) shall observe and perform all of the obligations imposed upon Borrowers under such Lease and shall not do or permit to be prior or subordinate done anything to this Mortgageimpair the value of the Lease as security for the Secured Obligations, at Mortgagee’s option.the Second Mortgage Secured Obligations, the Third Mortgage Secured Obligations and the Pledge and Security Agreement Obligations;
(bii) Mortgagor shallshall promptly send copies to Lender of all written notices of default that Borrowers shall send or receive under any Lease;
(iii) shall enforce all of the terms, at its cost covenants and expense, perform each obligation conditions contained in the Lease upon the part of the lessee or any other party that is not Borrowers thereunder to be observed or performed by and shall not effect a termination or diminution of the landlord obligations of tenants under each Lease; ;
(iv) shall not borrow against, pledge or further assign collect any rents or other payments due thereunder; not permit the prepayment of rent under any rents or other payments due for Lease more than one (1) month in advance; and advance (other than security deposits);
(v) shall not permit execute any Tenant other assignment of Borrowers’ interest in the Leases or Revenue, except pursuant to assign its Lease the Security Documents;
(vi) shall not alter, modify or sublet the premises covered by its Lease, unless required to do so by change the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance guaranty of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive Leases or waive claims or discharge the Tenant from its obligations under the Lease cancel or terminate or accept a surrender of the Lease such guaranty without the prior written consent of MortgageeLender; and
(vii) shall not consent to any assignment of or subletting under the Lease not in accordance with their terms, without the prior written consent of Lender.
D. Borrowers shall deposit security deposits of tenants under Leases that are turned over to or for the benefit of Borrowers or otherwise collected by or on behalf of Borrowers, into an Eligible Account and in compliance with applicable Legal Requirements and shall not commingle such funds with any other funds of Borrowers. Any bond or other instrument that Borrowers are permitted to hold in lieu of cash security deposits under any applicable Legal Requirements shall be maintained in full force and effect unless replaced by cash deposits as hereinabove described, shall, if permitted pursuant to all applicable Legal Requirements, name Lender as payee or mortgagee thereunder (or at Lender’s option, be fully assignable to Lender) and shall, in all respects, comply with any applicable Legal Requirements and otherwise be reasonably satisfactory to Lender. Borrowers shall, upon request, provide Lender with evidence reasonably satisfactory to Lender of Borrowers’ compliance with the foregoing. Upon the occurrence and during the continuance of any Event of Default, Borrowers shall, upon Lender’s written request, if permitted by any applicable Legal Requirements, turn over to Lender the security deposits (and, if required to be paid to any tenant pursuant to its Lease or applicable Legal Requirements, any interest theretofore earned thereon and not previously disbursed to such tenant) then held with respect to all or any portion of any Property, to be held by Lender subject to the terms of the Leases.
(di) If Mortgagor fails Without limiting the generality of the foregoing, (a) Borrowers shall notify Lender in writing of any cancellation penalties, termination fees or other consideration payable to perform Borrowers in connection with any obligations cancellation, termination or surrender of Mortgagor under any Lease (any such penalties or if Mortgagee becomes aware fees are referred to herein as “Termination Fees”), which written notice shall be delivered to Lender not later than three (3) Business Days following receipt by Borrowers of written notice from the applicable tenant under such Lease of the intention of such tenant to cancel, terminate or is notified surrender such Lease, but in any event prior to the payment by the applicable tenant under such Lease of any Tenant of a failure on the part of Mortgagor such Termination Fees to so perform, Mortgagee such Borrower and (b) Lender may, but shall not be obligated required to, without waiving (i) require that such Borrowers deposits such Termination Fees into a reserve held by Lender or releasing Mortgagor from any ObligationServicer pursuant to a tenant improvement and leasing commissions reserve agreement, remedy such failurewhich agreement shall be in form and substance reasonably satisfactory to Lender, and Mortgagor agrees (ii) impose such restrictions and conditions on the timing and amount of disbursements of the Termination Fees from such reserve account as Lender may reasonably require, including, without limitation (x) requiring that (1) the space left vacant as a result of such cancellation, termination or surrender be relet to repay upon demand all sums incurred a tenant and under a Lease consented to by Mortgagee Lender unless such consent is either not required or deemed given in remedying accordance with this Section 5.1.18 (any such failureLease an “Approved Lease”), together (2) the tenant under such Approved Lease is in occupancy of the portion of the Property demised pursuant to such Approved Lease and is paying rent in accordance with interest thereon such Approved Lease, (3) Borrowers provide to Lender a tenant estoppel certificate from the date incurred at an annual rate equal tenant under such Approved Lease in a form and in substance reasonably acceptable to nine Lender, and one half percent (9.5%4) Borrowers provide to Lender written evidence reasonably acceptable to Lender that all improvements to the applicable Property required pursuant to such Approved Lease have been completed in excess accordance with such Approved Lease, and (y) limiting the amount of any such disbursement to the one month LIBOR Rate lesser of (as set forth 1) the actual cost of re-tenanting such space and defined in (2) the Bond amount calculated by dividing the applicable Termination Fees by the total square feet of space vacated, then multiplying that result by the number of square feet of newly leased space under such Approved Lease).
(eii) For purposes Subject to Section 5.1.18(E)(iii) below, (a) in the event that following the date that any such Termination Fee is paid, as of the date of determination, the Debt Service Coverage Ratio is less than 1.0 to 1.0, then Lender may apply an amount equal to the excess of (x) any Termination Fees over (y) the amount of such Termination Fees disbursed to Borrowers pursuant to Section 5.1.18(E)(ii) above (any such excess amount the “Excess Termination Fees”) to any regularly scheduled payment due and payable by Borrower under the Notes, this Agreement, the Mortgages or the other Loan Documents (including, without limitation, any monthly payment of principal and/or interest and any regularly scheduled reserve deposits) in such order and in such manner as determined by Lender; (b) following the date that any such Termination Fee is paid, as of the date of determination, (x) the Debt Service Coverage Ratio equals or exceeds 1.0 to 1.0 and (y) at least eighty-five percent (85%) of the rentable square feet of space available at all of the Properties is occupied by Leases approved (or deemed approved) by Lender pursuant to this Agreement or the Safe-Harbor Leases, then Lender shall disburse any Excess Termination Fees to Borrowers.
(iii) If any Event of Default exists and is continuing, Lender may apply any Termination Fees to the Secured Obligations, the Second Mortgage Secured Obligations, the Third Mortgage Secured Obligations and the Pledge and Security Agreement Obligations in such order and in such manner as determined by Lender in Lender’s sole discretion.
F. Borrowers shall provide Lender with a Rent Roll on an annual basis, certified by Borrowers to Lender as true, correct and complete. Without limiting the provisions of this MortgageSection 5.1.18, the following terms Rent Roll shall have the following meanings:include all Leases whether or not evidenced by written instruments.
Appears in 1 contract
Sources: Loan Agreement (GTJ REIT, Inc.)
Leases. (a) Notwithstanding anything to the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) The Mortgagor shall, at its own cost and expense, perform perform, comply with and discharge all of the obligations of the Mortgagor under all leases and agreements for the use of the Mortgaged Property and use reasonable efforts to enforce or secure the performance of each obligation to be performed by and undertaking of the landlord respective tenants under each Lease; not borrow againstsuch leases and shall appear in and defend, pledge at its own cost and expense, any action or further assign proceeding arising out of or in any rents or other payments due thereunder; not manner connected with the ▇▇▇▇▇▇▇▇▇'s interest in any leases of the Mortgaged Property. The Mortgagor shall permit the prepayment no surrender nor assignment of any rents tenant's interest under said leases unless the right to assign or other payments due surrender is expressly reserved under the lease, nor receive any installment of rent for more than one (1) month in advance; and not permit any Tenant advance of its due date unless otherwise required pursuant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if of the applicable lease, nor execute any mortgage or create or permit a lien which may be or become superior to any such assignment does not work to relieve the Tenant leases, nor permit a subordination of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect lease to such defaultmortgage or lien. The Mortgagor shall not materially modify or amend the telins of any such leases, but may not discountnor borrow against or pledge the rentals from such leases, compromise, forgive nor exercise or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender any default of the Lease tenant thereunder without the prior written consent of the Mortgagee.
. The Mortgagor agrees to obtain the Mortgagee's prior written approval before entering into any lease with a term of five (d5) If years or more. Should the Mortgagor fails fail to perform perform, comply with or discharge any material obligations of the Mortgagor under any Lease lease or if should the Mortgagee becomes become aware of or is be notified by any Tenant tenant under any lease of a material failure on the part of the Mortgagor to so perform, comply with or discharge its obligations under said lease, the Mortgagee may, but shall not be obligated to, and without further demand upon or notice to the Mortgagor, and without waiving or releasing the Mortgagor from any Obligationobligation in this Mortgage GP:3764046 v1 9 contained, remedy such failure, and the Mortgagor agrees to repay upon demand all sums incurred by the Mortgagee in remedying any such failurefailure together with interest at the Default Rate. All such sums, together with interest thereon as aforesaid, shall become so much additional Secured Indebtedness, but no such advance shall be deemed to relieve the Mortgagor from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess any Event of the one month LIBOR Rate (as set forth and defined in the Bond Lease)Default hereunder.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Mortgage, Security Agreement, Assignment of Leases and Rents, and Fixture Financing Statement
Leases. (ai) All Leases and all renewals of Leases executed after the date hereof shall (A) provide for rental rates comparable to existing local market rates for similar properties, (B) be on commercially reasonable terms, (C) provide that such Lease is subordinate to the Deed of Trust, that the lessee will attorn to Lender and any purchaser at a foreclosure sale, provided that Lender or purchaser at a foreclosure sale agrees to the non-disturbance of such Lease so long as the tenant thereto pays all rents and other charges as specified in such Lease and is not otherwise in default (beyond applicable notice and cure periods) of any of its obligations and covenants pursuant to the Lease, and (D) not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents. All Leases over 10,000 square feet (“Major Leases”) and all other Leases and all renewals, amendments and modifications thereof executed after the date hereof shall be subject to Lender’s prior approval, which approval shall not be unreasonably withheld or delayed. In connection with any renewal, amendment or modification executed after to any Major Lease or Lease, Borrower shall submit to Lender a term sheet (the “Term Sheet”) identifying the proposed tenant, the proposed leased space, term, rent, tenant options, free rent periods, tenant improvement allowances, and other tenant concessions, and all other material economic terms of such proposed lease, together with all information and materials regarding the financial status, creditworthiness, and reputation of such proposed tenant, and any other information regarding the proposed lease and tenant as Lender shall reasonably request. If such Lease is not a Qualified Lease (a “Non-Qualified Lease”) pursuant to this Section 8(r), Lender shall either approve or disapprove such proposed lease within five (5) Business Days after delivery to Lender of the Term Sheet together with all other materials required to be delivered to Lender hereunder or requested by Lender. If Lender fails to approve or reject the proposed Non-Qualified Lease within such five (5) Business Day period, such proposed lease shall be deemed approved by Lender, provided the Term Sheet was delivered to Lender accompanied by a notice stating in bold face type: “THIS IS A REQUEST FOR LEASE APPROVAL. IF LENDER FAILS TO RESPOND WITHIN FIVE (5) BUSINESS DAYS, THE LEASE WILL BE DEEMED APPROVED.” If Lender approves (or is deemed to have approved) a Term Sheet, Borrower may thereafter execute a lease with such proposed tenant provided that (i) such lease is upon the terms set forth in the Term Sheet in all material respects, and (ii) such lease is on the standard lease form approved by Lender with no material adverse modifications (except as approved by Lender). Such lease form shall provide that the tenant shall attorn to Lender, and that any cancellation, surrender, or amendment of such lease without the prior written consent of Lender shall be voidable by Lender. Notwithstanding anything to the contrary hereincontained in the Loan Documents, Mortgagor Lender’s approval shall not enter into be required with respect to any proposed future Leases or Lease without Mortgagee’s prior written consentextensions or amendments (each, a “Qualified Lease”) if the following conditions are satisfied: (1) there exists no Event of Default; (2) the lease is on the standard lease form approved by Lender with no material adverse modifications; (3) the lease does not conflict with any restrictive covenant affecting the Property or any other lease for space in the Property; (4) the leased premises, when combined with all other space in the Property leased to the same tenant or any Affiliate thereof, is less than 5,000 rentable square feet, (5) loan disbursements for leasing costs for such lease shall not exceed $500,000, (6) the tenant under such lease is not an Affiliate of Borrower and such lease is on terms which are arm’s-length and commercially reasonable given then-current market conditions, and shall furnish (7) Borrower delivers to Mortgagee, upon execution, Lender within five (5) Business Days after its execution of such lease (i) a complete and fully executed copy of each such lease (as amended) certified by Borrower as true and complete, and (ii) a certificate of Borrower certifying that the lease (as amended) satisfies all of the conditions of this Section 8(r) to qualify as a Qualified Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(bii) Mortgagor shallBorrower (i) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) shall enforce the terms, at its cost covenants and expense, perform each obligation conditions contained in the Leases upon the part of the lessee thereunder to be observed or performed by in a commercially reasonable manner, provided, however, Borrower shall not terminate or accept a surrender of a Major Lease without Lender’s prior approval; (iii) shall not collect any of the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advanceadvance (other than security deposits); and (iv) shall not permit execute any Tenant to assign its Lease assignment of lessor’s interest in the Leases or sublet the premises covered by its Lease, unless required to do so rents (except as contemplated by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
Loan Documents); (cv) If any Tenant shall default under its Leasenot, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of MortgageeLender, alter, modify or change any Major Lease so as to change the amount of or payment date for rent, change the expiration date, grant any option for additional space or term, materially reduce the obligations of the lessee or increase the obligations of lessor; and (vi) shall hold all security deposits under all Leases in accordance with Legal Requirements. Upon request, Borrower shall furnish Lender with executed copies of all Leases.
(diii) If Mortgagor fails Notwithstanding anything contained herein to perform the contrary, Borrower shall not willfully withhold from Lender any obligations information regarding renewal, extension, amendment, modification, waiver of Mortgagor under provisions of, termination, rental reduction of, surrender of space of, or shortening of the term of, any Lease or if Mortgagee becomes aware during the term of or is notified by the Loan. Borrower further covenants and agrees that all tenants, except for PRC, at the Property as of the date hereof are in physical occupancy of the premises demised under their Leases, are paying full rent under their Leases, and have not exercised any Tenant right to “go dark” that they may have under the provisions of their Leases. Borrower further agrees to provide Lender with written notice of a tenant “going dark” under such tenant’s Lease within five (5) Business Days after such Tenant “goes dark” and Borrower’s failure on the part to provide such notice shall constitute an Event of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)Default.
(eiv) For purposes Borrower shall notify Lender in writing, within two (2) Business Days following receipt thereof, of this MortgageBorrower’s receipt of any early termination fee or payment or other termination fee or payment paid by any tenant under any Lease, and Borrower further covenants and agrees that Borrower shall hold any such termination fee or payment in trust for the following terms benefit of Lender and that any use of such termination fee or payment shall have be subject in all respects to Lender’s prior written consent in Lender’s sole discretion (which consent may include, without limitation, a requirement by Lender that such termination fee or payment be placed in reserve with Lender to be disbursed by Lender for tenant improvement and leasing commission costs with respect to the following meanings:Property and/or for payment of the Debt or otherwise in connection with the Loan evidenced by the Note and/or the Property, as so determined by Lender).
Appears in 1 contract
Sources: Loan and Security Agreement (NNN 2003 Value Fund LLC)
Leases. Seller will keep Buyer apprised of leasing activities involving the Property. Seller has notified Buyer of the pending New Lease Agreements listed on Exhibit T attached hereto and made a part hereof (acollectively, the “Pending Leases”), and Buyer has approved such Pending Leases.
(i) From the Effective Date through the Closing Date or earlier termination of this Agreement, Seller shall notify Buyer in writing prior to entering into any new Leases and amendments to existing Leases (including, but not limited to, any renewals or expansions of existing Leases pursuant to existing options exercised after the Effective Date (a “Lease Option Exercise”)) (any of the foregoing, a “New Lease Agreement”) relating to the Property. Any New Lease Agreement that is on Seller’s standard form (with such reasonable negotiated changes as Seller and the proposed tenant may mutually agree) and that contains terms consistent with the New Lease Guidelines is hereinafter referred to as a “Conforming New Lease Agreement”. Buyer shall have five (5) Business Days after receipt of any New Lease Agreement (which shall be accompanied by copies of the most recent credit reports and financial statements, if any, for the proposed tenant as may be in Seller’s possession) within which to notify Seller in writing as to (A) whether Buyer disputes, in its reasonable discretion, that such New Lease Agreement is a Conforming New Lease Agreement, (B) to approve or disapprove in its reasonable discretion a New Lease Agreement that is not a Conforming New Lease Agreement, or (C) to approve or disapprove in its reasonable discretion the credit of the proposed tenant, whether or not the New Lease Agreement is a Conforming New Lease Agreement. Buyer shall have no right to disapprove any Lease Option Exercise; provided, however, that Buyer shall have the right to approve or disapprove, in its reasonable discretion, Seller’s determination of the fair market rental rate if applicable to any such Lease Option Exercise to the extent Seller’s determination is inconsistent with the New Lease Guidelines. Until Closing or earlier termination of this Agreement, subject to clause (C) above, Seller shall not enter into any New Lease Agreement other than Conforming New Lease Agreements without the prior written consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed. If Buyer fails to notify Seller of its disapproval of any New Lease Agreement within five (5) Business Days after Buyer receives a copy thereof, Buyer shall be deemed to have approved such New Lease Agreement. Agreement of Sale and Purchase
(ii) Notwithstanding anything to the contrary contained herein, Mortgagor on the Effective Date, Seller shall not enter into any Lease without Mortgageepermit Buyer’s prior written consent, and shall furnish approved leasing agent (“Buyer’s Leasing Agent”) to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring show the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, available space in the ordinary course of business, exercise sound business judgment Building to prospective tenants on terms consistent with respect to such defaultthe New Lease Guidelines, but may not discountany commissions due to Buyer’s Leasing Agent shall be the sole responsibility of Buyer. Buyer shall first notify Seller as to the identity of Buyer’s proposed leasing agent for Seller’s approval, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but which shall not be obligated tounreasonably withheld. Any proposed new leases of space shall be subject to Seller’s approval, not to be unreasonably withheld or delayed, provided however it shall be reasonable for Seller to withhold its consent to new leases which do not meet the New Lease Guidelines. Any such proposed new leases shall be on Seller’s standard form (with such reasonable negotiated changes as Seller, Buyer and the proposed tenant may mutually agree and with all negotiations being led by Seller). If Seller approves a new Lease prior to the Closing Date, Buyer shall deposit with the Escrow Agent the amount of any commission payable to Buyer’s Leasing Agent to be disbursed to pay for any amounts payable by Seller to Buyer’s Leasing Agent prior to the Closing Date relating to such new Lease, other than commissions, if any, due to Seller’s Property Manager which shall be paid by Seller. At Closing, any unused portion of such funds deposited by Buyer hereunder shall be released to Buyer. If Closing does not occur for any reason, any unused portion of such funds deposited by Buyer hereunder shall be released to Seller. In addition, Buyer shall reimburse Seller at Closing for any other costs incurred by Seller associated with such new Lease (including, without waiving or releasing Mortgagor from limitation, any Obligation, remedy such failure, tenant improvement allowances and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine Seller’s attorney’s fees and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Leasecosts).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:,
Appears in 1 contract
Sources: Purchase and Sale Agreement (Prime Group Realty Trust)
Leases. The Property is not subject to any Material Leases other than the Affiliate Leases and the Leases described in the certified rent roll delivered in connection with the origination of the Loan. To the Best of Mezzanine Borrower's Knowledge (awhich shall include consultation with Manager), such certified rent roll is true, complete and correct in all material respects as of the date set forth therein. Except as described in the Ground Leases, no Person has any possessory interest in the Property or right to occupy the same (other than typical short-term occupancy rights of hotel guests which are not the subject of a written agreement) Notwithstanding anything except under and pursuant to the contrary hereinprovisions of the Leases. To the Best of Mezzanine Borrower's Knowledge, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consentthe current Leases are in full force and effect and there are no material defaults thereunder by either party (other than as expressly disclosed on the certified rent roll delivered to Mezzanine Lender or the Tenant estoppel certificates delivered to Mezzanine Lender in connection with the closing of the Loan) and there are no conditions that, and shall furnish to Mortgageewith the passage of time or the giving of notice, upon executionor both, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant would constitute material defaults thereunder. Mortgagee may declare each Lease to be prior or subordinate to this MortgageTo the Best of Mezzanine Borrower's Knowledge, at Mortgagee’s option.
(b) Mortgagor shall, at its cost all construction and expense, perform each obligation other obligations of a material nature to be performed by the landlord Mortgage Borrower under each Lease; not borrow againstthe Leases have been satisfied and) any required payments by Mortgage Borrower to the Tenants under the Leases for tenant improvements have been made to the extent required to be satisfied. To the Best of Mezzanine Borrower's Knowledge, pledge or further assign no Tenant under any rents or other payments due thereunder; not permit Lease is entitled to any offsets, abatements, deductions against the prepayment Rent payable under any Lease from and after the date hereof. To the best of any rents or other payments due for Borrower's Knowledge, the Rent has been paid current under the Leases. To the best of Borrower's Knowledge, no Rent has been paid more than one (1) month in advance; and not permit advance of its due date, except as disclosed in the Tenant estoppel certificates delivered to Mezzanine Lender in connection with the closing of the Loan. There has been no prior sale, transfer or assignment, hypothecation or pledge by Mortgage Borrower of Mortgage Borrower's interest in any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without Rents received therein, which will be outstanding following the prior written consent funding of Mortgagee.
(d) If Mortgagor fails the Loan, other than those being assigned to perform any obligations of Mortgagor Mortgage Lender concurrently herewith. No Tenant or other Person under any Lease or if Mortgagee becomes aware of other agreement has any right or is notified by option pursuant to such Lease or other agreement or otherwise to purchase all or any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)Property.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (CNL Hotels & Resorts, Inc.)
Leases. A. Without Lender’s prior written consent, which may be granted or withheld in Lender’s sole discretion, Borrowers shall not enter into or modify, amend, supplement, terminate or cancel any Lease of all or any part of any Property. Any submission by Borrowers for Lender’s consent to a Lease or modification, amendment, supplement, termination or cancellation thereof shall be accompanied by a copy of such Lease or modification, amendment, supplement, termination or cancellation, a then-current Rent Roll for the applicable Property, year-to-date and prior year operating statements for the applicable Property and a cover letter requesting Lender’s consent which contains a signature line on which Lender may evidence Lender’s consent to such Lease or modification, amendment, supplement, termination or cancellation (a) collectively, the “Lease Approval Deliveries”). Each Lease, and each modification, amendment, supplement, termination or cancellation of any Lease, shall be in writing. Notwithstanding anything to the contrary hereinin the Loan Documents, Mortgagor shall Lender’s written consent will not enter be required prior to entering into any new Safe Harbor Lease without Mortgagee’s prior written consentor any modification, amendment, or supplement thereof after the Closing Date (so long as such Lease remains a Safe Harbor Lease after giving effect to any such modification, amendment or supplement), provided that no Event of Default exists and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with Borrowers deliver a copy of each such Safe Harbor Lease to Lender within ten (10) days after execution thereof together with Borrowers’ written certification that such copy is a true, correct and complete copy of such Safe Harbor Lease and that all of the conditions set forth in this sentence and in the definition of “Safe Harbor Lease” have been satisfied.
B. Lender agrees that for any proposed Lease requiring that does not qualify as a Safe Harbor Lease, for which Borrower is required to obtain Lender’s consent thereto, Lender will attempt to respond within ten (10) Business Days, and Lender’s consent shall not be unreasonably withheld based upon market conditions. Borrower shall be permitted to submit a lease summary term sheet, for purposes of obtaining Lender’s approval, which sets out all of the economic terms of the proposed Lease, as well as any deviations from the Lease Form. Lender’s consent will be contingent on tenant signing the Lease Form. Lender will not be obligated to enter into any subordination, non-disturbance and attornment agreement (or similar agreement) for any tenant for which Borrower is requesting Lender lease approval until such time as an executed Lease that complies with the provisions of this Agreement is delivered to Lender. If Lender has failed to respond to the written request for consent of Mortgagee and a proposed Lease after five (5) Business Days after its receipt thereof, together with any additional information requested by Mortgagee regarding that Lender may reasonably require to evaluate such proposed Lease, and Borrower has provided a subsequent five (5) Business Days written notice to Lender requesting consent, each notice marked with a legend in bold capital letters stating: LENDER SHALL BE DEEMED TO HAVE CONSENTED TO THE MATTER CONTAINED HEREIN IF IT FAILS TO RESPOND TO THIS REQUEST FOR CONSENT WITHIN 10/5 (as applicable) BUSINESS DAYS AFTER THE DATE HEREOF, then Lender shall be deemed to have consented to the proposed Tenant thereunder. Mortgagee same.
C. With respect to each Lease, Borrowers:
(a) shall neither do, nor neglect to do, anything that may declare each cause or permit the termination of such Lease, or cause or permit the withholding or abatement of any rent payable under any such Lease;
(i) shall observe and perform all of the obligations imposed upon Borrowers under such Lease and shall not do or permit to be prior or subordinate done anything to this Mortgage, at Mortgagee’s option.impair the value of the Lease as security for the Secured Obligations;
(bii) Mortgagor shallshall promptly send copies to Lender of all written notices of default that Borrowers shall send or receive under any Lease;
(iii) shall enforce all of the terms, at its cost covenants and expense, perform each obligation conditions contained in the Lease upon the part of the lessee or any other party that is not Borrowers thereunder to be observed or performed by and shall not effect a termination or diminution of the landlord obligations of tenants under each Lease; ;
(iv) shall not borrow against, pledge or further assign collect any rents or other payments due thereunder; not permit the prepayment of rent under any rents or other payments due for Lease more than one (1) month in advance; and advance (other than security deposits);
(v) shall not permit execute any Tenant other assignment of Borrowers’ interest in the Leases or Revenue, except pursuant to assign its Lease the Security Documents;
(vi) shall not alter, modify or sublet the premises covered by its Lease, unless required to do so by change the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance guaranty of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive Leases or waive claims or discharge the Tenant from its obligations under the Lease cancel or terminate or accept a surrender of the Lease such guaranty without the prior written consent of MortgageeLender; and
(vii) shall not consent to any assignment of or subletting under the Lease not in accordance with their terms, without the prior written consent of Lender.
D. Borrowers shall deposit security deposits of tenants under Leases that are turned over to or for the benefit of Borrowers or otherwise collected by or on behalf of Borrowers, into an Eligible Account and in compliance with applicable Legal Requirements and shall not commingle such funds with any other funds of Borrowers. Any bond or other instrument that Borrowers are permitted to hold in lieu of cash security deposits under any applicable Legal Requirements shall be maintained in full force and effect unless replaced by cash deposits as hereinabove described, shall, if permitted pursuant to all applicable Legal Requirements, name Lender as payee or mortgagee thereunder (or at Lender’s option, be fully assignable to Lender) and shall, in all respects, comply with any applicable Legal Requirements and otherwise be reasonably satisfactory to Lender. Borrowers shall, upon request, provide Lender with evidence reasonably satisfactory to Lender of Borrowers’ compliance with the foregoing. Upon the occurrence and during the continuance of any Event of Default, Borrowers shall, upon Lender’s written request, if permitted by any applicable Legal Requirements, turn over to Lender the security deposits (and, if required to be paid to any tenant pursuant to its Lease or applicable Legal Requirements, any interest theretofore earned thereon and not previously disbursed to such tenant) then held with respect to all or any portion of any Property, to be held by Lender subject to the terms of the Leases.
(di) If Mortgagor fails Without limiting the generality of the foregoing, (a) Borrowers shall notify Lender in writing of any cancellation penalties, termination fees or other consideration payable to perform Borrowers in connection with any obligations cancellation, termination or surrender of Mortgagor under any Lease (any such penalties or if Mortgagee becomes aware fees are referred to herein as “Termination Fees”), which written notice shall be delivered to Lender not later than three (3) Business Days following receipt by Borrowers of written notice from the applicable tenant under such Lease of the intention of such tenant to cancel, terminate or is notified surrender such Lease, but in any event prior to the payment by the applicable tenant under such Lease of any Tenant of a failure on the part of Mortgagor such Termination Fees to so perform, Mortgagee such Borrower and (b) Lender may, but shall not be obligated required to, without waiving (i) require that such Borrowers deposits such Termination Fees into a reserve held by Lender or releasing Mortgagor from any ObligationServicer pursuant to a tenant improvement and leasing commissions reserve agreement, remedy such failurewhich agreement shall be in form and substance reasonably satisfactory to Lender, and Mortgagor agrees (ii) impose such restrictions and conditions on the timing and amount of disbursements of the Termination Fees from such reserve account as Lender may reasonably require, including, without limitation (x) requiring that (1) the space left vacant as a result of such cancellation, termination or surrender be relet to repay upon demand all sums incurred a tenant and under a Lease consented to by Mortgagee Lender unless such consent is either not required or deemed given in remedying accordance with this Section 5.1.18 (any such failureLease an “Approved Lease”), together (2) the tenant under such Approved Lease is in occupancy of the portion of the Property demised pursuant to such Approved Lease and is paying rent in accordance with interest thereon such Approved Lease, (3) Borrowers provide to Lender a tenant estoppel certificate from the date incurred at an annual rate equal tenant under such Approved Lease in a form and in substance reasonably acceptable to nine Lender, and one half percent (9.5%4) Borrowers provide to Lender written evidence reasonably acceptable to Lender that all improvements to the applicable Property required pursuant to such Approved Lease have been completed in excess accordance with such Approved Lease, and (y) limiting the amount of any such disbursement to the one month LIBOR Rate lesser of (as set forth 1) the actual cost of re-tenanting such space and defined in (2) the Bond amount calculated by dividing the applicable Termination Fees by the total square feet of space vacated, then multiplying that result by the number of square feet of newly leased space under such Approved Lease).
(eii) For purposes Subject to Section 5.1.18(E)(iii) below, (a) in the event that following the date that any such Termination Fee is paid, as of the date of determination, the Debt Service Coverage Ratio is less than 1.0 to 1.0, then Lender may apply an amount equal to the excess of (x) any Termination Fees over (y) the amount of such Termination Fees disbursed to Borrowers pursuant to Section 5.1.18(E)(ii) above (any such excess amount the “Excess Termination Fees”) to any regularly scheduled payment due and payable by Borrower under the Notes, this Agreement, the Mortgages or the other Loan Documents (including, without limitation, any monthly payment of principal and/or interest and any regularly scheduled reserve deposits) in such order and in such manner as determined by Lender; (b) following the date that any such Termination Fee is paid, as of the date of determination, (x) the Debt Service Coverage Ratio equals or exceeds 1.0 to 1.0 and (y) at least eighty-five percent (85%) of the rentable square feet of space available at all of the Properties is occupied by Leases approved (or deemed approved) by Lender pursuant to this Agreement or the Safe-Harbor Leases, then Lender shall disburse any Excess Termination Fees to Borrowers.
(iii) If any Event of Default exists and is continuing, Lender may apply any Termination Fees to the Secured Obligations in such order and in such manner as determined by Lender in Lender’s sole discretion.
F. Borrowers shall provide Lender with a Rent Roll on an annual basis, certified by Borrowers to Lender as true, correct and complete. Without limiting the provisions of this MortgageSection 5.1.18, the following terms Rent Roll shall have the following meanings:include all Leases whether or not evidenced by written instruments.
Appears in 1 contract
Sources: Loan Agreement (GTJ REIT, Inc.)
Leases. (a) Notwithstanding anything Borrower shall, or shall cause Property Owner to, furnish Lender with executed copies of all Major Leases, together with a detailed breakdown of income and cost associated therewith. All Leases executed after the date hereof and renewals or amendments of Leases after the date hereof must be entered into on an arms-length basis with Tenants whose identity and creditworthiness are appropriate for tenancy in a property of comparable quality and nature to the contrary hereinapplicable Mortgaged Property, Mortgagor must provide for rental rates and other economic terms which, taken as a whole, are at least equivalent to then-existing market rates, based on the applicable market, and must contain terms and conditions that are commercially reasonable (in each case, unless Lender consents to such Lease in its sole discretion); provided, however, that the foregoing limitations and consent rights shall not enter into apply to any renewal or amendment of any existing Lease without Mortgagee’s prior written consentwhich Property Owner or TRS Lessee is obligated to execute and deliver after the date hereof in accordance with the terms and conditions of such existing Lease, and shall furnish in each case, to Mortgagee, upon execution, a complete and fully executed copy the extent the terms of each such renewal or amendment are dictated by the provisions of such existing Lease. Mortgagor shall All new Leases must provide Mortgagee with that they are subject and subordinate to any current or future mortgage financing on the Mortgaged Properties and that the Tenants agree to attorn to any foreclosing mortgagee at such mortgagee’s request, provided, that the foregoing subordination and attornment obligations may be conditioned upon the receipt from Mortgage Lender of a copy of each proposed Lease requiring subordination, non-disturbance and attornment agreement substantially in the consent of Mortgagee form attached as Exhibit B to the Mortgage Loan Agreement and with any information such changes as may be commercially reasonably requested by Mortgagee regarding Tenant. To the proposed Tenant thereunder. Mortgagee may declare each extent any such Tenant’s subordination and attornment obligations under any such new Lease to be prior are conditioned on the receipt of a subordination, non-disturbance and attornment agreement from Mortgage Lender, Borrower shall, or subordinate to this Mortgageshall cause Property Owner to, at Mortgageepay all reasonable, out-of-pocket costs and expenses (including attorney’s optionfees) of Lender and Mortgage Lender incurred in connection with the preparation, negotiation, execution and delivery of such subordination, non-disturbance and attornment agreement.
(b) Mortgagor shallAll new Leases which are Major Leases and all new TRS Leases, at its cost and expenseall terminations, perform each obligation to be performed by renewals and amendments of Major Leases or TRS Leases (other than in accordance with Section 2.4 hereof and of the landlord Mortgage Loan Agreement), and any surrender of rights under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Major Lease or sublet TRS Lease (other than in accordance with Section 2.4 hereof and of the premises covered by its Mortgage Loan Agreement), shall be subject to the prior written consent of Lender, which consent, in the absence of a continuing Event of Default, shall not be unreasonably withheld, delayed or conditioned. Each request for approval of a Lease which is submitted to Lender in an envelope marked “URGENT – LENDER’S ATTENTION REQUIRED WITHIN 10 BUSINESS DAYS”, together with a copy of the proposed Lease, unless required to do so by a summary of the material economic terms thereof and then only any termination and other material options contained therein, and copies of all written materials obtained by Borrower or Property Owner in connection with its evaluation of the creditworthiness of the proposed Tenant or, with respect to a proposed termination, a description of the reason therefor, shall be deemed approved if Lender shall not have notified the Borrower in writing of its disapproval within 10 Business Days after receipt of such assignment does submission. For the avoidance of doubt, the deemed approval provision of the immediately preceding sentence shall not work apply to relieve any proposed TRS Lease or amendment thereto. Mortgage Lender’s execution and delivery of a subordination, non-disturbance and attornment agreement to the Tenant of any liability for performance future Major Lease shall be subject to the approval of its obligations thereunderLender, provided, that Lender shall be deemed to have consented to the same if Lender has approved such Major Lease and such subordination, non-disturbance and attornment agreement is in substantially the form attached as Exhibit B to the Mortgage Loan Agreement, with such changes as may be commercially reasonably requested by Tenant and a fully executed copy thereof is delivered to Lender.
(c) If Borrower shall cause Property Owner to (i) observe and perform (or cause to be observed and performed) in a commercially reasonable manner all the material obligations imposed upon the lessor under the Leases and the TRS Lease; (ii) enforce in a commercially reasonable manner all of the material terms, covenants and conditions contained (x) in the case of Leases, on the part of the lessee or (y) in the case of TRS Leases, on the part of the TRS Lessees, thereunder to be observed or performed, short of termination thereof, except that Borrower may cause Property Owner to terminate (or cause the termination of) any Lease following a material default thereunder by the respective Tenant shall default under its Lease, Mortgagor shallor, in the ordinary course case of businessLeases which are not Material Leases, exercise sound business judgment if such termination would not have a Material Adverse Effect; (iii) not collect any of the rents thereunder more than one month in advance of its due date (other than security deposits held in accordance with respect to such default, but may the terms of this Agreement); (iv) not discount, compromise, forgive execute any assignment of lessor’s interest in the Leases or waive claims TRS Leases or discharge associated rents other than the Tenant from its obligations assignments of rents and leases under the Lease Mortgages; and (v) not cancel or terminate or accept a surrender any guarantee of any of the Lease Major Leases or TRS Leases without the prior written consent of MortgageeLender, which consent, in the absence of a continuing Event of Default, shall not be unreasonably withheld, delayed or conditioned. Except as otherwise explicitly set forth herein (including, without limitation, in Section 2.4 hereof and of the Mortgage Loan Agreement), no TRS Lease may be terminated by Property Owner without the prior written consent of Lender, which may be withheld in Lender’s sole discretion.
(d) If Mortgagor fails to perform Security deposits of Tenants under all Leases, whether held in cash or any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so performother form, Mortgagee may, but shall not be obligated commingled with any other funds of Borrower, Property Owner, Property Owner GP or TRS Lessee and, if cash, Borrower shall cause the same to be deposited (or caused to be deposited) by Property Owner or TRS Lessee at such commercial or savings bank or banks as may be reasonably satisfactory to Mortgage Lender (or Lender, if the Mortgage Loan is no longer outstanding or Mortgage Lender is otherwise not requiring Property Owner or TRS Lessee to be in compliance with Section 5.7(d) of the Mortgage Loan Agreement) and Property Owner’s or TRS Lessee’s rights thereto pledged to Mortgage Lender (or Lender, if the Mortgage Loan is no longer outstanding or Mortgage Lender is otherwise not requiring Property Owner or TRS Lessee to be in compliance with Section 5.7(d) of the Mortgage Loan Agreement). Any bond or other instrument which Property Owner or TRS Lessee is permitted to hold in lieu of cash security deposits under any applicable Legal Requirements shall be maintained in full force and effect unless replaced by cash deposits as described above, shall be issued by an institution reasonably satisfactory to Mortgage Lender (or Lender, if the Mortgage Loan is no longer outstanding or Mortgage Lender is otherwise not requiring Property Owner or TRS Lessee to be in compliance with Section 5.7(d) of the Mortgage Loan Agreement), shall (if not prohibited by any Legal Requirements) name Mortgage Lender as payee or mortgagee (or name Lender as payee, if the Mortgage Loan is no longer outstanding or Mortgage Lender is otherwise not requiring Property Owner or TRS Lessee to be in compliance with Section 5.7(d) of the Mortgage Loan Agreement) thereunder (or be fully assignable to Mortgage Lender (or Lender, if the Mortgage Loan is no longer outstanding or Mortgage Lender is otherwise not requiring Property Owner or TRS Lessee to be in compliance with Section 5.7(d) of the Mortgage Loan Agreement)) or may name Property Owner or TRS Lessee as payee thereunder so long as such bond or other instrument is pledged to Mortgage Lender (or Lender, if the Mortgage Loan is no longer outstanding or Mortgage Lender is otherwise not requiring Property Owner or TRS Lessee to be in compliance with Section 5.7(d) of the Mortgage Loan Agreement) as security for the Indebtedness and shall, in all respects, comply with any applicable Legal Requirements and otherwise be reasonably satisfactory to Mortgage Lender (or Lender, if the Mortgage Loan is no longer outstanding or Mortgage Lender is otherwise not requiring Property Owner or TRS Lessee to be in compliance with Section 5.7(d) of the Mortgage Loan Agreement). Borrower shall (or shall cause Property Owner or TRS Lessee to), without waiving upon Lender’s request, provide Lender with evidence reasonably satisfactory to Lender of Borrower’s, Property Owner’s and TRS Lessee’s compliance with the foregoing. During the continuance of any Event of Default, subject to the rights of Mortgage Lender under the Mortgage Loan Documents, Borrower shall (or releasing Mortgagor from shall cause Property Owner or TRS Lessee to), upon Lender’s request, deposit with Lender in an Eligible Account pledged to Lender an amount equal to the aggregate security deposits of the Tenants (and any Obligation, remedy interest theretofore earned on such failuresecurity deposits and actually received by Property Owner or TRS Lessee) which Property Owner or TRS Lessee had not returned to the applicable Tenants or applied in accordance with the terms of the applicable Lease, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee Lender shall hold such security deposits in remedying any such failure, together a segregated account in accordance with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond applicable Lease).
(e) For purposes Borrower shall provide a copy of this Mortgage, each notice of default or event of default delivered or received by Property Owner under the following terms shall have the following meanings:TRS Leases.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (W2007 Grace Acquisition I Inc)
Leases. (a) Notwithstanding anything to the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. , Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord Landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one thirty (130) month days in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of MortgageeLease.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Default Rate (as set forth and defined in the Bond LeaseLoan Agreement).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (a) Notwithstanding anything Mortgagor hereby represents that there are no leases or agreements to lease all or any part of the Mortgaged Property now in effect except the Leases, if any, expressly approved in writing by Mortgagee. Mortgagor agrees not to enter into any Leases or agreements to lease all or any part of the Mortgaged Property or to modify, amend, terminate or consent to the contrary hereinsurrender of, or assign its interest in, any Leases or to permit the tenant or subtenant thereunder to subordinate its Leases to any lien subordinate to this Mortgage, without the prior written consent thereof by Mortgagee.
(b) Upon receipt by Mortgagor, from time to time, of any security deposit, prepaid rent (other than prepaid rent for the next succeeding calendar month), or similar payments by a tenant, subtenant, licensee or other user of the Mortgaged Property, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, deposit such sum in a complete and fully executed copy of each Leaseseparate escrow account with a national or state bank having banking offices in the state in which the Mortgaged Property is located. Mortgagor shall provide promptly give Mortgagee with a copy written notice of each proposed Lease requiring the consent name and address of the bank and the account number of the escrow account. Mortgagor shall also give written authorization to such bank to permit Mortgagee and with to receive any information requested by Mortgagee regarding from the proposed Tenant thereunderbank as to the status and balance of such account. Mortgagee may declare each Lease to Said sums shall be held in trust by Mortgagor and disbursed only upon the prior or subordinate to this Mortgagewritten approval of Mortgagee, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to which approval shall not be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the unreasonably withheld. The prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving required when by law (or releasing agreement approved by Mortgagee) Mortgagor from is required to return any Obligation, remedy of such failure, sums to the party who deposited it with Mortgagor. Mortgagor hereby assigns all of such bank accounts to Mortgagee as collateral security for the Obligations and Mortgagor agrees to repay upon demand all sums incurred that after an Event of Default by Mortgagee in remedying any such failure, together with interest thereon from Mortgagor under the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease).
(e) For purposes of this MortgageLoan Documents, the following terms sums in said bank accounts shall, at the election of Mortgagee, be payable to Mortgagee as assignee of such bank account; provided, however, that Mortgagee shall have the following meanings:no liability for any prior misapplication of said sums by Mortgagor.
Appears in 1 contract
Sources: Mortgage, Security Agreement and Fixture Filing (Blonder Tongue Laboratories Inc)
Leases. (a) Notwithstanding anything Borrower shall cause Mortgage Borrower to the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent or a proposed renewal, extension or modification of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the an existing Lease without the prior written consent of Mortgagee.
Lender, which consent shall not, so long as no Event of Default is continuing, be unreasonably withheld or delayed. Prior to seeking Lender’s consent to any Lease, Borrower shall cause Mortgage Borrower to deliver to Lender a copy of such proposed Lease (da “Proposed Lease”) blacklined to show changes from the standard form of Lease approved by Lender and then being used by Borrower. Lender shall approve or disapprove each Proposed Lease or proposed renewal, extension or modification of an existing Lease for which Lender’s approval is required under this Agreement within ten (10) Business Days of the submission by Borrower to Lender of a written request for such approval, accompanied by a final copy of the Proposed Lease or proposed renewal, extension or modification of an existing Lease. If Mortgagor requested by Borrower, Lender will grant conditional approvals of a Proposed Lease or a proposed renewal, extension or modification of an existing Lease at any stage of the leasing process, from initial “term sheet” through negotiated lease drafts, provided that Lender shall retain the right to disapprove any such Proposed Lease or proposed renewal, extension or modification of an existing Lease if subsequent to any preliminary approval material changes are made to the terms previously approved by Lender, or additional material terms are added that had not previously been considered and approved by Lender in connection with such Proposed Lease or proposed renewal, extension or modification of an existing Lease. Provided that no Event of Default is continuing, if Borrower provides Lender with a written request for approval (which written request shall specifically refer to this Section 5.9.2 and Lender fails to perform any obligations reject the request in writing delivered to Borrower within ten (10) Business Days after receipt by Lender of Mortgagor under any the request, Borrower shall provide Lender with a second written request for approval (which written request shall specifically refer to this Section 5.9.2 and shall explicitly state that failure by Lender to approve or disapprove within five (5) Business Days will constitute a deemed approval) and Lender fails to reject the request in writing delivered to Borrower within five (5) Business Days after receipt by Lender of the second such request, the Proposed Lease or if Mortgagee becomes aware proposed renewal, extension or modification of or is notified an existing Lease shall be deemed approved by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failureLender, and Mortgagor agrees Borrower shall be entitled to repay upon demand all sums incurred by Mortgagee in remedying any enter into such failureProposed Lease or proposed renewal, together with interest thereon from the date incurred at extension or modification of an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond existing Lease).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Mezzanine Loan Agreement
Leases. (a) Notwithstanding anything All Major Leases and all renewals, amendments and modifications thereof executed after the date hereof shall be subject to Lender's prior approval, not to be unreasonably withheld, to the contrary hereinextent such Major Leases or renewals, Mortgagor shall amendments or modifications thereof are not enter into any Lease without Mortgagee’s prior written consent, at market rates and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s optionon market terms.
(b) Mortgagor shallBorrower may terminate or accept a surrender of one or more Leases demising up to 100,000 square feet on an aggregate basis without Lender's approval. Borrower shall not terminate or accept a surrender of Leases demising more than 100,000 square feet on an aggregate basis without Lender's prior approval, at its cost and expense, perform each obligation not to be performed by unreasonably withheld; provided, however, that the landlord under each Lease; not borrow against, pledge termination or further assign any rents or other payments due thereunder; not permit the prepayment surrender of any Lease demising space to The Hearst Corporation shall neither require Lender's approval nor be included in such 100,000 square foot aggregate amount so long as Borrower has executed a replacement Lease with another tenant with respect to such terminated or surrendered space in accordance with subparagraph (a) above. Each request by Borrower for approval of any termination or surrender of any Lease shall be made by written notice to Lender and must include a statement in bold face type that if Lender shall fail to approve or disapprove such termination or surrender within ten (10) Business Days after receipt by Lender of such request, such termination or surrender shall be deemed to have been approved. If Lender fails to respond to such notice within such ten (10) day period, Borrower shall deliver a second copy of the original notice to Lender via overnight courier which copy shall be marked "Second Notice." Lender shall approve or disapprove any such termination or surrender within five (5) Business Days after receipt by Lender of such Second Notice. If Lender shall fail to disapprove of any such termination or surrender within such five (5) day period, time being of the essence, Lender shall be conclusively deemed to have approved such termination or surrender.
(c) Borrower (i) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the lessee thereunder to be observed or performed in a commercially reasonable manner, provided, however, that Borrower shall comply with the provisions of paragraph (b) above; (iii) shall not collect any of the rents or other payments due for more than one (1) month in advanceadvance (other than security deposits); and (iv) shall not permit execute any Tenant to assign its Lease assignment of lessor's interest in the Leases or sublet the premises covered by its Lease, unless required to do so Rents (except as contemplated by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of MortgageeLoan Documents).
(d) If Mortgagor fails to perform any obligations Upon request, Borrower shall furnish Lender with executed copies of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)Leases.
(e) For purposes Upon request from Borrower, Lender shall provide (i) a subordination, nondisturbance and attornment agreement on Lender's standard form to each lessee under any Lease executed in accordance with the terms of this MortgageAgreement after the date hereof and which demises at least 12,500 rentable square feet of space in the Property and (ii) a subordination, nondisturbance and attornment agreement to each lessee under any Lease existing as of the following terms shall have date hereof to the following meanings:extent such Lease requires the delivery of such an agreement.
Appears in 1 contract
Leases. Each Borrower covenants that it shall enforce in a commercially reasonable manner all of its rights under the Leases and it shall not take any action, or fail to take any action, which would cause a default by a Borrower under any of the Leases. In the event that any Borrower receives any written request for its consent or approval pursuant to any of the Leases, such Borrower shall promptly deliver a copy of such request (atogether with any documentation and information supporting such request) Notwithstanding anything to Agent. If such consent or approval involves any Material Lease Modification (as defined in subsection 7.1.2 below), then no Borrower shall grant its consent or approval pursuant to such request unless Agent has also granted its written approval, which approval shall not be unreasonably withheld or delayed. Each Borrower shall promptly deliver to Agent copies of any financial statements received by such Borrower in connection with the Leases, including without limitation, financial statements, budgets, reports and other financial information of tenants, subtenants and guarantors. Agent shall have no obligation to notify Borrowers if any rent payment is late or if a rent payment is made in an amount other than the amount due under the applicable Lease. Each Borrower shall also deliver to Agent any letters of credit which have been delivered to such Borrower by any Tenant under any of the Leases, and each Borrower hereby grants to Agent a security interest in any such letters of credit. All new or replacement Leases shall be substantially similar to the contrary herein, Mortgagor forms previously approved by Agent. Borrowers shall not be authorized to enter into any Lease ground lease of any Property without Mortgagee’s Agent's prior written consent, and shall furnish approval. If Agent consents to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware the renewal of any existing Lease, then such Lease shall either be substantially similar to the form approved by Agent under Section 4.2 above or is notified as otherwise approved by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failureAgent, and Mortgagor agrees at Agent's request, Borrowers shall cause the Tenant thereunder to repay upon demand all sums incurred by Mortgagee execute a subordination and attornment agreement in remedying any form and substance reasonably satisfactory to Agent simultaneously with Borrowers' execution of such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)Lease or renewal.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (a) Notwithstanding anything Mortgagor hereby represents that there are no leases or agreements to lease all or any part of the Mortgaged Property now in effect except the Leases, if any, expressly approved in writing by Mortgagee. Mortgagor agrees not to enter into any Leases or agreements to lease all or any part of the Mortgaged Property or to terminate or consent to the contrary hereinprior surrender of, or assign its interest in, or modify or amend in any material respect any Leases or to permit the tenant or subtenant thereunder to subordinate its Leases to any lien subordinate to this Mortgage, without the prior written consent thereof by Mortgagee, which consent shall not be unreasonably withheld, conditioned or delayed. Upon receipt by Mortgagor, from time to time, of any security deposit, prepaid rent (other than prepaid rent for the next succeeding calendar month), or similar payments by a tenant, subtenant, licensee or other user of the Mortgaged Property, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, deposit such sum in a complete and fully executed copy of each Leaseseparate escrow account with a national or state bank having banking offices in the state in which the Mortgaged Property is located. Mortgagor shall provide promptly give Mortgagee with a copy written notice of each proposed Lease requiring the consent name and address of the bank and the account number of the escrow account Mortgagor shall also give written authorization to such bank to permit Mortgagee and with to receive any information requested by Mortgagee regarding from the proposed Tenant thereunderbank as to the status and balance of such account. Mortgagee may declare each Lease to Said sums shall be held in trust by Mortgagor and disbursed only upon the prior or subordinate to this Mortgagewritten approval of Mortgagee, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to which approval shall not be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the unreasonably withheld. The prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving required when by law (or releasing agreement approved by Mortgagee) Mortgagor from is required to return any Obligation, remedy of such failure, sums to the party who deposited it with Mortgagor. Mortgagor hereby assigns all of such bank accounts to Mortgagee as collateral security for the Obligations and Mortgagor agrees to repay upon demand all sums incurred that after an Event of Default by Mortgagee in remedying any such failure, together with interest thereon from Mortgagor under the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease).
(e) For purposes of this MortgageLoan Documents, the following terms sums in said bank accounts shall, at the election of Mortgagee, be payable to Mortgagee as assignee of such bank account; provided, however, that Mortgagee shall have the following meanings:no liability for any prior misapplication of said sums by Mortgagor.
Appears in 1 contract
Sources: Mortgage, Security Agreement and Fixture Filing (NeoStem, Inc.)
Leases. (a) Notwithstanding anything to the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond LeaseLoan Agreement).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (a) Notwithstanding anything to Between the contrary hereindate hereof and the Closing Date, Mortgagor without first obtaining Buyer’s written consent, which consent shall not be unreasonably withheld during the Due Diligence Period but may be withheld in Buyer’s sole and absolute discretion thereafter, Seller will not (i) terminate or modify existing Leases; or (ii) enter into any Lease without Mortgagee’s prior written consentnew leases or grant additional renewal rights to any tenant. If, and shall furnish during the term of this Agreement, Seller desires to Mortgageetake any of the actions set forth in (i) or (ii) above, upon execution, a complete and fully executed copy of each Lease. Mortgagor Seller shall provide Mortgagee written notice of such matter to Buyer, together with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease lease or lease modification (and, if applicable, a disclosure of the Leasing Costs (defined below)), and Buyer shall have five (5) days in which to be prior respond to Seller in writing whether Buyer is granting or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect withholding consent to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender matter. If Buyer withholds consent to such matter Buyer shall concurrently with delivery of the Lease without the prior aforementioned written consent of Mortgagee.
(d) If Mortgagor fails notice, provide Seller with a detailed written explanation as to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or why Buyer is notified by any Tenant of a withholding its consent. Buyer’s failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees provide timely written notice to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (Seller as set forth and defined in the Bond second preceding sentence shall be deemed Buyer’s consent to such matter during the Due Diligence Period, or if requested after the Due Diligence Period, the same shall be deemed disapproved by Buyer. If Buyer consents to any of the actions set forth in (ii) above and proceeds to close Escrow, Buyer shall (A) reimburse Seller for the reasonable out of pocket costs and expenses paid by Seller in connection with such Lease, including, but not limited to, brokerage commissions, tenant improvement allowances, costs associated with tenant improvements, reasonable attorneys’ fees and costs, and any other third party costs and expenses (collectively “Leasing Costs”).
, (eB) For purposes assume the responsibility for the payment of Leasing Costs for such lease which are unpaid as of the Closing; and (C) indemnify, defend, protect and hold Seller harmless from and against any and all claims, responsibility, liability, costs, loss, damage, expenses or causes of action arising from the Leasing Costs for such lease which are unpaid as of the Closing; provided, however that in each such instance such Leasing Costs were disclosed in writing to Buyer concurrently with such approval request. The provisions of this Mortgage, Section 7.3.2 shall survive the following terms shall have Closing or be reflected in the following meanings:Assignment and Assumption of Leases.
Appears in 1 contract
Leases. (a) Notwithstanding anything Borrower shall furnish Lender with executed copies of all Leases, together with a detailed breakdown of income and cost associated therewith. All new Leases and renewals or amendments of Leases must be entered into on an arms-length basis with Tenants whose identity and creditworthiness is appropriate for tenancy in a property of comparable quality, must provide for rental rates and other economic terms which, taken as a whole, are at least equivalent to then-existing market rates, based on the applicable market, and must contain terms and conditions that are commercially reasonable (in each case, unless Lender consents to such Lease in its sole discretion). All new Leases must provide that they are subject and subordinate to any current or future mortgage financing on the Property and that the Tenant agrees to attorn to any foreclosing mortgagee at such mortgagee's request, provided such mortgagee provides a nondisturbance agreement to the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, Tenant in form and shall furnish substance contained in Exhibit D to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information Mortgage or another form requested by Mortgagee regarding the proposed a Tenant thereunder. Mortgagee may declare each Lease which form is reasonably acceptable to be prior or subordinate to this Mortgage, at Mortgagee’s optionsuch mortgagee.
(b) Mortgagor shallAll new Leases which are Major Leases, at its cost and expense, perform each obligation to be performed all terminations (other than as a result of a material default by the landlord Tenant thereunder), renewals (other than at Tenant's option as contained in the Lease) and material amendments of Major Leases, and any surrender of landlord's material rights under each any Major Lease; , shall be subject to the prior written consent of Lender, which consent shall not borrow againstbe unreasonably withheld or delayed. With regard to any action described in this Section 5.7(b) for which Lender's consent is required, pledge Lender shall not withhold its consent or further assign disapproval to any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due such action for more than one ten (110) month Business Days after request for approval thereof has been made by Borrower, accompanied by a detailed description of the request for which approval is sought, provided that Borrower submits such request for Lender's approval in advance; an envelope labeled "Priority" and not permit any Tenant delivered to assign its Lease Lender by overnight delivery and otherwise in accordance with the provisions of Section 9.4 and which request shall state at the top of the first page in bold lettering "LENDER'S RESPONSE IS REQUIRED WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER." In the event that Lender fails to either approve such request or sublet disapprove such request for more than ten (10) Business Days after receipt thereof, the premises covered by its Lease, unless required to do so by action that was the terms thereof and then only if such assignment does not work to relieve the Tenant subject of any liability for performance of its obligations thereundersaid request shall be deemed approved.
(c) If any Tenant Borrower shall default (i) observe and perform all the material obligations imposed upon the lessor under its Leasethe Leases; (ii) enforce all of the material terms, Mortgagor shall, covenants and conditions contained in the ordinary course Leases on the part of businessthe lessee thereunder to be observed or performed, exercise sound business judgment with respect to such defaultshort of termination thereof, but except that Borrower may terminate any Lease following a material default thereunder by the respective Tenant; (iii) not discount, compromise, forgive collect any of the rents thereunder more than one month in advance; (iv) not execute any assignment of lessor's interest in the Leases or waive claims or discharge associated rents other than the Tenant from its obligations assignment of rents and leases under the Lease Mortgage; and (v) not cancel or terminate or accept a surrender any guarantee of any of the Lease Major Leases without the prior written consent of MortgageeLender which consent shall not be unreasonably withheld or delayed. With regard to any action described in this Section 5.7(c) for which Lender's consent is required, Lender shall not withhold its consent or disapproval to any such action for more than ten (10) Business Days after request for approval thereof has been made by Borrower, accompanied by a detailed description of the request for which approval is sought, provided that Borrower submits such request for Lender's approval in an envelope labeled "Priority" and delivered to Lender by overnight delivery and otherwise in accordance with the provisions of Section 9.4 and which request shall state at the top of the first page in bold lettering "LENDER'S RESPONSE IS REQUIRED WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER." In the event that Lender fails to either approve such request or disapprove such request for more than ten (10) Business Days after receipt thereof, the action that was the subject of said request shall be deemed approved. Borrower shall deliver to each new Tenant a Tenant Notice upon execution of such Tenant's Lease, and promptly thereafter deliver to Lender a copy thereof and evidence of such Tenant's receipt thereof.
(d) If Mortgagor fails to perform Security deposits of Tenants under all Leases, whether held in cash or any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so performother form, Mortgagee may, but shall not be obligated tocommingled with any other funds of Borrower and, without waiving if cash, shall be deposited by Borrower at such commercial or releasing Mortgagor from savings bank or banks as may be reasonably satisfactory to Lender and pledged to Lender. Any bond or other instrument which Borrower is permitted to hold in lieu of cash security deposits under any Obligationapplicable Legal Requirements shall be maintained in full force and effect unless replaced by cash deposits as described above, remedy shall (if not prohibited by any Legal Requirements) name Lender as payee or mortgagee thereunder (or at Lender's option, be fully assignable to Lender) or may name Borrower as payee thereunder so long as such failurebond or other instrument is pledged to Lender as security for the Indebtedness and shall, in all material respects, comply with any applicable Legal Requirements. Borrower shall, upon Lender's request, provide Lender with evidence reasonably satisfactory to Lender of Borrower's compliance with the foregoing. During the continuance of any Event of Default, Borrower shall, upon Lender's request, deposit with Lender in a segregated Eligible Account pledged to Lender the aggregate cash security deposits of the Tenants (and any interest theretofore earned on such security deposits and actually received by Borrower) which Borrower had not returned to the applicable Tenants or applied in accordance with the terms of the applicable Lease, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee Lender shall hold such security deposits in remedying any such failure, together a segregated account in accordance with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond applicable Lease).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Loan Agreement (Alexanders Inc)
Leases. (a) Notwithstanding anything Borrower shall furnish Lender with executed copies of all Leases and any amendments to the contrary hereinLTF CO Lease, Mortgagor shall not enter together with a detailed breakdown of income and cost associated therewith. All new Leases and any renewals or amendments of the LTF CO Lease must be entered into any Lease without Mortgagee’s prior written consenton an arms-length basis with LTF CO, must provide for rental rates and other economic terms which, taken as a whole, are at least equivalent to then-existing market rates, based on the applicable market, and shall furnish must contain terms and conditions that are commercially reasonable (in each case, unless Lender consents to Mortgagee, upon execution, a complete such Lease in its sole discretion). All new or amended Leases must provide that they are subject and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, any current or future mortgage financing on the applicable Property and that the Tenant agrees to attorn to any foreclosing mortgagee at Mortgageesuch mortgagee’s optionrequest.
(b) Mortgagor shallAny terminations, at its cost renewals and expense, perform each obligation to be performed by amendments of the landlord LTF CO Lease and any surrender of rights under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its such Lease, unless required shall be subject to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant prior written consent of any liability for performance of its obligations thereunderLender.
(c) If any Tenant Borrower shall default (i) observe and perform all the material obligations imposed upon the lessor under its Leasethe Leases; (ii) enforce all of the material terms, Mortgagor shall, covenants and conditions contained in the ordinary course Leases or guaranties thereof on the part of businessthe lessee or guarantor thereunder to be observed or performed, exercise sound business judgment with respect to such defaultshort of termination thereof, but except that Borrower may terminate any Lease other than the LTF CO Lease following a material default thereunder by the Tenant; (iii) not discount, compromise, forgive collect any of the rents thereunder more than one month in advance; (iv) not execute any assignment of lessor’s interest in the Leases or waive claims or discharge associated rents other than the Tenant from its obligations assignments of rents and leases under the Mortgages; and (v) not cancel or terminate any guarantee of any LTF CO Lease or terminate or accept a surrender of the any other Lease without the prior written consent of MortgageeLender. Borrower shall deliver to each new Tenant a Tenant Notice upon execution of such Tenant’s Lease, and promptly thereafter deliver to Lender a copy thereof and evidence of such Tenant’s receipt thereof.
(d) If Mortgagor fails to perform Security deposits of Tenants under all Leases, whether held in cash or any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so performother form, Mortgagee may, but shall not be obligated tocommingled with any other funds of Borrower and, without waiving if cash, shall be deposited by Borrower in an account at such commercial or releasing Mortgagor from savings bank as may be reasonably satisfactory to Lender, which account is hereby pledged to Lender. Any bond or other instrument which Borrower is permitted to hold in lieu of cash security deposits under any Obligationapplicable Legal Requirements shall be maintained in full force and effect unless replaced by cash deposits as described above, remedy shall be issued by an institution reasonably satisfactory to Lender, shall (if not prohibited by any Legal Requirements) name Lender as payee or mortgagee thereunder (or at Lender’s option, be fully assignable to Lender) or may name Borrower as payee thereunder so long as such failurebond or other instrument is pledged to Lender as security for the Indebtedness and shall, in all respects, comply with any applicable Legal Requirements and Mortgagor agrees otherwise be reasonably satisfactory to repay Lender. Borrower shall, upon demand all sums incurred by Mortgagee Lender’s request, provide Lender with evidence reasonably satisfactory to Lender of Borrower’s compliance with the foregoing. During the continuance of any Escrow Period or Event of Default, Borrower shall, upon Lender’s request, deposit with Lender in remedying any such failure, together with interest thereon from the date incurred at an annual rate Eligible Account pledged to Lender an amount equal to nine and one half percent (9.5%) in excess the aggregate security deposits of the one month LIBOR Rate Tenants (as set forth and defined any interest theretofore earned on such security deposits and actually received by Borrower) which Borrower had not returned to the applicable Tenants or applied in accordance with the Bond terms of the applicable Lease).
(e) For purposes of this Mortgage. G▇▇▇▇▇▇ Sachs Commercial Mortgage Capital, the following terms shall have the following meanings:L.P. Loan Agreement Life Time Fitness Portfolio
Appears in 1 contract
Leases. (a) Notwithstanding anything to the contrary herein, The Mortgagor shall not enter into observe and perform all the obligations imposed upon the Mortgagor under any Lease without Mortgagee’s prior written consentlease of the Real Property or any portion thereof, and shall furnish not do or permit to be done anything which would impair the security of any such lease to the Mortgagee, upon executionnor cancel or change any terms, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior conditions or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment covenants of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender lease of the Lease Real Property or any portion thereof without the prior written consent of the Mortgagee.
(d) If Mortgagor fails , nor execute any lease providing for payment of rent for more than one month in advance, nor receive rent from any tenant of all or any part of the Real Property for more than one month in advance without the prior written consent of the Mortgagee. The Mortgagee agrees not to perform unreasonably withhold its consent to any obligations change, cancellation of Mortgagor under the covenants of any Lease Lease, any change in the condition of the Premises, or if Mortgagee becomes aware of or is notified by any Tenant concerning the execution of a failure Lease providing for payment of rent for more than one month in advance. The Mortgagor agrees to hold in trust for the benefit of the Mortgagee any such advance rent in excess of one month received by the Mortgagor. The Mortgagor agrees to send to the Mortgagee any notice of default given by the Mortgagor to any lessee or occupant of the Real Property and any notice of default received by the mortgagor from any tenant or other occupant of the Real Property, and to give prompt written notice to the Mortgagee of any material default on the part of any tenant or other occupant of the Real Property, whether or not the Mortgagor has given notice of such condition to so performthe tenant or occupant in default. No tenant or occupant under any lease of the Real Property which is subordinate to this Mortgage shall be entitled to terminate such tenant's or occupant's lease without giving the Mortgagee written notice of the Mortgagor's default under such lease and, if Mortgagor fails to cure any default within the applicable grace period, if any, contained in said lease, giving Mortgagee mayan additional reasonable period of time to cure such default. In no event shall the Mortgagee have any liability to any tenant or occupant for any default by Mortgagor or for the return of any security deposit given to the Mortgagor and in no event shall the Mortgagee be subject to any setoff, but shall not be obligated todefense or claim which any tenant or occupant may have against the Mortgagor. Any tenant or occupant of the Real Property shall, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon promptly after receipt of a request from the date incurred Mortgagee made at an annual rate equal any time prior to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease).
(e) For purposes foreclosure of this Mortgage, execute, acknowledge and deliver to the following terms Mortgagee such instrument as the Mortgagee may reasonably request agreeing to attorn to the Mortgagee, at the election of the Mortgagee, after the foreclosure of this Mortgage. The Mortgagee shall have the following meanings:right to subordinate this Mortgage and its rights hereunder to any lease of the Real Property or any portion thereof which is subordinate to this Mortgage, except that the Mortgagee shall be entitled to expressly exclude from such subordination the Mortgagee's rights to insurance proceeds and eminent domain awards in the event of a loss or casualty or eminent domain taking of the Mortgaged Property or any portion thereof. If the Mortgagee executes and records an instrument which purports to effect a partial or complete subordination of this Mortgage to any lease which is subordinate to this Mortgage, such lease shall not be terminated by a foreclosure of this Mortgage, but any rights of the Mortgagee to insurance proceeds or eminent domain awards which are expressly excluded from such subordination shall remain superior to the rights of the tenant under such lease.
Appears in 1 contract
Leases. (a) Notwithstanding anything Lender hereby approves the Master Lease. Each Lease entered into after the date hereof shall be subject to the contrary hereinprior written approval of Lender; provided, Mortgagor shall not however, that so long as no Event of Default is continuing, Borrower may permit or allow Master Tenant to enter into any Lease a sublease which meets the Approved Sublease Parameters without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee Lender. Borrower shall pay the actual, out-of-pocket costs and expenses associated with Lender or its counsel’s review of any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee Lease for which Lender’s consent may declare each Lease to be prior or subordinate to required under this Mortgage, at Mortgagee’s optionSection 5.7.
(b) Mortgagor shallBorrower shall not, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; shall not permit the prepayment of any rents Master Tenant to, orally or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Leasewriting, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations Lender, alter, supplement, amend, modify or waive the terms or provisions of, renew, terminate, reduce rents or accept a surrender of Mortgagor under space under, extend or shorten the term of, or enter into a sublease or a subordination, nondisturbance and attornment agreement in connection with, any Lease (other than a sublease meeting the Approved Sublease Parameters) or the premises demised thereby (including any guaranty, letter of credit or other credit support with respect thereto); provided, however, that Borrower may permit Master Tenant to terminate a Lease subject to compliance with Section 5.7(i) below in connection with the decision to have the applicable Property become a Dark Property. Any amendment, modification, waiver, termination, assignment, pledge, release, hypothecation, rent reduction, space surrender or term shortening of any Lease (other than a sublease meeting the Approved Sublease Parameters) shall be subject to the prior written approval of Lender (each, a “Lease Modification”), and shall be at Borrower’s sole cost and expense. In addition, Borrower shall not, without the prior consent of Lender, surrender any interest of Borrower in the Master Lease and if Mortgagee becomes aware Borrower shall default in the performance or observance of any term, covenant or is notified by any Tenant condition of a failure the Master Lease on the part of Mortgagor Borrower and shall fail to so performcure the same prior to the expiration of any applicable cure period provided thereunder, Mortgagee mayLender shall have the right, but shall not be obligated tounder no obligation, without waiving to pay any sums and to perform any act or releasing Mortgagor from take any Obligation, remedy such failure, and Mortgagor agrees action as may be appropriate to repay upon demand cause all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate terms, covenants and conditions of the Master Lease on the part of Borrower to be performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Master Lease shall be kept unimpaired and free from default. Notwithstanding anything to the contrary contained herein, at any time Borrower has any right to consent to any item under the Master Lease or the space demised thereby, Borrower shall not take such action without the prior written consent of Lender (as set forth and defined other than with respect to a sublease meeting the Approved Sublease Parameters). If Borrower or Master Tenant shall deliver to Lender a copy of any notice of default under the Master Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in the Bond Lease)good faith, in reliance thereon.
(ec) For purposes Borrower shall, and shall cause Master Tenant to, (i) observe and punctually perform all the material obligations imposed upon the lessor under the Leases; (ii) enforce all of this Mortgagethe material terms, covenants and conditions contained in the Leases on the part of the lessee thereunder to be observed or performed, short of termination thereof except that Borrower and/or Master Tenant may terminate any Lease (other than the Master Lease) following a monetary or material non-monetary default thereunder by the respective Tenant which default has not been cured within thirty (30) days after the occurrence thereof; (iii) not collect any of the rents thereunder more than one month in advance; (iv) not execute any assignment of lessor’s interest in the Leases or associated rents other than the assignments of rents and leases under the Mortgages; (v) not cancel or terminate any guarantee of any of the Leases without the prior written consent of Lender other than as may be required pursuant to the terms thereof or in connection with the termination of the applicable Lease to which such guarantee relates; and (vi) other than with respect to a sublease meeting the Approved Sublease Parameters, provided no Event of Default is continuing, not permit any subletting of any space covered by a Lease or an assignment of the Tenant’s rights under a Lease, without the prior written consent of Lender, not to be unreasonably withheld, unless required by the terms of such Lease. Borrower shall, or shall have cause Master Tenant to, deliver to each new Tenant a Tenant Notice upon execution of such Tenant’s Lease, and promptly thereafter deliver to Lender a copy thereof and evidence of such Tenant’s receipt thereof. Provided that no Event of Default is continuing, Lender, at the following meanings:request of Borrower (and at Borrower’s sole cost and expense), shall enter into a subordination, attornment and non-disturbance agreement on Lender’s then standard form (with such modifications thereto as may be reasonably acceptable to Lender) or on such other form reasonably satisfactory to Lender, with respect to a sublease meeting the Approved Sublease Parameters entered into after the Closing Date in accordance herewith that expressly requires the delivery of a subordination, attornment and non-disturbance agreement.
Appears in 1 contract
Sources: Loan Agreement (Toys R Us Inc)
Leases. (a) Notwithstanding anything to the contrary herein, Mortgagor Seller shall not enter into or consent to any Lease or Lease amendment, modification, termination, expansion, renewal, lease assignment or sublease for the Property or premises therein without Mortgagee’s the prior written consentapproval of Buyer (other than consents to assignment or subleasing which in Seller’s reasonable judgment are required to be granted under the applicable Lease, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor provided that Seller shall provide Mortgagee Buyer with copies of all such consents), which approval may be withheld in Buyer’s sole discretion. Except as required in Seller’s reasonable judgment to prevent injury to natural persons or damage to property, Seller shall not exercise any default remedies under the Leases including commencing any legal action against a copy tenant or applying any security deposits or draw upon letters of each proposed Lease requiring credit, as applicable, without the prior written consent of Mortgagee Buyer, which may be withheld in Buyer’s sole discretion, provided that Seller may draw down a letter of credit any amount of rent in default past any applicable notice and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations cure period under the Lease or terminate or accept a surrender of the applicable Lease without the prior written consent of Mortgagee.
Buyer provided that Seller shall provide Buyer with notice of any such draw down at least 2 Business Days prior to the expiration of the Review Period. Buyer shall either approve or disapprove any proposed Lease modification, amendment, termination, expansion, renewal, assignment or sublease or exercise of remedies submitted to Buyer for approval within five (d5) If Mortgagor fails business days of receipt. Buyer’s failure to perform expressly approve or disapprove of any obligations such proposed Lease modification, amendment, termination, expansion, renewal, assignment or sublease or exercise of Mortgagor under remedies within said five (5) business day period shall conclusively constitute Buyer’s approval of same. Seller shall deliver to Buyer, promptly after receipt by Seller, a copy of all current written default and other material notices to and from tenants during the term of this Agreement. Buyer shall, at Close of Escrow, assume the obligation to pay and shall pay all Lease commissions, tenant improvement costs and other costs and expenses arising, or that shall have arisen, from or in connection with any Lease modification, amendment or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together lease assignment entered into with interest thereon from Buyer’s consent between the date incurred at an annual rate equal hereof and the Close of Escrow in accordance with this Section 7.3 and which first become due following the Close of Escrow, such obligation to nine and one half percent (9.5%) in excess survive the Close of the one month LIBOR Rate (as set forth and defined in the Bond Lease)Escrow.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Purchase and Sale Agreement (CIM Commercial Trust Corp)
Leases. (a) Notwithstanding anything to the contrary herein, Mortgagor a. Borrower shall not enter into any Lease new Leases or renewals of any Leases now existing or executed after the date hereof without Mortgagee’s the prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding Lender, provided that the proposed Tenant thereunder. Mortgagee may declare each Lease foregoing shall not apply to be prior or subordinate to this Mortgage, at Mortgagee’s optionthe Existing Leases other than the Major Lease.
b. Borrower (bi) Mortgagor shall, at its cost and expense, shall perform each obligation the obligations which Borrower is required to perform under the Leases; (ii) shall enforce the obligations to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due Tenants thereunder; (iii) shall promptly furnish to Lender any notice of default or termination received by Borrower from any Tenant, and any notice of default or termination given by Borrower to any Tenant; (iv) shall not permit the prepayment of collect any rents or other payments due Rents for more than one (1) month in advanceadvance of the time when the same shall become due, except for bona fide security deposits not in excess of an amount equal to two (2) months' rent; and (v) shall not permit enter into any Tenant to assign its ground Lease or sublet master Lease of any part of the premises covered Property; (vi) shall not further assign or encumber any Lease or the Rents (except as contemplated by its Leasethe Loan Documents); (vii) shall not, unless required to do so except with Lender's prior consent, cancel or accept surrender or termination of any Lease not permitted by the terms thereof thereof; and then only if such (viii) shall not, except with Lender's prior consent, modify or amend any Lease. Any action in violation of clause (v), (vi), (vii) or (viii) of this Section 4.1.10(b) shall be void at the election of Lender.
c. For the avoidance of doubt, the Major Lease and all renewals, modifications and amendments thereto shall be subject to Lender's prior written approval.
d. Borrower shall not permit or consent to any assignment does not work or sublease of the Major Lease (except that the Existing Leases, other than the Major Lease, may be subleases of the Major Lease) without Lender's prior written approval.
e. Borrower agrees to relieve bear and shall pay or reimburse Lender on demand for all reasonable costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by Lender in connection with the Tenant review of any liability for performance proposed Lease, any other matter requiring Lender's consent under this Section 4.1.10 or execution and delivery of its obligations thereunderany subordination, non-disturbance and attornment agreement in accordance with this Section 4.1.10.
f. Within ten (c10) If days after Lender's request, Borrower shall furnish to Lender a statement of all tenant security or other deposits and copies of all Leases not previously delivered to Lender, certified as being true, correct and complete.
g. All security deposits of Tenants, whether held in cash or any Tenant other form, shall default be held in compliance with all applicable Legal Requirements, shall not be commingled with any other funds of Borrower and, if cash, shall be deposited by Borrower in a separately designated account under its Borrower's control with Lender. After the occurrence of an Event of Default, Borrower shall, if permitted by the applicable Legal Requirements, cause all such security deposits (and any interest thereon) to be transferred to the Operating Account.
h. Borrower further covenants and agrees as follows:
i. that in the event any tenant under a Lease should become the subject of any proceeding under the Federal Bankruptcy Code or any other federal, state, or local statute that provides for the possible termination or rejection of the Lease, Mortgagor shall, Borrower covenants and agrees that in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under event the Lease or terminate or accept a surrender of the Lease is so rejected, no damage settlement shall be made without the prior written consent of Mortgagee.Lender;
(d) If Mortgagor fails ii. that Borrower will request that any check in payment of damages for rejection or termination of the Lease will be made payable both to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, Borrower and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying Lender;
iii. Borrower hereby assigns any such failurepayment to Lender and further covenants and agrees that upon request of Lender, together with interest thereon from it will duly endorse to the date incurred at an annual rate equal order of Lender any such check, the proceeds of which will be applied to nine and one half percent (9.5%) in excess any portion of the one month LIBOR Rate (indebtedness secured by the Security Instrument in such manner as set forth and defined in the Bond Lease)Lender may elect.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (a) Notwithstanding anything Borrower shall furnish Lender with executed copies of all Leases, together with a detailed breakdown of income and cost associated therewith. All new Leases and renewals or amendments of Leases must (i) be entered into on an arms-length basis with Tenants that are not affiliates of Borrower and whose identity and creditworthiness is appropriate for tenancy in property of comparable quality, (ii) provide for rental rates and other economic terms that, taken as a whole, are at least equivalent to then-existing market rates, based on the applicable market, and otherwise contain terms and conditions that are commercially reasonable, (iii) have an initial term of not more than 10 years, (iv) not have or reasonably be expected to result in a Material Adverse Effect, (v) be expressly subject and subordinate to the contrary hereinMortgage and contain provisions for the agreement by the Tenant thereunder to attorn to Lender and any purchaser at a foreclosure sale, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease such attornment to be prior or subordinate self-executing and effective upon acquisition of title to the Property by any purchaser at a foreclosure sale and (vi) require the Tenant thereunder to execute and deliver to Borrower an estoppel certificate addressing the issues set forth in Section 9.16(b) of this MortgageAgreement (in each case, at Mortgagee’s optionunless Lender consents to such Lease in its sole discretion).
(b) Mortgagor shallAll new Leases that are Major Leases, at its cost and expenseall terminations, perform each obligation to be performed by the landlord renewals and amendments of Major Leases, and any surrender of rights under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Major Lease, unless required shall be subject to do so by the terms thereof prior written consent of Lender. If Lender shall fail to respond to Borrower’s request for such consent within five (5) Business Days of Lender’s receipt thereof, Borrower may deliver to Lender a second request for consent stating in bold and then only if capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN (10) BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such assignment does not work to relieve the Tenant request within ten (10) Business Days of any liability for performance Lender’s receipt of its obligations thereundersuch second request, such request shall be deemed approved.
(c) If any Tenant shall default under its Lease, Mortgagor Borrower shall, and shall cause Operating Lessee to, (i) observe and punctually perform all the material obligations imposed upon the lessor under the Leases; (ii) enforce all of the material terms, covenants and conditions contained in the ordinary course Leases on the part of businessthe lessee thereunder to be observed or performed, exercise sound business judgment with respect to such defaultshort of termination thereof, but except that the lessor may terminate any Lease following a material default thereunder by the respective Tenant; (iii) not discount, compromise, forgive collect any of the rents thereunder more than one month in advance; (iv) not execute any assignment of lessor’s interest in the Leases or waive claims or discharge associated rents other than the Tenant from its obligations assignment of rents and leases under the Lease Mortgage; (v) not cancel or terminate or accept a surrender any guarantee of any of the Lease Major Leases without the prior written consent of MortgageeLender; and (vi) not permit any subletting of any space covered by a Lease or an assignment of the Tenant’s rights under a Lease, except in strict accordance with the terms of such Lease. Borrower shall, or shall cause Operating Lessee to, deliver to each new Tenant a Tenant Notice upon execution of such Tenant’s Lease, and promptly thereafter deliver to Lender a copy thereof and evidence of such Tenant’s receipt thereof.
(d) If Mortgagor fails to perform Security deposits of Tenants under all Leases, whether held in cash or any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so performother form, Mortgagee may, but shall not be obligated commingled with any other funds of Borrower or Operating Lessee and, if cash, shall be deposited by Borrower or Operating Lessee in an account at such commercial or savings bank as may be reasonably satisfactory to Lender, which account shall be pledged to Lender. Borrower shall, or shall cause Operating Lessee to, without waiving or releasing Mortgagor maintain books and records of sufficient detail to identify all security deposits of Tenants separate and apart from any Obligationother payments received from Tenants. Any bond or other instrument that Borrower or Operating Lessee is permitted to hold in lieu of cash security deposits under any applicable Legal Requirements shall be maintained in full force and effect unless replaced by cash deposits as described above, remedy shall be issued by an institution reasonably satisfactory to Lender, shall (if not prohibited by any Legal Requirements) name Lender as payee or mortgagee thereunder (or at Lender’s option, be fully assignable to Lender) or may name Borrower or Operating Lessee as payee thereunder so long as such failurebond or other instrument is pledged to Lender as security for the Indebtedness and shall, in all respects, comply with any applicable Legal Requirements and Mortgagor agrees otherwise be reasonably satisfactory to repay Lender. Borrower shall, upon demand all sums incurred by Mortgagee Lender’s request, provide Lender with evidence reasonably satisfactory to Lender of Borrower’s and Operating Lessee’s compliance with the foregoing. During the continuance of any Trigger Period or Event of Default, Borrower shall, upon Lender’s request, cause to be deposited with Lender in remedying any such failure, together with interest thereon from the date incurred at an annual rate Eligible Account pledged to Lender an amount equal to nine and one half percent (9.5%) in excess the aggregate security deposits of the one month LIBOR Rate Tenants (as set forth and defined any interest theretofore earned on such security deposits and actually received by Borrower or Operating Lessee) that Borrower and Operating Lessee had not returned to the applicable Tenants or applied in accordance with the Bond terms of the applicable Lease).
(e) For purposes Borrower shall cause to be promptly delivered to Lender a copy of this Mortgageeach written notice from a Tenant under any Major Lease claiming that Borrower or Operating Lessee is in default in the performance or observance of any of the material terms, covenants or conditions thereof. Borrower shall cause each Major Lease executed after the following terms Closing Date to which Borrower or Operating Lessee is a party to provide that any Tenant delivering any such notice shall have the following meanings:send a copy of such notice directly to Lender.
Appears in 1 contract
Leases. (a) Notwithstanding anything to Mortgagor represents and warrants that, except as disclosed in the contrary hereinPerfection Certificate, as of the Effective Date Mortgagor has not entered into any Material Space Leases other than the Shop Leases and the Food and Beverage Leases (each as hereinafter defined).
(b) Mortgagor shall not enter into any Space Leases with respect to the Site except (i) Space Leases approved by the Mortgagee (which approval shall not be unreasonably withheld, conditioned or delayed, and which shall be deemed given if Mortgagee has not responded to Mortgagor’s request for such approval within ten (10) Business Days after the date on which the Mortgagor has delivered a copy of the proposed Space Lease to Mortgagee), (ii) shop or similar written leases reasonably necessary and consistent with the operation of a hotel/casino and related improvements (“Shop Leases”), or (iii) written leases or other agreements relating to the operation of food and beverage facilities at hotels and related facilities located on the Site, at rents, with tenant concessions and allowances, and for a term that is not more favorable to the tenant thereunder than those generally available for similar space in real estate similar in type, quality and location to the Site entered into by unrelated third parties (“Food and Beverage Leases”). No Material Space Lease, except the Shop Leases and Food and Beverage Leases, shall be modified, amended or supplemented in any material respect without Mortgagee’s prior written consent, which consent shall not be unreasonably withheld or delayed, and which shall furnish be deemed given if Mortgagee has not responded to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor’s request for such approval within ten (10) Business Days after the date on which the Mortgagor shall provide has delivered to Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunderamendment.
(c) If any Tenant shall default under its LeaseAfter an Event of Default, Mortgagor shall, in shall deliver to Mortgagee the ordinary course executed originals of business, exercise sound business judgment all Material Space Leases with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under Fee Site and any Space Leases with respect to the Lease or terminate or accept a surrender of the Lease without the prior written consent of MortgageeLeasehold Site.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (ai) Notwithstanding anything The Property is not subject to any Leases other than the Specified Tenant Lease, and the demised premises under the Specified Tenant Lease constitute the entirety of the Land and the Improvements. The initial term of the Specified Tenant Lease does not expire prior to the contrary hereindate that is fifteen (15) years following the First Amendment Date, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish subject to Mortgagee, upon execution, a complete and fully executed copy the rights of each Specified Tenant under Section 13 of the Specified Tenant Lease. Mortgagor shall provide Mortgagee with a copy Specified Tenant is required to commence payment of each proposed base rental payments under the Specified Tenant Lease requiring on the consent Commencement Date (as defined in the Specified Tenant Lease), which is the date of Mortgagee mutual execution and with any information requested delivery of the Specified Tenant Lease by Mortgagee regarding Borrower and Specified Tenant (except during the proposed Rent Abatement Period (as defined in the Specified Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s optionLease) as expressly set forth in Section 4(D) thereof).
(bii) Mortgagor shallWith respect to each Lease (including, at without limitation, the Specified Tenant Lease), (A) Borrower is the owner of landlord’s interest in such Lease, (B) other than with respect to Permitted Encumbrances, no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of such Lease, (C) such Lease is in full force and effect, the tenants thereunder have accepted possession of and are in occupancy of all of their respective demised premises, are open for business, and are paying (except, with respect to Specified Tenant only, during the Rent Abatement Period (as defined in the Specified Tenant Lease) as expressly set forth in Section 4(D) thereof) full, unabated rent, and no tenant under such Lease has given Borrower any notice of its cost intent to terminate such Lease or vacate the leased premises (and, except with respect to the termination of the Master Lease as described in Section 3 of the First Amendment, Borrower has no knowledge that any such tenant intends to so terminate or vacate), (D) Borrower has not received written notice from any tenant under such Lease claiming that Borrower (or any prior landlord) is in default thereunder, and expenseto the knowledge of Borrower there are no defaults under such Lease by any party thereto, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for (E) no Revenue has been paid more than one (1) month in advance; advance of its due date, (F) all work to be performed by Borrower (or any prior landlord) under such Lease has been performed as required and not permit has been accepted by the applicable tenant, (G) any Tenant to assign its Lease payments, free rent, partial rent, rebate of rent or sublet the premises covered by its Leaseother payments, unless credits, allowances or abatements required to do so be given by the terms thereof and then only if Borrower to any tenant has already been received by such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
tenant (c) If any Tenant shall default under its Leaseexcept, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such defaultSpecified Tenant only, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender abatement
(g) Section 5.1.1(b)(i)(G) of the Lease without Loan Agreement is hereby deleted in its entirety from the prior written consent of Mortgagee.
(d) If Mortgagor fails Loan Agreement and replaced with the following provision: “cease to perform any obligations of Mortgagor under any Lease operate the Property, or if Mortgagee becomes aware of or is notified by any Tenant of permit the Property to cease to be operated, exclusively as a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, life sciences research related manufacturing and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, office facility together with interest thereon from other appurtenant and related uses (other than temporary cessation in connection with any continuous and diligent
1.1 (except for the date incurred at an annual rate equal definitions of “Borrower Party”, “Complete”, “Master Lease”, “Master Lease Payments”, “Master Lease SNDA”, “Master Tenant” and “Third Party Sale”), Section 2.1.6(x), Section 2.3.1(f), Section 3.1(a), Section 3.1(b)(ix), Section 3.2.1(c), Section 3.2.2.(c), Section 4.1.2(a), Section 5.1.1(f)(iv)(B)(III), Section 5.1.2(h)(i), Section 6.4(b)(iiii), Section 8.3(xi) and Exhibit E, all references to nine “Master Lease” are hereby deleted in their entirety and one half percent (9.5%) replaced with “Specified Tenant Lease” and all references to “Master Tenant” are hereby deleted in excess of the one month LIBOR Rate (as set forth their entirety and defined in the Bond Lease)replaced with “Specified Tenant”.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Loan Agreement (Instil Bio, Inc.)
Leases. (a) Notwithstanding anything Loan Parties shall not materially amend, materially modify, terminate, consent to the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
assignment (b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by under the terms applicable Material Lease and excluding any assignment pursuant to any Loan Document) or surrender of, or grant a waiver of any material provision or right of Loan Parties under, or otherwise materially supplement any Material Lease or any guaranty thereof, any Signage License (subject to specific provisions regarding Signage Licenses in this sub-paragraph below, and Article XI hereof) or any guaranty thereof and then only if such assignment or subject to Section 6.10(b), any Minor Lease or any guaranty thereof (each, a “Material Lease Action”) without Agent’s prior consent or enter into a Material Lease, a Signage License or any Minor Lease that does not work satisfy the requirements of clause (ii) of Section 6.10(b) without Agent’s prior consent, which consent shall not be unreasonably withheld, conditioned or delayed. Prior to relieve seeking Agent’s consent to enter into any Material Lease or Signage License (subject to specific provisions regarding Signage Licenses in this sub-paragraph below, and Article XI hereof), Loan Parties shall deliver to Agent a copy of such proposed lease or license (a “Proposed Material Lease”) which Proposed Material Lease shall be in form and substance reasonably acceptable to Agent. All Leases shall provide for (y) automatic self-operative subordination to the Tenant Mortgage and, at Agent’s option, (1) attornment to Agent and (2) the unilateral right by Agent, at the option of Agent, to subordinate the Lien of the Mortgage to the Lease and (z) state that any cancellation, surrender, or amendment of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of MortgageeAgent shall be voidable by Agent. Notwithstanding anything to the contrary in this Agreement with respect to a Proposed Material Lease which is a Signage License or a Material Lease Action with respect to a Signage License, Agent shall approve the same provided (A) the conditions set forth in the preceding sentence are satisfied, (B) such Proposed Material Lease or a Material Lease Action results in increased cash flow to Borrower, (C) the terms of such modified Proposed Material Lease or Material Lease Action are not materially less favorable, in Agent’s reasonable determination, as the Signage License in effect on the Closing Date, and (D) if any such Proposed Material Lease or Material Lease Action requires capital improvements to the signs, such improvements shall be at the sole cost and expense of the licensee under such Signage Lease or of Guarantor and such improvements shall be done in a good and workmanlike manner and shall be completed in accordance with all Legal Requirements in all materials respects and, subject to the Permitted Encumbrances, free and clear of Liens or claims for materials supplied or for labor or services performed in connection with such repairs and alterations or otherwise. Subject to clause (h) below, Agent shall approve or disapprove each Proposed Material Lease or Material Lease Action (in each case other than a Signage License) for which Agent’s approval is required under this Loan Agreement within ten (10) Business Days of the submission by Loan Parties to Agent of a written request for such approval, accompanied by a final copy of the Proposed Material Lease, non-conforming Minor Leases or Material Lease Action. If requested by Loan Parties, Agent will grant conditional approvals of Proposed Material Leases, non-conforming Minor Leases or proposed Material Lease Actions at any stage of the leasing process, including from initial “term sheet” through negotiated lease drafts, provided that Agent shall retain the right to disapprove any such Proposed Material Lease, non-conforming Minor Lease or proposed Material Lease Action, if subsequent to any preliminary approval material changes are made to the terms previously approved by Agent or additional material terms are added that had not previously been considered and approved by Agent in connection with such Proposed Material Lease, non-conforming Minor Lease or proposed Material Lease Action. Notwithstanding anything set forth herein to the contrary, Agent’s consent shall not be required for any renewal, extension, expansion, termination, assignment or subletting of or any action with respect to, a Lease unilaterally exercised by the tenant thereunder in accordance with the provisions of such Lease. Without limiting this Section 6.10(a), Loan Parties shall deliver to Agent a copy of any Material Lease and Signage License and any amendment, modification or supplement thereof within ten (10) Business Days after the execution and delivery thereof.
(db) If Mortgagor fails Notwithstanding the provisions of Section 6.10(a) above, provided that no Event of Default is continuing, Leases and any actions with respect thereto shall not be subject to the prior approval of Agent provided (i) the proposed Lease is not a Signage License and would be a Minor Lease or the existing Lease is (or, as amended, modified or renewed, if applicable, would still be) a Minor Lease, and (ii)(w) with respect to a proposed Lease only, the proposed Lease shall be written substantially in accordance with a form of Lease used for other Lessees which shall have been approved by Agent, subject in each case to any commercially reasonable changes (given the prevailing market conditions) made in the course of negotiation with the applicable tenant, (y) with respect to a proposed Lease or an extension of an existing Minor Lease, the tenant under the proposed Lease or existing Minor Lease shall be creditworthy (or there shall be a creditworthy guarantor or a commercially reasonable Security Deposit) and (z) the Minor Lease as amended or modified or the renewal of the Minor Lease or series of leases or proposed lease or series of leases: (A) shall provide for net effective rental rates comparable to existing local market rates as reasonably determined by Agent and (B) shall provide for automatic self-operative subordination to the Mortgage and, at Agent’s option, (x) attornment to Agent and (y) the unilateral right by Agent, at the option of Agent, to subordinate the Lien of the Mortgage to the Minor Lease.
(c) Each Loan Party shall perform its obligations under the Leases in all material respects and shall not permit any obligations Lessee to prepay Rents pursuant to the terms of Mortgagor any Lease other than the usual prepayment of Rent as would result from the acceptance on the first day of each month of the Rent for the ensuing month, according to the terms of any Leases. Loan Parties shall promptly (i) notify Agent, in writing, of any material defaults by any Lessee or Lease guarantor under any Lease or if Mortgagee becomes after Loan Parties become aware of or is notified by such defaults and (ii) deliver to Agent a copy of all termination notices, default notices, notices claiming any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor offset rights and all other material notices from any Obligation, remedy such failure, and Mortgagor agrees Lessee or Lease guarantor to repay upon demand all sums incurred by Mortgagee in remedying Loan Parties or from Loan Parties to any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)Lessee or Lease guarantor.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (a) Notwithstanding anything to the contrary herein, The Mortgagor shall not enter into comply with and observe its obligation as landlord under all leases affecting the Premises or any Lease part or parts thereof. Except as may be specified below, no existing or future lease which affects the Premises, or any part or parts thereof, or any facilities or business located or operated thereon or therefrom, shall be canceled, surrendered, or modified without Mortgagee’s the prior written consent, and shall furnish to consent of Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide notify the Mortgagee with immediately or any default of Mortgagor asserted by any tenant under such a copy lease. If Mortgagor fails to cure such default on its part, as landlord under any such lease, then Mortgagor expressly authorizes Mortgagee, at its option, to cure such default in order to prevent termination of each proposed Lease requiring any such lease by any such tenant, and the consent leases shall set forth the foregoing provisions. If, by reason of Mortgagee default of Mortgagor in the performance of any such lease, the tenant has the right to cancel such lease or to claim any diminution of or offset against future rents, then, at the option of Mortgagee, such default shall be a default under the Note and with any information requested by Mortgagee regarding the proposed Tenant thereunderthis Mortgage. Mortgagee may declare each Lease The Mortgagor upon request, from time to be prior or subordinate to time, but not more often than annually unless a default shall have occurred under this Mortgage, at Mortgagee’s optionwill furnish to the Mortgagee in such reasonable detail as the Mortgagee may request, certified by the Mortgagor, copies of all leases relating to the Premises, and on demand, the Mortgagor will furnish to the Mortgagee executed counterparts of any and all such leases. Further, the Mortgagor, upon request, will furnish to the Mortgagee information relative to the occupancy and vacancy rates of the Premises.
(b) The standard from of space lease used by Mortgagor in leasing space in the Premises shall be subject to Mortgagee's prior approval. Mortgagor shall use only such approved form of lease in leasing space in the Premises and any material deviations from and or amendments to such form lease shall be subject to Mortgagee's approval. Furthermore, all extensions and other modifications of future or existing leases shall comply with the foregoing provisions of this paragraph unless the prior consent of Mortgagee is given to each such extension or modification. Any and all leases shall, at its cost by their terms, be subject to and expensesubordinate to this Mortgage and shall be assigned, perform each obligation in form for recording, to be performed by Mortgagee, pursuant to the landlord under each Lease; not borrow againstAssignment of Leases.
(c) Notwithstanding anything in this Article 10 to the contrary, pledge Mortgagor agrees that it will not, without the written consent of the Mortgagee, assign the rents, issues or further assign profits, or any part thereof, from the Premises, receive or collect rents from any tenant, sub-tenant, undertenant, or other payments due thereunder; not permit the prepayment occupant of any rents or other payments due part of the Premises for a period of more than one (1) month in advance; and not permit , nor will Mortgagor grant any Tenant concessions to assign its Lease any of the foregoing persons or sublet parties for more than one (1) month's rent (which must be at the premises covered by its Leasefront end of a lease) nor shall any lease be modified, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of entered, terminated or extended in any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, other way that would reduce monthly rent thereunder except in the ordinary course of businessbusiness and in no event shall the sum total of all such concessions and other modifications reduce the gross rents for the Premises to less than the most recent fiscal period, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of the Mortgagee.
(d) If Mortgagor fails authorizes Mortgagee at its option to perform foreclose this Mortgage subject to the rights of any obligations tenants of Mortgagor under the Premises, and the failure to make any Lease or if Mortgagee becomes aware of or is notified by such tenants parties defendant to any Tenant of a failure on the part of Mortgagor such foreclosure proceeding and to so perform, Mortgagee may, but shall foreclose their rights will not be obligated toasserted by Mortgagor as a defense to any proceeding instituted by Mortgagee to collect the indebtedness secured hereby or any deficiency remaining unpaid after the foreclosure sale of the Premises, without waiving or releasing it being expressly understood and agreed, however, that nothing herein contained shall prevent Mortgagor from asserting in any Obligationproceeding disputing the amount of the deficiency or the sufficiency of any bid at such foreclosure sale, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying that any such failure, together with interest thereon from tenancies adversely affect the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess value of the one month LIBOR Rate (as set forth and defined in the Bond Lease)Premises.
(e) For purposes Any agreement entered into by the Mortgagor, its representatives, agents, successors or assigns, which provides for the payment of leasing commissions, (i) shall provide that the obligation to pay such leasing commissions will not be enforceable against any party other than the party who entered into such agreement, (ii) shall be subordinate to this Mortgage, and (iii) shall not be enforceable against Mortgagee or its successors by foreclosure, deed in lieu of foreclosure or by assignment of this Mortgage. The Mortgagors shall, upon the following terms request of the Mortgagee, furnish satisfactory evidence to the Mortgagee of the Mortgagor's compliance with the provisions of this Section.
(f) At the sole option of Mortgagee, this Mortgage shall have become subject and subordinate, in whole or in part (but not with respect to priority entitlement to any award in condemnation), to any and all leases of any part of the following meanings:Premises upon the execution by Mortgagee and recording thereof, at any time hereinafter, in the office of the recording of such documents for the locality in which the Premises are located, of a unilateral declaration to that effect.
Appears in 1 contract
Sources: Mortgage and Security Agreement (Menlo Acquisition Corp)
Leases. (a) Notwithstanding anything to the contrary herein, except for those Leases listed in Exhibit B attached hereto and made a part hereof (the “Permitted Leases”), Mortgagor shall not enter into any Lease without Mortgagee’s 's prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s 's option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one thirty (130) month days in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of MortgageeLease.
(d) If Mortgagor ▇▇▇▇▇▇▇▇▇ fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor ▇▇▇▇▇▇▇▇▇ agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR highest Default Rate (as set forth and defined in the Bond LeaseLoan Agreement).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (a) Notwithstanding anything All Leases and all renewals of Leases executed after the date hereof shall (i) provide for rental rates comparable to existing local market rates for similar properties, (ii) be on commercially reasonable terms, (iii) provide that such Lease is subordinate to the contrary hereinMortgage encumbering the Individual Property and that the lessee will attorn to Lender and any purchaser at a foreclosure sale and (iv) not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents. All Major Leases and all renewals, Mortgagor amendments and modifications thereof executed after the date hereof shall be subject to Lender’s prior approval, which approval shall not enter into any be unreasonably withheld or delayed. Lender shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement in the form annexed as Schedule IV to Tenants under future Major Lease without Mortgagee’s prior written consentapproved by Lender promptly upon request with such commercially reasonable changes as may be requested by Tenants, from time to time, and shall furnish which are reasonably acceptable to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s optionLender.
(b) Mortgagor shallBorrower (i) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) shall enforce the terms, at its cost covenants and expense, perform each obligation conditions contained in the Leases upon the part of the lessee thereunder to be observed or performed by in a commercially reasonable manner; provided, however, Borrower shall not terminate or accept a surrender of a Major Lease without Lender’s prior approval, not to be unreasonably withheld or delayed in the landlord event of a material default under each a Major Lease; (iii) shall not borrow against, pledge or further assign collect any rents or other payments due thereunder; not permit of the prepayment of any rents or other payments due for Rents more than one (1) month in advanceadvance (other than security deposits); (iv) shall not execute any assignment of lessor’s interest in the Leases or the Rents (except as contemplated by the Loan Documents and the Guaranty Security Documents); (v) shall not alter, modify or change any Major Lease so as to change the amount of or payment date for rent, change the expiration date, grant any option for additional space or term, materially reduce the obligations of the lessee or increase the obligations of lessor without Lender’s prior written approval, such approval not to be unreasonably withheld or delayed if no Trigger Event has occurred and is continuing; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease(vi) shall hold all security deposits under all Leases in accordance with Legal Requirements. Upon request, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant Borrower shall furnish Lender with executed copies of any liability for performance of its obligations thereunderall Leases.
(c) Notwithstanding anything to the contrary contained in this Section 4.1.9:
(i) whenever Lender’s approval or consent is required pursuant to the provisions of this Section 4.1.9, Borrower shall have the right to submit a term sheet of such transaction to Lender for Lender’s approval, such approval not to be unreasonably withheld or delayed. Any such term sheet submitted to Lender shall set forth all material terms of the proposed transaction including, without limitation, identity of tenant, square footage, term, rent, rent credits, abatements, work allowances and tenant improvements to be constructed by Borrower. Lender shall use good faith efforts to respond within ten (10) Business Days after Lender’s receipt of the Borrower’s written request for approval or consent of such term sheet. If Lender fails to respond to such request within ten (10) Business Days, and the Borrower sends a second request containing a legend in bold letters stating that Lender’s failure to respond within five (5) Business Days shall be deemed consent or approval, Lender shall be deemed to have approved or consented to such term sheet if Lender fails to respond to such second written request before the expiration of such five (5) Business Day period;
(ii) whenever Lender’s approval or consent is required pursuant to the provisions of this Section 4.1.9 for any Tenant matter that Lender has not previously approved a term sheet pursuant to Section 4.1.9(c)(i) above, Lender shall default under its use good faith efforts to respond within ten (10) Business Days after Lender’s receipt of Borrower’s written request for such approval or consent. If Lender fails to respond to such request within ten (10) Business Days, and Borrower sends a second request containing a legend in bold letters stating that Lender’s failure to respond within ten (10) Business Days shall be deemed consent or approval, Lender shall be deemed to have approved or consented to the matter for which Lender’s consent or approval was sought if Lender fails to respond to such second written request before the expiration of such ten (10) Business Day period;
(iii) whenever Lender’s approval or consent is required pursuant to the provisions of this Section 4.1.9 for any matter that Lender has previously approved a term sheet pursuant to Section 4.1.9(c)(i) above, Lender shall use good faith efforts to respond within five (5) Business Days after Lender’s receipt of Borrower’s written request for such approval or consent. If Lender fails to respond to such request within five (5) Business Days, and Borrower sends a second request containing a legend in bold letters stating that Lender’s failure to respond within five (5) Business Days shall be deemed consent or approval, Lender shall be deemed to have approved or consented to the matter for which Lender’s consent or approval was sought if Lender fails to respond to such second written request before the expiration of such five (5) Business Day period, provided that there have been no material deviations from the term sheet and that the aggregate economics of the transaction are no less favorable to Borrower than as set forth in the term sheet;
(iv) in the event that Lender shall have approved (or be deemed to have approved) a term sheet submitted by Borrower with respect to a certain Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment Lender shall not withhold its approval or consent with respect to such defaultLease on the basis of any provisions of such Lease dealing with the items contained in the approved term sheet; and
(v) Borrower shall have the right, but may not discountwithout the consent or approval of Lender in any instance, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or to terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or that is notified by any Tenant of not a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Major Lease).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Loan Agreement (Wells Real Estate Investment Trust Inc)
Leases. (a) Notwithstanding anything To the best of Borrower’s knowledge, the Property is not subject to any Leases other than the Leases described in Schedule I attached hereto and made a part hereof. Borrower is the owner and lessor of landlord’s interest in the Leases. To the best of Borrower’s knowledge, no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the contrary hereinprovisions of the Leases. To the best of Borrower’s knowledge and except as otherwise disclosed to Lender on Schedule I attached hereto or in any tenant estoppel certificate delivered to Lender, Mortgagor shall not enter into the current Leases are in full force and effect and, there are no material defaults by Borrower or, any Lease without Mortgagee’s prior written consenttenant under any Lease, and shall furnish to Mortgageeand, upon executionthere are no conditions that, a complete and fully executed copy with the passage of each time or the giving of notice, or both, would constitute material defaults under any Lease. Mortgagor shall provide Mortgagee with a copy To the best of each proposed Lease requiring the consent of Mortgagee Borrower’s knowledge and with except as otherwise disclosed to Lender on Schedule I attached hereto or in any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease tenant estoppel certificate delivered to be prior or subordinate to this MortgageLender, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for no Rent has been paid more than one (1) month in advance; advance of its due date. To the best of Borrower’s knowledge and not permit except as otherwise disclosed to Lender on Schedule I attached hereto or in any Tenant tenant estoppel certificate delivered to assign its Lender, there are no offsets or defenses to the payment of any portion of the Rents. To the best of Borrower’s knowledge and except as otherwise disclosed to Lender on Schedule I attached hereto or in any tenant estoppel certificate delivered to Lender, all work to be performed by Borrower as of the date of this Agreement under each Lease has been performed as required and has been accepted by the applicable tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any tenant has already been received by such tenant. To the best of Borrower’s knowledge and except as provided in the Loan Documents or as otherwise disclosed to Lender on Schedule I attached hereto or in any tenant estoppel certificate delivered to Lender, there has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein which is still in effect. To the best of Borrower’s knowledge and except as otherwise disclosed to Lender on Schedule I attached hereto or in any tenant estoppel certificate delivered to Lender, no tenant under any Lease has sublet all or any portion of the premises covered demised thereby, no such tenant holds its leased premises under sublease, nor does anyone except such tenant and its employees occupy such leased premises. To the best of Borrower’s knowledge and except as otherwise disclosed to Lender on Schedule I attached hereto or in any estoppel certificate delivered to Lender, no tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. To the best of Borrower’s knowledge and except as otherwise disclosed to Lender on Schedule I attached hereto or in any tenant estoppel certificate delivered to Lender or in the Leases, no tenant under any Lease has any right or option for additional space in the Improvements. To the best of Borrower’s knowledge, no Hazardous Materials have been disposed, stored or treated by any tenant under any Lease on or about the leased premises nor does Borrower have any knowledge of any tenant’s intention to use its Leaseleased premises for any activity which, unless required to do so by directly or indirectly, involves the terms thereof use, generation, treatment, storage, disposal or transportation of any Hazardous Materials, except those that are both (i) in compliance with current Environmental Laws and then only with permits issued pursuant thereto (if such assignment does permits are required), and (ii) either (A) in amounts not work in excess of that necessary to relieve operate, clean, repair and maintain the Tenant of any liability Property or each tenant’s respective business at the Property as set forth in their respective Leases, (B) held by a tenant for performance of sale to the public in its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect or (C) fully disclosed to such default, but may not discount, compromise, forgive or waive claims or discharge and approved by Lender in writing pursuant to the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of MortgageeEnvironmental Report.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Loan Agreement (Piedmont Office Realty Trust, Inc.)
Leases. (a) Notwithstanding anything Mortgagor warrants and represents that (i) the schedule of leases set forth in the Assignment of Leases and Rents executed by Mortgagor and delivered to Mortgagee in connection with the transaction of which this Mortgage is a part is true, correct and complete, (ii) all leases described in said schedule are presently in effect, and (iii) to the contrary hereinbest of Mortgagor's knowledge, Mortgagor shall not enter into no default exists under any Lease without Mortgagee’s prior written consent, and shall furnish to such lease (other than any default disclosed in said schedule). Upon request of Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy current list of all leases then affecting the Mortgaged Property. Mortgagor shall keep, perform and observe its obligations as landlord under all leases now or hereafter affecting all or any part of the Mortgaged Property, and Mortgagor shall use reasonable efforts to require each proposed Lease requiring the consent tenant under any such lease to keep, perform and observe its obligations as tenant under such lease. Upon request by Mortgagee, Mortgagor shall promptly furnish to Mortgagee original or certified copies of Mortgagee all such leases and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s optionall amendments thereto.
(b) Mortgagor shallshall not, at its cost and expensewithout the prior written consent of Mortgagee, perform each obligation to be performed by accelerate the landlord under each Lease; not borrow against, pledge payment of rent or further assign any rents or other payments due thereunder; not permit the prepayment accept payment of any rents or other payments due for rent more than one (1) month in advance; and not permit , grant any Tenant to assign its Lease reduction, deferral or sublet abatement of rent payable under any such lease, grant any rights of termination or cancellation in favor of the premises covered by its Leasetenant under any such lease, unless required to do so by shorten the term of any such lease, or change the terms thereof and then only if or renewal or extension provision under any such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunderlease.
(c) If The assignment contained in paragraph (H) of the section of this Mortgage entitled "The Mortgaged Property" shall not be deemed to impose upon Mortgagee any Tenant of the obligations, duties or liabilities of Mortgagor under or in respect of any lease (including, without limitation, any liability under any covenant of quiet enjoyment in the event that any tenant shall default under its Leasehave been barred and foreclosed by any foreclosure of this Mortgage, or by any other transfer of title to the Mortgaged Property in extinguishment of all or any part of the Indebtedness, of all right, title and interest in and to all or any part of the Mortgaged Property). Upon request by Mortgagee, Mortgagor shallfrom time to time shall specifically assign to Mortgagee as additional security for the Indebtedness, by a written instrument approved by Mortgagee, all right, title and interest of Mortgagor in the ordinary course of business, exercise sound business judgment with respect and to such default, but may not discount, compromise, forgive any and all leases now or waive claims hereafter affecting all or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender any part of the Lease without Mortgaged Property, together with all security therefor and all money payable thereunder, subject to the prior written consent conditional permission given to Mortgagor to collect and use the rents, income and other benefits arising under any such lease as provided above. Mortgagor also shall execute and deliver to Mortgagee any notice, financing statement or other document required by Mortgagee to perfect the foregoing assignment as to any such lease. The provisions of Mortgageethis Section 1.12 shall be subject to the provisions of said paragraph (H).
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated toenter into any new lease for the Property without the prior approval of such lease by Mortgagee, without waiving provided, however, that Mortgagee notify Mortgagor of it approval or releasing Mortgagor from any Obligation, remedy disapproval within ten (10) days of such failure, and Mortgagor agrees proposed lease being submitted to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)Mortgagee.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Open End Mortgage Deed and Security Agreement (Griffin Land & Nurseries Inc)
Leases. (a) Notwithstanding anything Borrower shall furnish Lender with executed copies of all Leases. All new Leases and renewals or amendments of Leases must (i) be entered into on an arms-length basis with Tenants that are not Affiliates of Borrower and whose identity and creditworthiness is appropriate for tenancy in property of comparable quality, (ii) provide for rental rates and other economic terms that, taken as a whole, are at least equivalent to then-existing market rates, based on the applicable market, and otherwise contain terms and conditions that are commercially reasonable, (iii) have an initial term of not more than 10 years, (iv) not reasonably be expected to result in a Material Adverse Effect and (v) be subject and subordinate to the contrary hereinMortgage and contain provisions for the agreement by the Tenant thereunder to attorn to Lender and any purchaser at a foreclosure sale subject to Lender’s agreement not to disturb such Tenant’s use of the applicable demised premises absent an event of default by such Tenant under its applicable Lease, Mortgagor such attornment to be self-executing and effective upon acquisition of title to the Property by any purchaser at a foreclosure sale. Lender, at the request of Borrower (and at Borrower’s sole cost and expense), shall not enter into a subordination, attornment and non-disturbance agreement on Lender’s then standard form (with such modifications thereto as may be reasonably acceptable to Lender) or on such other form reasonably satisfactory to Lender and Borrower, with respect to any Major Lease without Mortgagee’s prior written consententered into after the Closing Date that expressly requires the delivery of a subordination, attornment and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s optionnon-disturbance agreement.
(b) Mortgagor shallAny Lease that does not conform to the standards set forth in Section 5.7(a) shall be subject to the prior written consent of Lender, which consent shall not be unreasonably withheld, delayed or conditioned. In addition, all new Leases that are Major Leases, and all terminations, renewals and amendments of Major Leases, and any surrender of rights under any Major Lease (except in accordance with the terms of such Major Lease), shall be subject to the prior written consent of Lender, which consent shall not be unreasonably withheld, delayed or conditioned. With respect to every consent or approval or waiver of the Lender required or requested under this Section 5.7(b), such consent shall be deemed given if the following conditions are met:
(i) no Event of Default shall have occurred and be continuing (either at its cost the date of any notices specified below or as of the effective date of any deemed approval);
(ii) Borrower shall have sent Lender an email request for approval with respect to such matter to the Deemed Consent Notice Parties and expenseotherwise in accordance with the applicable terms and conditions hereof (the “Initial Notice”), perform each obligation which such Initial Notice shall have been (A) accompanied by any and all required information and documentation relating thereto as may be reasonably required in order to be performed approve or disapprove such matter (the “Approval Information”) and (B) marked in bold lettering with the following language: “LENDER’S RESPONSE IS REQUIRED WITHIN SEVEN (7) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER” and the subject line containing the Initial Notice shall have been marked “PRIORITY-DEEMED APPROVAL MAY APPLY”;
(iii) Lender shall have failed to approve or disapprove the request set forth in the Initial Notice within the aforesaid time-frame;
(iv) Borrower shall have sent Lender an email request for approval with respect to such matter to the Deemed Consent Notice Parties and otherwise in accordance with the applicable the terms and conditions hereof (the “Second Notice”), which such Second Notice shall have been (A) accompanied by the landlord under each LeaseApproval Information and (B) marked in bold lettering with the following language: “LENDER’S RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER” and the subject line containing the Second Notice shall have been marked “PRIORITY-DEEMED APPROVAL MAY APPLY”; not borrow against, pledge and
(v) Lender shall have failed to approve or further assign any rents or other payments due thereunder; not permit disapprove the prepayment of any rents or other payments due for more than one (1) month request set forth in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by Second Notice within the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunderaforesaid time-frame.
(c) If any Tenant Borrower shall default (i) observe and punctually perform all the material obligations imposed upon the lessor under its Leasethe Leases, Mortgagor shallincluding satisfaction of all Unfunded Obligations; (ii) enforce all of the material terms, covenants and conditions contained in the ordinary course Leases on the part of businessthe lessee thereunder to be observed or performed, exercise sound business judgment with respect to such defaultshort of termination thereof, but except that Borrower may terminate any Lease following a material default thereunder by the respective Tenant; (iii) not discount, compromise, forgive collect any of the rents thereunder more than one month in advance; (iv) not execute any assignment of lessor’s interest in the Leases or waive claims or discharge associated rents other than the Tenant from its obligations assignment of rents and leases under the Lease Mortgage; (v) not cancel or terminate or accept a surrender any guarantee of any of the Lease Major Leases without the prior written consent of MortgageeLender, which consent shall not be unreasonably withheld, delayed or conditioned; and (vi) not permit any subletting of any space covered by a Lease or an assignment of the Tenant’s rights under a Lease, except in strict accordance with the terms of such Lease. Borrower shall deliver to each new Tenant a Tenant Notice upon execution of such Tenant’s Lease, and promptly thereafter deliver to Lender a copy thereof and evidence of such Tenant’s receipt thereof.
(d) If Mortgagor fails Security deposits of Tenants under all Leases shall be held in compliance with Legal Requirements and any provisions in Leases relating thereto. Borrower shall maintain books and records of sufficient detail to perform any obligations identify all security deposits of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor Tenants separate and apart from any Obligationother payments received from Tenants. Subject to Legal Requirements, remedy any bond or other instrument held by Borrower in lieu of cash security shall name Lender as payee or mortgagee thereunder or be fully assignable to Lender. Borrower hereby pledges to Lender each such failurebond or other instrument as security for the Indebtedness. Upon the occurrence of an Event of Default, Borrower shall, upon Lender’s request, deposit with Lender in an Eligible Account pledged to Lender an amount equal to the aggregate security deposit of the Tenants (and any interest theretofore earned on such security deposits and actually received by Borrower), and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failurebonds, together that Borrower had not returned to the applicable Tenants or applied in accordance with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess terms of the one month LIBOR Rate applicable Lease (as set forth and defined in the Bond Leasefailure to do so shall constitute a misappropriation of funds pursuant to Section 9.19(b)).
(e) For purposes Borrower shall promptly deliver to Lender a copy of this Mortgageeach written notice from a Tenant under any Major Lease claiming that Borrower is in default in the performance or observance of any of the material terms, covenants or conditions thereof to be performed or observed by Borrower. Borrower shall use commercially reasonable efforts to provide in each Major Lease executed after the following terms Closing Date to which Borrower is a party that any Tenant delivering any such notice shall have the following meanings:send a copy of such notice directly to Lender.
Appears in 1 contract
Sources: Loan Agreement (New York REIT, Inc.)
Leases. (a) Notwithstanding anything Borrower shall furnish Lender with executed copies of all Leases. A new Lease which is not a Major Lease, a renewal and extension or amendment of a Lease which is not a Major Lease, shall not require Lender's approval, PROVIDED (i) the rent and other amounts payable thereunder, based upon the location of the demised premises, the type of property, and the tenant improvements, allowances or concessions to be made or provided by the landlord thereunder (taken as a whole) are "market" rate as determined by Borrower in good faith, and (ii) the other proposed terms thereof (taken as a whole) are Commercially Reasonable as determined by Borrower in good faith. Lender hereby agrees that the terms and provisions of Borrower's standard forms of Lease attached hereto as EXHIBIT D (collectively, the "STANDARD LEASE FORM") without material deviation (defined for these purposes as a deviation that would likely be objectionable to a prudent institutional lender) are Commercially Reasonable. Subject to the contrary hereinprovisions of the next sentence, Mortgagor shall not enter into all new Leases must provide that they are subject and subordinate to any current or future mortgage financing on the Property and that the Tenant agrees to attorn to any foreclosing mortgagee at such mortgagee's request. Lender agrees to execute subordination, non-disturbance and attornment agreements on the form attached hereto as EXHIBIT E (with such changes as reasonably approved by Lender), or, if required under the applicable Lease, any other form reasonably satisfactory to Lender, with respect to any Lease without Mortgagee’s prior written consentas to which a subordination, non-disturbance and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease attornment agreement is required to be prior delivered by Lender, either as an obligation of Borrower under such Lease or subordinate in order to this Mortgage, at Mortgagee’s optioneffect the subordination of such Lease and the agreement to attorn by the related Tenant.
(b) Mortgagor shallAll new Leases which are Major Leases or are Leases that do not comply with the second sentence of SECTION 5.8(a), at its cost all terminations (other than terminations arising from an event of default by tenant under the terms of the applicable Lease), extensions, renewals and expensematerial amendments of Major Leases, perform each obligation any surrender of rights under any Major Lease and any material amendment to the Standard Lease Form shall be subject to the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed (and all other new Leases or terminations, extensions, renewals and amendments of Leases shall not require Lender's prior written consent), it being agreed by Lender that Lender's approval shall not be withheld with respect to a proposed Major Lease unless (i) the rent and other amounts payable under such proposed Major Lease, based upon the location of the demised premises, the type of property, the tenant improvements, allowances and concessions to be performed made or provided by the landlord under each Lease; such proposed Major Lease (taken as a whole), is not borrow againstat "market" rates, pledge or further assign any rents or other payments due thereunder; (ii) the proposed terms of such proposed Major Lease (taken as a whole and in context with the items described in clause (i) of this sentence) are not permit the prepayment Commercially Reasonable. In addition, Lender's approval of any rents extension or other payments due for more than one renewal of a Major Lease (1) month in advance; and not permit any Tenant to assign its whether such extension or renewal is by way of a modification of a Tenant's existing Lease or sublet by way of a new Lease with such Tenant) shall not be required if such extension or renewal is at a "market" rent or the premises covered by its Lease, unless rent otherwise required pursuant to do so by the terms thereof of such Tenant's existing Lease and then only if the other terms of such assignment does not work to relieve extended or renewed Lease are the Tenant of any liability for performance of its obligations thereundersame or better in all material respects than those contained in such Tenant's existing Lease.
(c) If any Tenant Each request for approval of a Lease shall default under its be submitted to Lender and shall prominently include a statement in capital letters "URGENT - LENDER'S ATTENTION REQUIRED WITHIN 10 BUSINESS DAYS", together with (i) a copy of the proposed Lease, Mortgagor shall(ii) a summary of the economic terms thereof and any termination options contained therein, and (iii) copies of all written materials obtained by Borrower in connection with its evaluation of the ordinary course creditworthiness of businessthe proposed Tenant, exercise sound business judgment or, with respect to a proposed termination, a description of the reason therefor (the foregoing items (i) through (iii) being collectively, the "LEASE APPROVAL MATERIALS"), and shall be deemed approved if Lender shall not have notified the Borrower in writing of its disapproval thereof and the reasons for such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from disapproval within 10 Business Days after its obligations under the Lease or terminate or accept a surrender receipt of the Lease Approval Materials. Borrower may also request, pursuant to the procedure described in the preceding sentence, Lender's approval of the rent and other amounts payable by the proposed Tenant and Borrower, including tenant allowances and rent concessions, under a proposed Lease and the identity of the proposed Tenant (and any guarantor) and any other material terms of such Lease (collectively, the "PROPOSED LEASE TERMS") even if the form of the proposed Lease is not yet available for Lender's review, provided that the approval or deemed approval of the Proposed Lease Terms shall not constitute Lender's approval of such Lease (except with respect to the Proposed Lease Terms), and when the proposed Lease becomes available Borrower shall be required to submit it for Lender's approval in accordance with the procedure described in the preceding sentence, except that Lender's approval shall not be required if Borrower delivers to Lender an Officer's Certificate certifying that the final proposed Lease is consistent, in all material respects, with the Standard Lease Form, and the Proposed Lease terms previously approved (or deemed approved) by Lender. If Lender shall have previously consented or been deemed to have consented to the Proposed Lease Terms under such proposed Lease, Lender's approval of such proposed Lease shall not be withheld unless the other terms of such proposed Lease, taken as a whole (and in the context of the already approved Proposed Lease Terms), are not Commercially Reasonable.
(d) Borrower shall (i) deliver to each new Tenant a Tenant Notice upon execution of such Tenant's Lease, and promptly thereafter deliver to Lender a copy thereof and evidence of such Tenant's receipt thereof; (ii) observe and perform all the material obligations imposed upon the lessor under the Leases; (iii) enforce in a commercially reasonable manner as determined by Borrower in good faith all of the material terms, covenants and conditions contained in the Leases on the part of the lessee thereunder to be observed or performed, short of termination thereof, except that Borrower may terminate any Lease following a material default thereunder by the respective Tenant; (iv) not collect any of the rents thereunder more than one month in advance; (v) not execute any assignment of lessor's interest in the Leases or associated rents other than the Assignment of Rents and Leases; and (vi) not cancel or terminate any guarantee of any of the Major Leases without the prior written consent of Mortgagee.
(d) If Mortgagor fails Lender not to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)unreasonably withheld.
(e) For purposes Security deposits of this MortgageTenants under all Leases, whether held in cash or any other form, shall not be commingled with any other funds of Borrower and, if cash, shall be deposited by Borrower at such commercial or savings bank or banks as may be reasonably satisfactory to Lender and (to the following extent of Borrower's rights thereto) pledged to Lender. Any bond or other instrument which Borrower is permitted to hold in lieu of cash security deposits under any applicable Legal Requirements shall be maintained in full force and effect unless replaced by cash deposits as described above, shall be issued by an institution reasonably satisfactory to Lender, shall (if not prohibited by any Legal Requirements) name Lender as payee or mortgagee thereunder (or at Lender's option, be fully assignable to Lender) or may name Borrower as payee thereunder so long as such bond or other instrument is (to the extent of Borrower's rights thereto) pledged to Lender as security for the Indebtedness and shall, in all respects, comply with any applicable Legal Requirements and otherwise be reasonably satisfactory to Lender. Borrower shall, upon Lender's request, provide Lender with evidence reasonably satisfactory to Lender of Borrower's compliance with the foregoing. During the continuance of any Event of Default, Borrower shall, upon Lender's request, deposit with Lender in an Eligible Account pledged to Lender an amount equal to the aggregate security deposits of the Tenants (and any interest theretofore earned on such security deposits and actually received by Borrower) which Borrower has not theretofore returned to the applicable Tenants or applied in accordance with the terms of the applicable Lease, and Lender shall have hold such security deposits in a segregated account in accordance with the following meanings:applicable Lease.
(f) Each of Borrower and Sponsor covenant and agree not to take any action in respect of leasing efforts for adjacent retail properties owned by Affiliates of the Borrower or Sponsor, or contemplated to be developed by Affiliates of the Borrower or Sponsor, that would diminish or adversely affect the leasing efforts at the Property.
Appears in 1 contract
Sources: Loan Agreement (Las Vegas Sands Inc)
Leases. (a) Notwithstanding anything to Without the contrary hereinprior written consent of Lender, Mortgagor Borrower shall not (i) enter into any Lease, (ii) modify, amend, renew, extend or terminate any Lease, (iii) accept any rental payment on a Lease without Mortgagee’s prior written consentfor more than one month in advance of its due date, and or (iv) enter into any ground lease of the Property. Borrower shall furnish submit to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with Lender for review a copy of each proposed Lease, together with such other information as Lender may request. At Lender’s request, Borrower shall cause the tenant under any Lease requiring the consent to execute a subordination, non-disturbance and attornment agreement in form and substance satisfactory to Lender. Borrower shall provide Lender with a copy of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare a fully executed original of each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s optionexecuted after the date hereof promptly following its execution.
(b) Mortgagor shall, at its cost and expense, perform each obligation Borrower will not suffer or permit any breach or default to be performed by occur in any of the obligations of the landlord under each Lease; not borrow againstany of the Leases, pledge nor suffer or further assign permit any rents Lease to be terminated or other payments due thereunder; not permit the prepayment cancelled by reason of any rents or other payments due for more than one (1) month failure of Borrower to perform any of the obligations of the landlord under any Lease. Borrower shall use reasonable efforts to notify Lender promptly in advance; writing in the event a tenant commits a material default under a Lease. Borrower will not waive any rights under any of the Leases and not permit any Tenant to assign its Lease or sublet will enforce the premises covered by its Lease, unless required to do so by obligations of tenants under and guarantors of the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunderLeases.
(c) If any Tenant Borrower shall default under its Leasedeliver to Lender all tenant security deposits, Mortgagor shallincluding letters of credit, in which security deposits Lender shall hold subject to the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender terms of the Lease without Leases. Upon forfeiture of any security deposit, the prior written consent of Mortgageeamount thereof shall be paid to Lender for application to the Indebtedness. All lease termination payments or fees shall be paid to Lender for application to the Indebtedness.
(d) If Mortgagor fails Borrower shall pay for all tenant improvements required by the Leases to perform any obligations of Mortgagor the extent that the tenants under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor such Leases are not required to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy pay for such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)improvements.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Loan and Security Agreement (Gc Net Lease Reit, Inc.)
Leases. (a) Notwithstanding anything Loan Parties shall not materially amend, materially modify, terminate, consent to the contrary hereinassignment (unless required to do so under the applicable Material Lease and excluding any assignment pursuant to any Loan Document) or surrender of, Mortgagor or grant a waiver of any material provision or right of Loan Parties under, or otherwise materially supplement any Material Lease or any guaranty thereof or subject to Section 6.10(b), any Minor Lease or any guaranty thereof (each, a “Material Lease Action”) without Requisite Lenders’ prior consent in the case of a Material Lease or Agent’s prior consent in the case of a Minor Lease or enter into a Material Lease or any Minor Lease that does not satisfy the requirements of clause (ii) of Section 6.10(b) without Requisite Lenders’ prior consent in the case of a Material Lease or Agent’s prior consent in the case of such a Minor Lease, which consent shall not be unreasonably withheld, conditioned or delayed. Prior to seeking Requisite Lenders’ consent to enter into any Lease without Mortgagee’s prior written consentMaterial Lease, Loan Parties shall deliver to Agent and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with Lenders a copy of such proposed lease (a “Proposed Material Lease”). Subject to clause (h) below, Agent (with the approval of Requisite Lenders where required) shall approve or disapprove each proposed Proposed Material Lease requiring or Material Lease Action for which Agent’s and/or Requisite Lenders’, as applicable, approval is required under this Loan Agreement within ten (10) Business Days of the consent submission by Loan Parties to Agent and each Lender of Mortgagee and with any information a written request for such approval, accompanied by a final copy of the Proposed Material Lease, non-conforming Minor Leases or Material Lease Action. If requested by Mortgagee regarding Loan Parties, Agent and Requisite Lenders, as applicable, will grant conditional approvals of Proposed Material Leases, non-conforming Minor Leases or proposed Material Lease Actions at any stage of the leasing process, including from initial “term sheet” through negotiated lease drafts, provided that Agent and Requisite Lenders, as applicable, shall retain the right to disapprove any such Proposed Material Lease, non-conforming Minor Lease or proposed Tenant thereunderMaterial Lease Action, if subsequent to any preliminary approval material changes are made to the terms previously approved by Agent and/or Requisite Lenders, as applicable, or additional material terms are added that had not previously been considered and approved by Agent and/or Requisite Lenders, as applicable, in connection with such Proposed Material Lease, non-conforming Minor Lease or proposed Material Lease Action. Mortgagee may declare each Notwithstanding anything set forth herein to the contrary, Agent’s and/or Requisite Lenders, as applicable, consent shall not be required for any renewal, extension, expansion, termination, assignment or subletting of or any action with respect to, a Lease unilaterally exercised by the tenant thereunder in accordance with the provisions of such Lease. Without limiting this Section 6.10(a), Loan Parties shall deliver to be prior Agent a copy of any Material Lease and any amendment, modification or subordinate to this Mortgage, at Mortgagee’s optionsupplement thereof within ten (10) Business Days after the execution and delivery thereof.
(b) Mortgagor shallNotwithstanding the provisions of Section 6.10(a) above, provided that no Event of Default is continuing, Leases and any actions with respect thereto shall not be subject to the prior approval of Agent provided (i) the proposed Lease would be a Minor Lease or the existing Lease is (or, as amended, modified or renewed, if applicable, would still be) a Minor Lease, and (ii)(w) with respect to a proposed Lease only, the proposed Lease shall be written substantially in accordance with a form of Lease used for other Lessees which shall have been approved by Agent, subject in each case to any commercially reasonable changes (given the prevailing market conditions) made in the course of negotiation with the applicable tenant, (y) with respect to a proposed Lease or an extension of an existing Minor Lease, the tenant under the proposed Lease or existing Minor Lease shall be creditworthy (or there shall be a creditworthy guarantor or a commercially reasonable Security Deposit) and (z) the Minor Lease as amended or modified or the renewal of the Minor Lease or series of leases or proposed lease or series of leases: (a) shall provide for net effective rental rates comparable to existing local market rates and (b) shall provide for automatic self-operative subordination to the Deed of Trust and, at its cost Agent’s option, (x) attornment to Agent and expense(y) the unilateral right by Agent, perform each obligation at the option of Agent, to be performed by subordinate the landlord under each Lien of the Deed of Trust to the Minor Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant Each Loan Party shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from perform its obligations under the Leases in all material respects and shall not permit any Lessee to prepay Rents pursuant to the terms of any Lease or terminate or accept a surrender other than the usual prepayment of Rent as would result from the acceptance on the first day of each month of the Rent for the ensuing month, according to the terms of any Leases. Loan Parties shall promptly (i) notify Agent, in writing, of any material defaults by any Lessee or Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor guarantor under any Lease or if Mortgagee becomes after Loan Parties become aware of or is notified by such defaults and (ii) deliver to Agent a copy of all termination notices, default notices, notices claiming any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor offset rights and all other material notices from any Obligation, remedy such failure, and Mortgagor agrees Lessee or Lease guarantor to repay upon demand all sums incurred by Mortgagee in remedying Loan Parties or from Loan Parties to any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)Lessee or Lease guarantor.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (a) Notwithstanding anything All Leases and all renewals of Leases executed after the date hereof shall (i) provide for economic terms, including rental rates, comparable to existing local market rates for similar properties, (ii) be on commercially reasonable terms, (iii) have a term of not less than three (3) years (unless Lender approves in writing a shorter term), (iv) have a term of not more than ten (10) years, including all extensions and renewals (unless Lender approves in writing a longer term), (v) provide that such Lease is subordinate to the contrary hereinMortgage and the Assignment of Leases and that the Tenant thereunder will attorn to Lender and any purchaser at a foreclosure sale, Mortgagor (vi) be to Tenants that are creditworthy, (vii) be written substantially in accordance with the standard form of Lease which shall have been approved by Lender (subject to any commercially reasonable changes made in the course of negotiations with the applicable Tenant), (viii) not be to an Affiliate of Borrower or any Guarantor, and (ix) not contain any option to purchase, any right of first refusal to purchase, any right to terminate (except in the event of the destruction or condemnation of substantially all of the Property), any requirement for a non-disturbance or recognition agreement, or any other terms which would materially adversely affect Lender’s rights under the Loan Documents. All Major Leases and all renewals, amendments and modifications thereof executed after the date hereof shall be subject to Lender’s prior approval. Borrower shall not enter into permit or consent to any assignment or sublease of any Major Lease without MortgageeLender’s prior written consent, and shall furnish approval (other than assignments or subleases expressly permitted under any Major Lease pursuant to Mortgagee, upon execution, a complete and fully executed copy unilateral right of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease the Tenant thereunder not requiring the consent of Mortgagee Borrower). Lender, at Borrower’s sole cost and expense, shall execute and deliver its then standard form of subordination, non-disturbance and attornment agreement to Tenants under any future Major Lease approved by Lender upon request, with any information such commercially reasonable changes as may be requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease such Tenants and which are acceptable to be prior or subordinate to this Mortgage, at Mortgagee’s optionLender.
(b) Mortgagor shallBorrower (i) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) shall enforce the terms, at its cost covenants and expense, perform each obligation conditions contained in the Leases upon the part of the Tenants thereunder to be observed or performed by in a commercially reasonable manner, provided, however, Borrower shall not terminate or accept a surrender of a Lease without Lender’s prior approval; (iii) shall not collect any of the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for Rents more than one (1) month in advanceadvance (other than security deposits); (iv) shall not execute any assignment of lessor’s interest in the Leases or the Rents (except as contemplated by the Loan Documents); and (v) shall not permit alter, modify or change any Tenant Lease so as to assign its Lease change the amount of or sublet payment date for rent, change the premises covered by its Leaseexpiration date, unless required to do so by grant any option for additional space or term, materially reduce the terms thereof and then only if such assignment does not work to relieve obligations of the Tenant or increase the obligations of any liability for performance the lessor. Upon request, Borrower shall furnish Lender with executed copies of its obligations thereunderall Leases. Borrower shall promptly send copies to Lender of all written notices of material default which Borrower shall receive under the Leases.
(c) If All security deposits of Tenants, whether held in cash or any Tenant other form, shall default be held in compliance with all Legal Requirements, shall not be commingled with any other funds of Borrower and, if cash, shall be deposited by Borrower at a separately designated account under its LeaseBorrower’s control at the Clearing Bank. After the commencement of the initial Sweep Event Period, Mortgagor Borrower shall, upon Lender’s request, if permitted by applicable Legal Requirements, cause all such security deposits (and any interest theretofore earned thereon) to be transferred into the Cash Management Account (which shall then be held by Cash Management Bank in a separate Account), which shall be held by Cash Management Bank subject to the terms of the Leases. Any bond or other instrument which Borrower is permitted to hold in lieu of cash security deposits under any applicable Legal Requirements (i) shall be maintained in full force and effect in the ordinary course full amount of businesssuch deposits unless replaced by cash deposits as herein above described, exercise sound business judgment (ii) shall be issued by an institution reasonably satisfactory to Lender, (iii) shall, if permitted pursuant to any Legal Requirements, name Lender as payee or mortgagee thereunder (or at Lender’s option, be fully assignable to Lender), and (iv) shall in all respects comply with respect any applicable Legal Requirements and otherwise be satisfactory to such defaultLender. Borrower shall, but may not discountupon request, compromiseprovide Lender with evidence satisfactory to Lender of Borrower’s compliance with the foregoing.
(d) Borrower shall have the right, forgive without the consent or waive claims or discharge the Tenant from its obligations under the Lease or approval of Lender, to terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease that is not a Major Lease so long as such termination or if Mortgagee becomes aware of or surrender is notified (i) by any Tenant reason of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, tenant default and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%ii) in excess of a commercially reasonable manner to preserve and protect the one month LIBOR Rate (as set forth and defined in the Bond Lease)Property.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. A. Without Lender’s prior written consent, which may be granted or withheld in Lender’s sole discretion, Borrowers shall not enter into or modify, amend, supplement, terminate or cancel any Lease of all or any part of any Property. Any submission by Borrowers for Lender’s consent to a Lease or modification, amendment, supplement, termination or cancellation thereof shall be accompanied by a copy of such Lease or modification, amendment, supplement, termination or cancellation, a then-current Rent Roll for the applicable Property, year-to-date and prior year operating statements for the applicable Property and a cover letter requesting Lender’s consent which contains a signature line on which Lender may evidence Lender’s consent to such Lease or modification, amendment, supplement, termination or cancellation (a) collectively, the “Lease Approval Deliveries”). Each Lease, and each modification, amendment, supplement, termination or cancellation of any Lease, shall be in writing. Notwithstanding anything to the contrary hereinin the Loan Documents, Mortgagor shall Lender’s written consent will not enter be required prior to entering into any new Safe Harbor Lease without Mortgagee’s prior written consentor any modification, amendment, or supplement thereof after the Closing Date (so long as such Lease remains a Safe Harbor Lease after giving effect to any such modification, amendment or supplement), provided that no Event of Default exists and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with Borrowers deliver a copy of each such Safe Harbor Lease to Lender within ten (10) days after execution thereof together with Borrowers’ written certification that such copy is a true, correct and complete copy of such Safe Harbor Lease and that all of the conditions set forth in this sentence and in the definition of “Safe Harbor Lease” have been satisfied.
B. Lender agrees that for any proposed Lease requiring that does not qualify as a Safe Harbor Lease, for which Borrower is required to obtain Lender’s consent thereto, Lender will attempt to respond within ten (10) Business Days, and Lender’s consent shall not be unreasonably withheld based upon market conditions. Borrower shall be permitted to submit a lease summary term sheet, for purposes of obtaining Lender’s approval, which sets out all of the economic terms of the proposed Lease, as well as any deviations from the Lease Form. Lender’s consent will be contingent on tenant signing the Lease Form. Lender will not be obligated to enter into any subordination, non-disturbance and attornment agreement (or similar agreement) for any tenant for which Borrower is requesting Lender lease approval until such time as an executed Lease that complies with the provisions of this Agreement is delivered to Lender. If Lender has failed to respond to the written request for consent of Mortgagee and a proposed Lease after five (5) Business Days after its receipt thereof, together with any additional information requested by Mortgagee regarding that Lender may reasonably require to evaluate such proposed Lease, and Borrower has provided a subsequent five (5) Business Days written notice to Lender requesting consent, each notice marked with a legend in bold capital letters stating: LENDER SHALL BE DEEMED TO HAVE CONSENTED TO THE MATTER CONTAINED HEREIN IF IT FAILS TO RESPOND TO THIS REQUEST FOR CONSENT WITHIN 10/5 (as applicable) BUSINESS DAYS AFTER THE DATE HEREOF, then Lender shall be deemed to have consented to the proposed Tenant thereunder. Mortgagee same.
C. With respect to each Lease, Borrowers: shall neither do, nor neglect to do, anything that may declare each cause or permit the termination of such Lease, or cause or permit the withholding or abatement of any rent payable under any such Lease;
(i) shall observe and perform all of the obligations imposed upon Borrowers under such Lease and shall not do or permit to be prior or subordinate done anything to this Mortgage, at Mortgagee’s option.impair the value of the Lease as security for the Secured Obligations;
(bii) Mortgagor shallshall promptly send copies to Lender of all written notices of default that Borrowers shall send or receive under any Lease;
(iii) shall enforce all of the terms, at its cost covenants and expense, perform each obligation conditions contained in the Lease upon the part of the lessee or any other party that is not Borrowers thereunder to be observed or performed by and shall not effect a termination or diminution of the landlord obligations of tenants under each Lease; ;
(iv) shall not borrow against, pledge or further assign collect any rents or other payments due thereunder; not permit the prepayment of rent under any rents or other payments due for Lease more than one (1) month in advance; and advance (other than security deposits);
(v) shall not permit execute any Tenant other assignment of Borrowers’ interest in the Leases or Revenue, except pursuant to assign its Lease the Security Documents;
(vi) shall not alter, modify or sublet the premises covered by its Lease, unless required to do so by change the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance guaranty of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive Leases or waive claims or discharge the Tenant from its obligations under the Lease cancel or terminate or accept a surrender of the Lease such guaranty without the prior written consent of MortgageeLender; and
(vii) shall not consent to any assignment of or subletting under the Lease not in accordance with their terms, without the prior written consent of Lender.
D. Borrowers shall deposit security deposits of tenants under Leases that are turned over to or for the benefit of Borrowers or otherwise collected by or on behalf of Borrowers, into an Eligible Account and in compliance with applicable Legal Requirements and shall not commingle such funds with any other funds of Borrowers. Any bond or other instrument that Borrowers are permitted to hold in lieu of cash security deposits under any applicable Legal Requirements shall be maintained in full force and effect unless replaced by cash deposits as hereinabove described, shall, if permitted pursuant to all applicable Legal Requirements, name Lender as payee or mortgagee thereunder (or at Lender’s option, be fully assignable to Lender) and shall, in all respects, comply with any applicable Legal Requirements and otherwise be reasonably satisfactory to Lender. Borrowers shall, upon request, provide Lender with evidence reasonably satisfactory to Lender of Borrowers’ compliance with the foregoing. Upon the occurrence and during the continuance of any Event of Default, Borrowers shall, upon Lender’s written request, if permitted by any applicable Legal Requirements, turn over to Lender the security deposits (and, if required to be paid to any tenant pursuant to its Lease or applicable Legal Requirements, any interest theretofore earned thereon and not previously disbursed to such tenant) then held with respect to all or any portion of any Property, to be held by Lender subject to the terms of the Leases.
(di) If Mortgagor fails Without limiting the generality of the foregoing, (a) Borrowers shall notify Lender in writing of any cancellation penalties, termination fees or other consideration payable to perform Borrowers in connection with any obligations cancellation, termination or surrender of Mortgagor under any Lease (any such penalties or if Mortgagee becomes aware fees are referred to herein as “Termination Fees”), which written notice shall be delivered to Lender not later than three (3) Business Days following receipt by Borrowers of written notice from the applicable tenant under such Lease of the intention of such tenant to cancel, terminate or is notified surrender such Lease, but in any event prior to the payment by the applicable tenant under such Lease of any Tenant of a failure on the part of Mortgagor such Termination Fees to so perform, Mortgagee such Borrower and (b) Lender may, but shall not be obligated required to, without waiving (i) require that such Borrowers deposits such Termination Fees into a reserve held by Lender or releasing Mortgagor from any ObligationServicer pursuant to a tenant improvement and leasing commissions reserve agreement, remedy such failurewhich agreement shall be in form and substance reasonably satisfactory to Lender, and Mortgagor agrees (ii) impose such restrictions and conditions on the timing and amount of disbursements of the Termination Fees from such reserve account as Lender may reasonably require, including, without limitation (x) requiring that (1) the space left vacant as a result of such cancellation, termination or surrender be relet to repay upon demand all sums incurred a tenant and under a Lease consented to by Mortgagee Lender unless such consent is either not required or deemed given in remedying accordance with this Section 5.1.18 (any such failureLease an “Approved Lease”), together (2) the tenant under such Approved Lease is in occupancy of the portion of the Property demised pursuant to such Approved Lease and is paying rent in accordance with interest thereon such Approved Lease, (3) Borrowers provide to Lender a tenant estoppel certificate from the date incurred at an annual rate equal tenant under such Approved Lease in a form and in substance reasonably acceptable to nine Lender, and one half percent (9.5%4) Borrowers provide to Lender written evidence reasonably acceptable to Lender that all improvements to the applicable Property required pursuant to such Approved Lease have been completed in excess accordance with such Approved Lease, and (y) limiting the amount of any such disbursement to the one month LIBOR Rate lesser of (as set forth 1) the actual cost of re-tenanting such space and defined in (2) the Bond amount calculated by dividing the applicable Termination Fees by the total square feet of space vacated, then multiplying that result by the number of square feet of newly leased space under such Approved Lease).
(eii) For purposes Subject to Section 5.1.18(E)(iii) below, (a) in the event that following the date that any such Termination Fee is paid, as of the date of determination, the Debt Service Coverage Ratio is less than 1.0 to 1.0, then Lender may apply an amount equal to the excess of (x) any Termination Fees over (y) the amount of such Termination Fees disbursed to Borrowers pursuant to Section 5.1.18(E)(i) above (any such excess amount the “Excess Termination Fees”) to any regularly scheduled payment due and payable by Borrower under the Note, this Agreement, the Mortgages or the other Loan Documents (including, without limitation, any monthly payment of principal and/or interest and any regularly scheduled reserve deposits) in such order and in such manner as determined by Lender; (b) following the date that any such Termination Fee is paid, as of the date of determination, (x) the Debt Service Coverage Ratio equals or exceeds 1.0 to 1.0 and (y) at least eighty-five percent (85%) of the rentable square feet of space available at all of the Properties is occupied by Leases approved (or deemed approved) by Lender pursuant to this Agreement or the Safe-Harbor Leases, then Lender shall disburse any Excess Termination Fees to Borrowers.
(iii) If any Event of Default exists and is continuing, Lender may apply any Termination Fees to the Secured Obligations in such order and in such manner as determined by Lender in Lender’s sole discretion.
F. Borrowers shall provide Lender with a Rent Roll on an annual basis, certified by Borrowers to Lender as true, correct and complete. Without limiting the provisions of this MortgageSection 5.1.18, the following terms Rent Roll shall have the following meanings:include all Leases whether or not evidenced by written instruments.
Appears in 1 contract
Sources: Loan Agreement (GTJ REIT, Inc.)
Leases. (a) Notwithstanding anything to the contrary herein, Mortgagor Borrower shall not be authorized to enter into any Lease ground lease of the Property, without MortgageeLender’s prior written approval. Except as otherwise set forth in clauses (b) and (d) below, Borrower shall not, without Lender’s prior written consent, modify, amend, surrender or terminate any Lease, which approval shall not be unreasonably withheld, conditioned or delayed. Except as otherwise set forth in clauses (b) and (d) below, all Leases of space in the Property shall furnish be on the form of lease previously approved by Lender with Tenants and for a use acceptable to MortgageeLender. Except as otherwise set forth in clause (b) below, upon execution, a complete and fully all Leases of space in the Property executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring or renewed after the consent of Mortgagee and with any information requested date hereof must be approved by Mortgagee regarding Lender prior to the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s optionexecution thereof by Borrower.
(b) Mortgagor Notwithstanding anything contained herein to the contrary, Borrower may enter into a proposed Lease (including the amendment, renewal or extension of an existing Lease (a “Renewal Lease”)) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease or Renewal Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arm’s-length transaction with a bona fide, independent third party Tenant, (iii) is written on the standard form of lease previously approved by Lender, with only reasonable, non-material changes thereto, and (iv) is not a Major Lease. So long as (A) RREEF owns, directly or indirectly, at least fifty-one percent (51%) of the ownership interests in Borrower, and (B) the property manager of the Property is a Qualified Manager, Borrower (i) shall, at its cost with regard to any Lease other than a Major Lease, not terminate any such Lease or accept a surrender of any such Lease except by reason of a tenant default or if commercially reasonable and expenseprovided such termination will not materially impair the value of the Property, (ii) shall, with regard to any Major Lease, not terminate any such Lease or accept a surrender of such Lease except by reason of a tenant default or otherwise with prior written consent of Lender, which shall not be unreasonably withheld. If the conditions set forth in clauses (A) and (B) above are not met, Borrower shall not terminate any Lease without Lender’s consent unless (i) by reason of a tenant default, and (ii) such Lease is not a Major Lease.
(c) Borrower shall cause the Tenants under any new Lease or the renewal of any existing Lease to execute and deliver a Subordination, Non-Disturbance and Attornment Agreement in the form annexed as Schedule V promptly upon Lender’s request contemporaneously with the execution of such Lease, with such commercially reasonable changes as may be requested by Tenants, from time to time, and which are reasonably acceptable to Lender, and Lender agrees to execute and deliver any such Subordination, Non-Disturbance and Attornment Agreement.
(d) Borrower (i) shall observe and perform each obligation the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the lessee thereunder to be observed or performed by in a commercially reasonable manner; provided, however, that, subject to the landlord under each Leaseprovisions of clause (b) above, Borrower shall not terminate or accept a surrender of a Major Lease without Lender’s prior approval; (iii) shall not borrow against, pledge or further assign collect any rents or other payments due thereunder; not permit of the prepayment of any rents or other payments due for Rents more than one (1) month in advanceadvance (other than security deposits); (iv) shall not execute any assignment of lessor’s interest in the Leases or the Rents (except as contemplated by the Loan Documents); (v) except as provided in Section 4.1.9(b), shall not alter, modify or change any Lease so as to change the amount of or payment date for rent, change the expiration date, grant any option for additional space or term, materially reduce the obligations of the lessee or increase the obligations of lessor; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease(vi) shall hold all security deposits under all Leases in accordance with Legal Requirements. Upon request, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant Borrower shall furnish Lender with executed copies of any liability for performance of its obligations thereunderall Leases.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (a) Notwithstanding anything Upon Lender’s request, Borrower shall, or shall cause Senior Mezzanine Borrower to, furnish Lender with executed copies of all Leases, together with a detailed breakdown of income and cost associated therewith to the contrary hereinextent the same has been prepared by Borrower or Senior Mezzanine Borrower. All new Leases and renewals or amendments of Leases must be entered into on an arms-length basis with Tenants whose identity and creditworthiness, Mortgagor shall not enter into any Lease without Mortgageein Borrower’s prior written consentgood faith judgment, is appropriate for tenancy in property of comparable quality, must provide for rental rates and other economic terms which, in Borrower’s good faith judgment, taken as a whole, are at least equivalent to then-existing market rates, based on the applicable market, and shall furnish must contain terms and conditions that are commercially reasonable (in each case, unless Lender consents to Mortgageesuch Lease in its sole discretion). Subject to the terms of the Encumbered Property Debt Documents, upon execution, a complete all new Leases must provide that they are subject and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgageany current or future mortgage financing on the applicable Property and that the Tenant agrees to attorn to any foreclosing mortgagee at such mortgagee’s request, at Mortgageeprovided such mortgagee agrees to not disturb such Tenant’s optiontenancy except in accordance with its Lease.
(b) Mortgagor shallAll new Leases which are Major Leases, at and all terminations, renewals and material amendments of Major Leases, and any surrender of rights under any Major Lease, shall be subject to the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed. To facilitate Borrower’s leasing process, Borrower shall have the right to present prospective leasing transactions to Lender for its cost and expense, perform each obligation approval prior to be performed by the landlord under each negotiation of a final Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit . Such presentation shall include a summary term sheet of all material terms of the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its proposed Lease or sublet a draft of the premises covered proposed Lease together with any additional information concerning such proposed Lease and the proposed Tenant thereunder as may be reasonably requested by its LeaseLender (the “Lease Term Sheet”). Each request for approval of a Lease or a Lease Term Sheet shall be submitted to Lender in an envelope marked “URGENT – LENDER’S ATTENTION REQUIRED WITHIN 7 BUSINESS DAYS”, unless required to do so by together with (i) a copy of the proposed Lease or the Lease Term Sheet, (ii) a summary of the economic terms thereof and then only any termination options contained therein together with a detailed breakdown of income and costs associated with the proposed Lease, and (iii) copies of all written materials obtained by Borrower or the applicable Senior Mezzanine Borrower in connection with its evaluation of the creditworthiness of the proposed Tenant, and shall be deemed approved if Lender shall not have notified Borrower in writing of its disapproval thereof and the reasons for such assignment disapproval within three Business Days after Borrower shall have given Lender written notice confirming that at least seven Business Days have elapsed since such submission, which written notice shall be submitted to Lender in an envelope marked “URGENT – SECOND AND FINAL NOTICE – LENDER’S ATTENTION REQUIRED BY [DATE]”. If Lender approves or is deemed to have approved the Lease Term Sheet, Lender’s approval of the final Lease shall be limited to Lender’s reasonable confirmation that the final Lease does not work (i) deviate in any material adverse respect from the terms set forth on the Lease Term Sheet or contain any material adverse terms not set forth in the Lease Term Sheet, or (ii) deviate in any material respect from the approved Lease form (and otherwise such final Lease shall be subject to relieve the Tenant Lender’s reasonable written approval). Borrower shall deliver to Lender a copy of any liability for performance of its obligations thereunderLease executed pursuant to a Lease Term Sheet together with an Officer’s Certificate indicating any material deviations from such Lease Term Sheet.
(c) If any Tenant shall default under its Lease, Mortgagor Borrower shall, and shall cause Senior Mezzanine Borrower to (i) observe and perform all the material obligations imposed upon the lessor under the Leases; (ii) enforce, to the extent commercially reasonable, all of the material terms, covenants and conditions contained in the ordinary course Leases on the part of businessthe lessee thereunder to be observed or performed, exercise sound business judgment with respect to such defaultshort of termination thereof, but except that Senior Mezzanine Borrower may terminate any Lease following a material default thereunder by the respective Tenant; (iii) not discount, compromise, forgive collect any of the rents thereunder more than one month in advance; (iv) not execute any assignment of lessor’s interest in the Leases or waive claims or discharge associated rents other than the Tenant from its obligations assignments of rents and leases under the Lease Mortgages and the Encumbered Debt Documents; and (v) not cancel or terminate or accept a surrender any guarantee of any of the Lease Major Leases without the prior written consent of MortgageeLender. Borrower shall cause Senior Mezzanine Borrower to deliver to each new Tenant at a Mortgage Loan Collateral Property a Tenant Notice upon execution of such Tenant’s Lease or include same in such Tenant’s Lease or invoices, and promptly thereafter deliver to Lender a copy thereof and evidence of such Tenant’s receipt thereof.
(d) To the extent required by applicable law, security deposits of Tenants under all Leases, whether held in cash or any other form, shall not be commingled with any other funds of Borrower or Senior Mezzanine Borrower and, if cash, shall be deposited by Senior Mezzanine Borrower in an Eligible Account or such other account at such commercial or savings bank as may be reasonably satisfactory to Senior Mezzanine Lender (or Lender, if Senior Mezzanine Loan is no longer outstanding or Senior Mezzanine Lender is otherwise not requiring Senior Mezzanine Borrower to be in compliance with Section 5.7(d) of the Senior Mezzanine Loan Agreement), which account shall be pledged to Senior Mezzanine Lender (or Lender, if Senior Mezzanine Loan is no longer outstanding or Senior Mezzanine Lender is otherwise not requiring Senior Mezzanine Borrower to be in compliance with Section 5.7(d) of the Senior Mezzanine Loan Agreement). Borrower shall, upon Lender’s request, provide Lender with evidence reasonably satisfactory to Lender of Borrower’s or Senior Mezzanine Borrower’s , as the case may be, compliance with the foregoing. During the continuance of any Event of Default, subject to the Encumbered Property Debt Documents and the rights of Senior Mezzanine Lender under the Senior Mezzanine Loan Documents, Borrower shall, upon Lender’s request, deposit with Lender in an Eligible Account pledged to Lender an amount equal to the aggregate security deposits of the Tenants (and any interest theretofore earned on such security deposits and actually received by Borrower) which Borrower, Senior Mezzanine Borrower or their respective Affiliates had not returned to the applicable Tenants or applied in accordance with the terms of the applicable Lease.
(e) Whenever a Lease at a Mortgage Loan Collateral Property is terminated, whether by buy-out, cancellation, default or otherwise, and Senior Mezzanine Borrower is entitled to any payment, fee or penalty in respect of such termination, Borrower shall promptly cause such payment, fee or penalty to be deposited into an Eligible Account pledged to Mortgage Lender in accordance with the Mortgage Loan Agreement. Subject to the terms of the Encumbered Property Debt Documents, whenever a Lease at an Other Property is terminated, whether by buy-out, cancellation, default or otherwise, and Senior Mezzanine Borrower or a Property Owner is entitled to any payment, fee or penalty in respect of such termination (a “Termination Fee”), Borrower shall promptly cause such Termination Fee to be deposited into an Eligible Account pledged to Senior Mezzanine Lender (or Lender, if Senior Mezzanine Loan is no longer outstanding or Senior Mezzanine Lender is otherwise not requiring Senior Mezzanine Borrower to be in compliance with Section 5.7(e) of the Senior Mezzanine Loan Agreement). At any time that such Eligible Account is pledged to Lender, provided no Event of Default has occurred and is continuing, (i) Lender shall disburse such Termination Fee to Borrower at the written request of Borrower in respect of Leasing Commissions and Tenant Improvement costs incurred by Borrower or Senior Mezzanine Borrower in connection with replacement Leases at any Properties other than Value Add Pool Properties, Disposition Asset Properties or any Property with an Aggregate Allocated Loan Amount of zero, in each case provided such Lease is entered into in accordance with the terms of this Agreement.
(f) Within ten Business Days after receipt of written request therefor, provided Lender has received a copy of the executed corresponding Lease, Lender shall execute and deliver to Borrower a subordination, non-disturbance and attornment agreement (an “SNDA”). If Mortgagor fails the form of the SNDA shall be prescribed by the Lease in question, and Lender shall have approved (or been deemed, in accordance with Section 5.7(b) hereof, to perform have approved) such Lease (and the form of SNDA was attached to the draft Lease that was delivered to Lender as part of Borrower’s request for approval), Lender shall execute and deliver the SNDA in the form prescribed by such approved Lease. Notwithstanding the foregoing, in the case of any obligations Lease as to which Lender’s approval is not required pursuant to this Section 5.7 where such tenant thereunder requests an SNDA, the SNDA to be executed and delivered by Lender shall be in substantially the form attached hereto as Exhibit G, and such form shall also be attached to Senior Mezzanine Borrower’s standard form of Mortgagor Lease as approved by Lender. Lender agrees to reasonably negotiate the terms of the SNDA with any Tenant under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee mayLease, but shall not be obligated to, without waiving or releasing Mortgagor required to execute an SNDA that differs in any material respect from any Obligation, remedy such failure, the form attached hereto as Exhibit G. All reasonable out-of-pocket attorneys’ fees and Mortgagor agrees to repay upon demand all sums disbursements incurred by Mortgagee Lender in remedying any connection with such failureSNDA shall be payable by Borrower within ten Business Days after Lender’s written request therefor, together with interest thereon from whether or not the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)SNDA is ultimately executed and/or recorded.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Junior Mezzanine Loan Agreement (Gramercy Capital Corp)
Leases. Borrower shall not permit Mortgage Borrower to enter into a proposed Lease or a proposed renewal, extension (a) Notwithstanding anything other than a renewal or extension that is being unilaterally exercised by a tenant pursuant to the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy terms of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its an existing Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may which Lender shall not discount, compromise, forgive have any consent rights) or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender modification of the an existing Lease without the prior written consent of Mortgagee.
Lender, which consent shall not, so long as no Event of Default is continuing, be unreasonably withheld or delayed. Prior to seeking Lender’s consent to any Lease, Borrower shall, or shall cause Mortgage Borrower to, deliver to Lender a copy of such proposed lease (da “Proposed Lease”) and, if such Proposed Lease is based on the standard form of Lease approved by Lender, blacklined to show changes from the standard form of Lease approved by Lender and then being used by Mortgage Borrower. Lender shall approve or disapprove each Proposed Lease or proposed renewal, extension or modification of an existing Lease for which Lender’s approval is required under this Agreement within 10 Business Days of the submission by Borrower or Mortgage Borrower to Lender of a written request for such approval, accompanied by a final copy of the Proposed Lease or proposed renewal, extension or modification of an existing Lease. If Mortgagor requested by Borrower, Lender will grant conditional approvals of Proposed Leases or proposed renewals, extensions or modifications of existing Leases at any stage of the leasing process, from initial “term sheet” through negotiated lease drafts, provided that Lender shall retain the right to disapprove any such Proposed Lease or proposed renewal, extension or modification of an existing Lease, if subsequent to any preliminary approval material changes are made to the terms previously approved by Lender, or additional material terms are added that had not previously been considered and approved by Lender in connection with such Proposed Lease or proposed renewal, extension or modification of an existing Lease. Provided that no Event of Default is continuing, if Borrower provides Lender with a written request for approval (which written request shall be marked in bold lettering with the following: “LENDER’S RESPONSE IS REQUIRED WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF SECTION 5.10.2 OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER” and the envelope containing the request must be marked “PRIORITY”, and explicitly state that failure by Lender to approve or disapprove within 10 Business Days will constitute a deemed approval) and Lender fails to perform any obligations reject the request in writing delivered to Borrower within 10 Business Days after receipt by Lender of Mortgagor under any the request, the Proposed Lease or if Mortgagee becomes aware proposed renewal, extension or modification of an existing Lease shall be deemed approved by Lender, and Borrower shall be entitled to permit Mortgage Borrower to enter into such Proposed Lease or proposed renewal, extension or modification of an existing Lease. Notwithstanding anything to the contrary in this Section 5.10, unless expressly agreed to in writing by Lender or unless Lender’s approval of the Capital Expense budget described in Section 5.10.3 hereof is notified given, any approval or deemed approval by any Tenant Lender of a failure on the part proposed Lease or proposed renewal, extension or modification of Mortgagor an existing Lease pursuant to so perform, Mortgagee may, but this Section 5.10 shall not be obligated to, without waiving deemed to constitute (in and of itself) an approval or releasing Mortgagor from deemed approval by Lender of any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee Approved Leasing Expenses in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)connection therewith.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Leases. (a) Notwithstanding anything The Borrower will, and will cause the Subsidiary Guarantors to, take, or cause to be taken, all reasonable steps within the power of the Borrower and Subsidiary Guarantors to market and lease the leasable area of the Collateral Pool Properties in accordance with sound and customary leasing and management practices for similar properties. Any such leasing activity shall be conducted in accordance with the terms of §7.13(b), below, and the Mortgages. During the existence of an Event of Default, the Agent shall have the right, and the Borrower and Subsidiary Guarantors hereby authorize the Agent, to communicate directly with any tenant under a Lease to verify any information delivered to the contrary herein, Mortgagor shall not enter into any Lease without MortgageeAgent by the Borrower or Subsidiary Guarantors concerning such tenant or such tenant’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shallThe Borrower will not, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; will not permit the prepayment Subsidiary Guarantors to, enter into any Lease with a Major Tenant, or amend, supplement or otherwise modify, terminate or cancel, or accept the surrender of, or consent to the assignment or subletting of, or grant any concessions to or waive the performance of any rents obligations of any Lease with a Major Tenant without the prior written consent of the Agent, which consent shall not be unreasonably withheld. With respect to any Lease entered into after the date hereof which would not be with a Major Tenant, the Borrower and Subsidiary Guarantors may enter into such Lease, provided that such Lease is a bona fide arm’s length lease entered into in the ordinary course of business with a party that is not an Affiliate of Borrower or the Subsidiary Guarantors or addition, or other payments due change made by in accordance with sound leasing and management practices for similar properties and such Lease, does not contain any rights of first offer or first refusal or other rights to purchase such Collateral Pool Property) and will not cause a default under any other Lease. With respect to any Lease which is not with a Major Tenant, the Borrower and Subsidiary Guarantors may amend, supplement or otherwise modify, terminate or cancel, or accept the surrender of, or consent to the assignment or subletting of, or granting concessions to or waive the performance of any obligations of any tenant, lessee or licensee under any such Lease in the ordinary course of business consistent with sound leasing and management practices for similar properties. To the extent the Agent’s approval or consent is required pursuant to this §7.13, Agent’s approval shall be deemed granted in the event the Agent fails to respond to the Borrower’s request within ten (10) Business Days if (A) Borrower has delivered to Agent and Agent’s counsel the applicable documents, with the notation “IMMEDIATE RESPONSE REQUIRED, FAILURE TO RESPOND TO THIS APPROVAL REQUEST WITHIN TEN (10) BUSINESS DAYS FROM RECEIPT SHALL BE DEEMED TO BE LENDER’S APPROVAL” prominently displayed in bold, all caps and fourteen (14) point or larger font in the transmittal letter requesting approval and (B) Agent does not approve or reject the applicable request within ten (10) Business Days from the date Agent and Agent’s counsel receive the request as evidenced by a certified mail return receipt or confirmation by a reputable national overnight delivery service (e.g., Federal Express) that the same has been delivered. The Borrower and Subsidiary Guarantors shall furnish the Agent with executed copies of all Leases or amendments thereto hereafter made with respect to any Collateral Pool Property. The Borrower and Subsidiary Guarantors shall deliver a Payment Direction Letter (as defined in the Cash Collateral Agreement) to each new tenant of a Lease entered into after the date hereof with respect to a Collateral Pool Property.
(c) The Borrower shall not, and will not permit the Subsidiary Guarantors to, collect any rents, issues, profits, revenues, income or other benefits payable under any of the Leases for the Collateral Pool Properties more than one (1) month in advance; advance (provided that the foregoing shall not prohibit the collection of security deposits). The Borrower shall not, and shall not permit the Subsidiary Guarantors to, directly or indirectly, cause or permit to exist, any Tenant condition which would result in the termination or cancellation of, or which would relieve the performance of any obligations of any tenant under, any Lease for all or any portion of the Collateral Pool Properties. In the event that any existing or future security deposit is in the form of a letter of credit, Borrower or the applicable Subsidiary Guarantor shall, at Agent’s election, cause Agent to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms be a named beneficiary thereof and then only if shall otherwise cause such assignment does not work letter of credit to relieve be in form and substance reasonably satisfactory to Agent, and shall assign to Agent its interest in such letter of credit pursuant to documents reasonably satisfactory to Agent. Without limiting any term of the Tenant of Loan Documents prohibiting Borrower or the Subsidiary Guarantors from terminating Leases, any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in payments received by Borrower or the ordinary course of business, exercise sound business judgment Subsidiary Guarantors with respect to such defaultearly lease termination options or otherwise paid by tenants in consideration of an early termination of any Lease shall, but may not discountat Agent’s election, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept be promptly paid to Agent as a surrender prepayment of the Lease without the prior written consent Loans if an Event of MortgageeDefault exists.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Credit Agreement (Sealy Industrial Partners IV, LP)
Leases. (a) Notwithstanding anything All Leases and all renewals of Leases executed after the date hereof shall (i) provide for rental rates comparable to existing local market rates for similar properties taking into account the other terms of the Lease, (ii) be on commercially reasonable terms, (iii) provide that such Lease is subordinate to the contrary hereinMortgage and that the lessee will attorn to Lender and any purchaser at a foreclosure sale and (iv) not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents. All Major Leases and all renewals, Mortgagor amendments and modifications thereof executed after the date hereof shall be subject to Lender’s prior approval, which approval shall not be unreasonably withheld, conditioned or delayed; provided, however, that Borrower may, without Lender’s consent (x) enter into renewals, modifications, amendments, expansions and terminations of existing Leases that are not Major Leases and (y) enter into new Leases that are not Major Leases. Lender shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement in the form annexed as Schedule IV to Tenants under future Leases approved or deemed approved by Lender promptly upon request with such commercially reasonable changes as may be requested by Tenants, from time to time, and which are reasonably acceptable to Lender. All Leases that are not Major Leases which provide for tenant improvements, tenant allowances and leasing commissions, in the aggregate in excess of $50.00 per rentable square foot, are subject to Lender’s prior approval, such approval not to be unreasonably withheld, conditioned or delayed. Moreover, it shall be reasonable for Lender to withhold its approval of any Lease without Mortgagee’s prior written consentwhich provides for an excess of $50.00 per rentable square foot for tenant improvements, tenant allowances and shall furnish leasing commissions in the aggregate unless Borrower provides Lender evidence that it has the financial ability (e.g., adequate funds on deposit with Senior Mezzanine Lender which are available for the payment of same) to Mortgagee, upon execution, a complete and fully executed copy fund such excess before Lender disburses same out of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s optionvarious Reserve Funds.
(b) Mortgagor shallBorrower (i) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) shall use commercially reasonable efforts to enforce the terms, at its cost covenants and expense, perform each obligation conditions contained in the Leases upon the part of the lessee thereunder to be observed or performed by in a commercially reasonable manner, provided , however , Borrower shall not terminate or accept a surrender of a Major Lease without Lender’s prior approval which approval shall not be unreasonably withheld, delayed or conditioned provided further, however, that it shall not be unreasonable for Lender to withhold its approval if the landlord under each Lease; not borrow against, pledge Senior Mezzanine Lender or further assign the Junior A Mezzanine Lender or the Junior B Mezzanine Lender (or any rents or other payments due thereunder; not permit the prepayment holder of any rents loan which refinanced such mezzanine loans) do not approve such termination or other payments due for surrender, (iii) shall not collect any of the Rents more than one (1) month in advanceadvance (other than security deposits and lease termination payments permitted under Leases permitted hereunder); (iv) shall not execute any assignment of lessor’s interest in the Leases or the Rents (except as contemplated by the Loan Documents); and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease(v) shall hold all security deposits under all Leases in accordance with Legal Requirements. Upon request, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant Borrower shall furnish Lender with executed copies of any liability for performance of its obligations thereunderall Leases.
(c) Notwithstanding anything to the contrary contained in this Section 4.1.9:
(i) whenever Lender’s approval or consent is required pursuant to the provisions of this Section 4.1.9, Borrower shall have the right to submit a term sheet for any Major Lease or any renewal, modification or amendment thereof to Lender for Lender’s approval, such approval not to be unreasonably withheld, delayed or conditioned. Any such term sheet submitted to Lender shall set forth all material terms of the proposed Major Lease (or renewal, modification or amendment thereof) including, without limitation, identity of tenant, square footage, term, rent, rent credits, abatements, work allowances and tenant improvements to be constructed by Borrower and include a request containing a legend in bold letters stating that upon Lender’s failure to respond within ten (10) Business Days the lease transaction described in the term sheet shall be deemed consented to and approved. Lender shall respond within ten (10) Business Days after Lender’s receipt of Borrower’s written request for approval or consent of such term sheet. If Lender fails to respond to such request within ten (10) Business Days, Lender shall be deemed to have approved or consented to such term sheet;
(ii) whenever Lender’s approval or consent is required pursuant to the provisions of this Section 4.1.9 for any Tenant matter that Lender has not previously approved a term sheet pursuant to Section 4.1.9(c)(i) above, Lender shall default under its respond within ten (10) Business Days after Lender’s receipt of Borrower’s written request for such approval or consent which contains a legend in bold letters stating that Lender’s failure to respond within ten (10) Business Days shall be deemed consent or approved. If Lender fails to respond to such request within ten (10) Business Days, Lender shall be deemed to have approved or consented to the matter for which lender’s consent or approval was sought;
(iii) whenever Lender’s approval or consent is required pursuant to the provisions of this Section 4.1.9 for any matter that Lender has previously approved a term sheet pursuant to Section 4.1.9(c)(i) above, Lender shall respond within ten (10) Business Days after Lender’s receipt of Borrower’s written request for such approval or consent containing a legend in bold letters stating that Lender’s failure to respond within ten (10) Business Days shall be deemed consent or approval. If Lender fails to respond to such request within ten (10) Business Days, Lender shall be deemed to have approved or consented to the matter for which Lender’s consent or approval was sought. The ten (10) Business Day periods contained in this subsection (iii) shall be reduced to three (3) Business Days if the matter involves a new Major Lease or an amended and restated Major Lease, Mortgagor shalla term sheet is approved, a blacklined copy of the new document against the Approved Lease Form is delivered to Lender and an Officer’s Certificate is delivered to Lender, in each case indicating that the ordinary course of businessnew document’s only differences with the Approved Lease Form are as reflected in the approved term sheet and those which do not materially adversely affect the Property, exercise sound business judgment Borrower or Lender;
(iv) in the event that Lender shall have approved (or be deemed to have approved) a term sheet submitted by Borrower with respect to a certain Lease, Lender shall not withhold its approval or consent with respect to such defaultLease on the basis of any provisions of such Lease dealing with the items contained in the approved term sheet or any other provisions which do not materially adversely affect the Property, but may not discountBorrower or Lender; and
(v) Borrower shall have the right, compromisewithout the consent or approval of Lender in any instance, forgive or waive claims or discharge the Tenant from its obligations under the Lease or to terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or that is notified by any Tenant of not a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Major Lease).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (a) Notwithstanding anything to the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) The Mortgagor shall, at its own cost and expense, perform perform, comply with and discharge all of the obligations of the Mortgagor under all leases and agreements for the use of the Mortgaged Property and use reasonable efforts to enforce or secure the performance of each obligation to be performed by and undertaking of the landlord respective tenants under each Lease; not borrow againstsuch leases and shall appear in and defend, pledge at its own cost and expense, any action or further assign proceeding arising out of or in any rents or other payments due thereunder; not manner connected with the Mortgagor's interest in any leases of the Mortgaged Property. The Mortgagor shall permit the prepayment no surrender nor assignment of any rents tenant's interest under said leases unless the right to assign or other payments due surrender is expressly reserved under the lease, nor receive any installment of rent for more than one (1) month in advance; and not permit any Tenant advance of its due date unless otherwise required pursuant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if of the applicable lease, nor execute any mortgage or create or permit a lien which may be or become superior to any such assignment does not work to relieve the Tenant leases, nor permit a subordination of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect lease to such defaultmortgage or lien. The Mortgagor shall not materially modify or amend the telins of any such leases, but may not discountnor borrow against or pledge the rentals from such leases, compromise, forgive nor exercise or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender any default of the Lease tenant thereunder without the prior written consent of the Mortgagee.
. The Mortgagor agrees to obtain the Mortgagee's prior written approval before entering into any lease with a term of five (d5) If years or more. Should the Mortgagor fails fail to perform perform, comply with or discharge any material obligations of the Mortgagor under any Lease lease or if should the Mortgagee becomes become aware of or is be notified by any Tenant tenant under any lease of a material failure on the part of the Mortgagor to so perform, comply with or discharge its obligations under said lease, the Mortgagee may, but shall not be obligated to, and without further demand upon or notice to the Mortgagor, and without waiving or releasing the Mortgagor from any Obligationobligation in this Mortgage GP:3764046 v1 9 contained, remedy such failure, and the Mortgagor agrees to repay upon demand all sums incurred by the Mortgagee in remedying any such failurefailure together with interest at the Default Rate. All such sums, together with interest thereon as aforesaid, shall become so much additional Secured Indebtedness, but no such advance shall be deemed to relieve the Mortgagor from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess any Event of the one month LIBOR Rate (as set forth and defined in the Bond Lease)Default hereunder.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (a) Notwithstanding anything Borrower shall (i) observe and perform all of the material obligations imposed upon the lessor under the Leases; (ii) promptly send copies to Lender of all notices of default that Borrower shall send or receive under any Material Lease; (iii) promptly notify Lender of any tenant under a Material Lease at the Property which has vacated, or has given Borrower written notice of its intention to vacate, the premises (or any portion thereof) leased or sub-leased to such tenant pursuant to the contrary hereinapplicable Material Lease; and (iv) enforce the terms, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, covenants and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring conditions in Loan Agreement Loan Number 201916813 #63074348_v17 the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease Leases to be prior or subordinate observed by tenants in accordance with commercially reasonable practices for properties similar to this Mortgage, at Mortgagee’s optionthe Property.
(b) Mortgagor shallBorrower may not enter into any Material Lease after the date hereof without the prior written consent of Lender, at its cost and expense, perform each obligation not to be performed unreasonably withheld, conditioned or delayed.
(c) Borrower may enter into an Approved Lease after the date hereof without the prior written consent of Lender provided such Approved Lease satisfies the Leasing Guidelines and Lender has not given notices to Borrower that an Event of Default exists, provided, however, that if a Lease does not satisfy the Leasing Guidelines, Lender shall nonetheless consider approval of such Lease, in its sole and absolute discretion, based upon an analysis by Lender of the landlord under each Net Effective Rent for such Lease; .
(d) Borrower shall not borrow against, (i) make any assignment or pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents Lease or Rents to anyone other payments due for than Lender until the Indebtedness is paid in full, (ii) collect any Rents under the Leases more than one (1) month in advanceadvance (except that Borrower may collect in advance such security deposits as are permitted pursuant to applicable Legal Requirements and are commercially reasonable in the prevailing market); and not permit (iii) amend in any Tenant to assign its material respect or terminate any Material Lease (provided, however, that Borrower may terminate any such Lease if the lessee thereunder is in material monetary default of such Lease); or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant (iv) grant any modification of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, Material Lease which in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept aggregate might have a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)Material Adverse Effect.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:Intentionally Deleted.
Appears in 1 contract
Leases. (ai) Notwithstanding anything The Property is not subject to any Leases other than the Specified Tenant Lease, and the demised premises under the Specified Tenant Lease constitute the entirety of the Land and the Improvements. The initial term of the Specified Tenant Lease does not expire prior to the contrary hereindate that is fifteen (15) years following the First Amendment Date, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish subject to Mortgagee, upon execution, a complete and fully executed copy the rights of each Specified Tenant under Section 13 of the Specified Tenant Lease. Mortgagor shall provide Mortgagee with a copy Specified Tenant is required to commence payment of each proposed base rental payments under the Specified Tenant Lease requiring on the consent Commencement Date (as defined in the Specified Tenant Lease), which is the date of Mortgagee mutual execution and with any information requested delivery of the Specified Tenant Lease by Mortgagee regarding Mortgage Borrower and Specified Tenant (except during the proposed Rent Abatement Period (as defined in the Specified Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s optionLease) as expressly set forth in Section 4(D) thereof).
(bii) Mortgagor shallWith respect to each Lease (including, at without limitation, the Specified Tenant Lease), (A) Mortgage Borrower is the owner of landlord’s interest in such Lease, (B) other than with respect to Permitted Encumbrances, no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of such Lease, (C) such Lease is in full force and effect, the tenants thereunder have accepted possession of and are in occupancy of all of their respective demised premises, are open for business, and are paying (except, with respect to Specified Tenant only, during the Rent Abatement Period (as defined in the Specified Tenant Lease) as expressly set forth in Section 4(D) thereof) full, unabated rent, and no tenant under such Lease has given Borrower or Mortgage Borrower any notice of its cost intent to terminate such Lease or vacate the leased premises (and, except with respect to the termination of the Master Lease as described in Section 3 of the First Amendment, neither Borrower nor Mortgage Borrower has any knowledge that any such tenant intends to so terminate or vacate), (D) neither Borrower nor Mortgage Borrower has received written notice from any tenant under such Lease claiming that Mortgage Borrower (or any prior landlord) is in default thereunder, and expenseto the knowledge of Borrower and Mortgage Borrower there are no defaults under such Lease by any party thereto, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for (E) no Revenue has been paid more than one (1) month in advance; and not permit any Tenant to assign advance of its Lease or sublet the premises covered by its Leasedue date, unless required to do so by the terms thereof and then only if such assignment does not (F) all work to relieve the Tenant of be performed by Mortgage Borrower (or any liability for performance of its obligations thereunder.prior
(cg) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender Section 5.1.1(b)(i)(G) of the Lease without Loan Agreement is hereby deleted in its entirety from the prior written consent of Mortgagee.
(d) If Mortgagor fails Loan Agreement and replaced with the following provision: “cease to perform any obligations of Mortgagor under any Lease cause Mortgage Borrower to operate the Property, or if Mortgagee becomes aware of or is notified by any Tenant of permit the Property to cease to be operated, exclusively as a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, life sciences research related manufacturing and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, office facility together with interest thereon other appurtenant and related uses (other than temporary cessation in connection with any continuous and diligent renovation or restoration of the Property following a Casualty or Condemnation), or change the trade name or names under which it operates or leases the Property.” (h) Section 5.1.2(h)(v) of the Loan Agreement is hereby deleted in its entirety from the date incurred at an annual rate equal to nine Loan Agreement and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease).
(e) For purposes of this Mortgage, replaced with the following terms shall have provision: “[Intentionally Omitted]” (i) In Section
1.1 (except for the following meanings:definitions of “Borrower Party”, “Complete”, “Master Lease”, “Master Lease Payments”, “Master Lease Recognition Agreement”, “Master Tenant” and “Third Party Sale”), Section 2.1.6(x), Section 2.3.1(f), Section 3.2.1(c), Section 3.2.2.(c), Section 4.1.2(a), Section 5.1.1(f)(iv)(B)(III), Section 5.1.2(h)(i), Section 8.3(xi) and Exhibit E, all references to “Master Lease” are hereby deleted in their entirety and replaced with “Specified Tenant Lease” and all references to “Master Tenant” are hereby deleted in their entirety and replaced with “Specified Tenant”.
Appears in 1 contract
Leases. (a) Notwithstanding anything Borrower shall perform all obligations required to be performed by it as landlord under the contrary herein, Mortgagor Leases. Borrower shall not enter accept payment of more than one month’s rent in advance from any Tenant under a Lease. Except as otherwise approved by lender in writing, all Leases shall be entered into with bona fide third party subtenants financially capable, at the time of entering into their respective Leases, of performing their obligations under their Leases throughout the terms thereof and shall reflect arm’s-length transactions at the then current market rate for comparable space. Furthermore, Borrower shall not grant any Lease Tenant any rights or options to purchase the Real Estate or any portion thereof or release any Tenant or lease guarantor from any obligation or conditions without MortgageeLender’s prior written consent. Borrower shall obtain Lender’s written approval prior to executing any new Major Lease, modifying, amending, terminating or surrendering an existing Lease, or consenting to any sublease under or assignment of any Major Lease, unless Borrower is unconditionally obligated under the terms of the Major Lease to consent to the sublease or assignment. Lender shall respond to Borrower’s written request for approval of a new Major Lease or modification, amendment, termination or surrender of a Major Lease (which written request must contain the following on the first page thereof in bold, fully-capitalized 12-point or greater text: “IMPORTANT: PURSUANT TO SECTION 6.21 OF THE CREDIT AGREEMENT BETWEEN BORROWER AND LENDER, IF LENDER FAILS TO PROVIDE WRITTEN NOTICE OF THE ATTACHED LEASE OR MODIFICATION, AMENDMENT, TERMINATION OR SURRENDER THEREOF OR SUBLEASE THEREUNDER OR ASSIGNMENT THEREOF WITHIN 10 DAYS FOLLOWING LENDER’S RECEIPT HEREOF, LENDER SHALL BE DEEMED TO HAVE APPROVED THE ATTACHED LEASE OR THE MODIFICATION, AMENDMENT, TERMINATION OR SURRENDER THEREOF, SUBLEASE THEREUNDER, OR ASSIGNMENT THEREOF”) within 10 business days following Lender’s receipt of a copy of the proposed Major Lease, modification or amendment, or request for approval of termination or surrender or approval of sublease or assignment, as the case may be, together with financial statements and references on the prospective tenant and such other information concerning such new Major Lease, sublease or assignment, as the case may be, or prospective tenant, subtenant or assignee, as the case may be, or concerning the modification, amendment, termination or surrender, as the case may be, as Lender shall reasonably require. If Lender shall fail to respond to any such written request by Borrower for such approval within such 10 business day period, Lender shall be deemed to have approved such matter. Borrower shall submit to Lender, within 30 days following execution, all new Leases, all modifications, amendments, consents to assignment or subletting of existing Leases, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy promptly notify Lender of each the termination or surrender of any Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shallBorrower shall promptly deliver to Lender such rent rolls, at its cost leasing schedules and expensereports, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents operating statements or other payments due thereunder; not permit the prepayment leasing information as Lender may request from time to time, and shall promptly notify Lender of any rents material dispute with a Tenant or other payments due for more than one (1) month material adverse change in advance; leasing activity on the Real Estate. Borrower shall use reasonable efforts promptly to obtain and not permit deliver to Lender such subordination, non-disturbance and attornment agreements and tenant estoppel certificates, as Lender may require. In no event shall any approval by Lender of a Lease be a representation of any kind with regard to the Lease or its enforceability, or the financial capacity of any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunderlease guarantor.
(c) If any Tenant Borrower shall default under its Leasefirst apply all income derived from the Real Estate, Mortgagor shallincluding all income from the Leases, in to pay the ordinary course costs and expenses associated with the ownership, maintenance, operation and leasing of businessthe Real Estate that are then due and payable, exercise sound business judgment with respect including all amounts then required to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations be paid under the Lease Loan Documents, before using or terminate applying such income for any other purpose. No such income shall be distributed or accept paid to any partner, shareholder or member, or, if Borrower is a surrender of the Lease without the prior written consent of Mortgageetrust, to any beneficiary or trustor, unless all such costs and expenses which are then due and payable have been paid in full.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (a) Notwithstanding anything The Borrower will, and will cause the Subsidiary Guarantors to, take, or cause to be taken, all reasonable steps within the power of the Borrower and Subsidiary Guarantors to market and lease the leasable area of the Collateral Pool Properties in accordance with sound and customary leasing and management practices for similar properties. Any such leasing activity shall be conducted in accordance with the terms of §7.13(b), below, and the Mortgages. The Agent shall have the right, and the Borrower and Subsidiary Guarantors hereby authorize the Agent, to communicate directly with any tenant under a Lease to verify any information delivered to the contrary herein, Mortgagor shall not enter into any Lease without MortgageeAgent by the Borrower or Subsidiary Guarantors concerning such tenant or such tenant’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shallThe Borrower will not, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; will not permit the prepayment Subsidiary Guarantors to, enter into any Lease with a Major Tenant, or amend, supplement or otherwise modify, terminate or cancel, or accept the surrender of, or consent to the assignment or subletting of, or grant any concessions to or waive the performance of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant obligations of any liability for performance of its obligations thereunder.
(c) If any Lease with a Major Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so performAgent, Mortgagee may, but which consent shall not be obligated tounreasonably withheld. With respect to any Lease entered into after the date hereof which would not be with a Major Tenant, the Borrower and Subsidiary Guarantors may enter into such Lease, provided that such Lease is a bona fide arm’s length lease entered into in the ordinary course of business with a party that is not an Affiliate of Borrower or the Subsidiary Guarantors and is on the standard lease form approved by Agent (without material modification or addition, or other change made by Borrower or a Subsidiary Guarantor not in accordance with reasonable and prudent leasing practices (including, without waiving limitation, any change which increases the landlord’s obligations or releasing Mortgagor from any Obligationdecreases the landlord’s rights, remedy such failurecreates additional remedies, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failurerights of self-help, together with interest thereon from offset, termination, co-tenancy or similar provisions for the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess benefit of the one month LIBOR Rate (as set forth tenant thereunder, or creates rights of first offer or first refusal) and defined in the Bond will not cause a default under any other Lease).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:. With respect to any Lease which is not with
Appears in 1 contract
Sources: Credit Agreement (Sealy Industrial Partners IV, LP)
Leases. (a) Notwithstanding anything to the contrary herein, The Mortgagor shall not enter into observe and perform all the obligations imposed upon the Mortgagor under any Lease without Mortgagee’s prior written consentlease of the Real Property or any portion thereof, and shall furnish not do or permit to be done anything which would impair the security of any such lease to the Mortgagee, upon executionnor cancel or change any terms, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior conditions or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment covenants of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender lease of the Lease Real Property or any portion thereof without the prior written consent of the Mortgagee.
(d) If , nor execute any lease providing for payment of rent for more than one month in advance, nor receive rent from any tenant of all or any part of the Real Property for more than one month in advance without the prior written consent of the Mortgagee. The Mortgagor fails agrees to perform hold in trust for the benefit of the Mortgagee any obligations such advance rent in excess of one month received by the Mortgagor. The Mortgagor under agrees to send to the Mortgagee any Lease notice of default given by the Mortgagor to any lessee or if occupant of the Real Property and any notices of default received by the Mortgagor from any tenant or other occupant of the Real Property, and to give prompt written notice to the Mortgagee becomes aware of or is notified by any Tenant of a failure material default on the part of any tenant or other occupant of the Real Property, whether or not the Mortgagor has given notice of such condition to so performthe tenant or occupant in default. No tenant under any lease of the Real Property which is subordinate to this Mortgage shall be entitled to terminate such tenant’s lease without giving the Mortgagee written notice of the Mortgagor’s default under such lease and, if Mortgagor fails to cure any default within the applicable grace period, if any, contained in said lease, giving Mortgagee mayan additional reasonable period of time to cure such default. In no event shall the Mortgagee have any liability to any tenant or occupant for any default by Mortgagor or for the return of any security deposit given to the Mortgagor and in no event shall the Mortgagee be subject to any setoff, but shall not be obligated todefense or claim which any tenant or occupant may have against the Mortgagor. Any tenant or occupant of the Real Property shall, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon promptly after receipt of a request from the date incurred Mortgagee made at an annual rate equal any time prior to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease).
(e) For purposes foreclosure of this Mortgage, execute, acknowledge and deliver to the following terms Mortgagee such instrument as the Mortgagee may reasonably request agreeing to attorn to the Mortgagee, at the election of the Mortgagee, after the foreclosure of this Mortgage. The Mortgagee shall have the following meanings:right to subordinate this Mortgage and its rights hereunder to any lease of the Real Property or any portion thereof which is subordinate to this Mortgage, except that the Mortgagee shall be entitled to expressly exclude from such subordination the Mortgagee’s rights to insurance proceeds and eminent domain awards in the event of a loss or casualty or eminent domain taking of the Mortgaged Property or any portion thereof. If the Mortgagee executes and records an instrument which purports to effect a partial or complete subordination of this Mortgage to any lease which is subordinate to this Mortgage, such lease shall not be terminated by a foreclosure of this Mortgage, but any rights of the Mortgagee to insurance proceeds or eminent domain awards which are expressly excluded from such subordination shall remain superior to the rights of the tenant under such lease.
Appears in 1 contract
Sources: Mortgage and Security Agreement
Leases. (aA) Notwithstanding anything to The lists of the contrary hereinLeases for each Project attached hereto as Exhibits P-1 through P-4 are complete and accurate in all material respects and list all of the Leases currently affecting the Property, Mortgagor shall not enter into including any Lease without Mortgagee’s prior written consentamendments and modifications thereto, and shall furnish Sellers have delivered to MortgageePurchaser true, upon execution, a correct and complete and fully executed copy copies of each Leaseall the Leases. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring Seller is the consent of Mortgagee and with any information requested by Mortgagee regarding lessor or landlord or the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior successor lessor or subordinate to this Mortgage, at Mortgagee’s optionlandlord under the Leases.
(bB) Mortgagor shallTo the best of each Seller’s knowledge, at no Seller, nor any Tenant under any of the Leases, is in default under the Leases set forth on Exhibits P-1 through P-4. No Seller has received any written notice of termination or default from a Tenant under said Tenant’s Lease, which default has not been cured prior to the Effective Date, nor has any Seller sent a written notice of termination or default to any Tenant prior to the Effective Date. No Tenant has asserted to Seller any defense, set-off or counterclaim remaining outstanding with respect to its cost and expense, perform each tenancy or its obligation to pay rent, additional rent and other charges pursuant to its Lease. Seller has not delivered any written notice to any Tenant under a Lease that such tenant continues to be performed by delinquent in the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment payment of any rents or other payments due rent for more than one thirty (130) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunderdays.
(cC) If There are no lease brokerage agreements, leasing commission agreements, or other agreements providing for payments of any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment amounts for leasing activities or procuring Tenants with respect to the Property to which any Seller is a party or pursuant to which Seller is obligated to make any payments to any such default, but may not discount, compromise, forgive leasing broker or waive claims agent. There are no brokerage commissions or discharge other such payments that shall become due from and after the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of MortgageeClosing in connection with any Lease.
(dD) If Mortgagor fails There are no (i) outstanding Tenant Inducement Costs (as hereinafter defined) accrued or due and payable, or (ii) due but unperformed construction obligations outstanding with respect to perform any obligations the Leases. As used herein, “Tenant Inducement Costs” shall mean tenant improvement costs and allowances, lease buyout costs, reimbursement of Mortgagor under any Lease or if Mortgagee becomes aware tenant’s moving expenses and other out of or is notified by any Tenant of a failure on the part of Mortgagor to so performpocket costs, Mortgagee maydesign, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failurerefurbishment allowances, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying the economic burden of any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)free or reduced rent.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Leases. (a) Notwithstanding anything All Leases and other rental arrangements shall in all material respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the contrary hereinMortgage, Mortgagor (ii) the tenant shall not enter into any Lease without Mortgagee’s prior written consentattorn to Lender, and shall furnish to Mortgagee(iii) that any cancellation, upon executionsurrender, a complete and fully executed copy or amendment of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of MortgageeLender shall be voidable by Lender. Borrower shall hold, in trust, all tenant security deposits in a segregated account, and, to the extent required by applicable law, shall not commingle any such funds with any other funds of Borrower. Within ten (10) days after Lender’s request, Borrower shall furnish to Lender a statement of all tenant security deposits, and copies of all Leases not previously delivered to Lender, certified by Borrower as being true and correct in all material respects. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases, Lease modifications, or Lease extensions if the following conditions are satisfied: (A) no Event of Default has occurred and is continuing; (B) the Lease is on the standard Lease form approved by Lender with no modifications except for commercially reasonable modifications agreed to in the ordinary course of Borrower’s business, but in no event shall there be any material modifications to the subordination, attornment, estoppel and landlord liability clauses of such Lease without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed; (C) the Lease does not violate any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates and shall be an arms length transaction and in no event be with an Affiliate of Borrower; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; and (G) the Lease is for a term of not more than ten (10) years (exclusive of renewal options, which together with the initial lease term shall not exceed fifteen (15) years). Lender shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement in the form annexed hereto as Schedule IV to Tenants under future Major Lease approved by Lender promptly upon request with such commercially reasonable changes as may be requested by Tenants, from time to time, and which are reasonably acceptable to Lender.
(b) Borrower (i) shall perform the obligations which Borrower is required to perform under the Leases; (ii) shall enforce the obligations to be performed by the tenants; (iii) shall promptly furnish to Lender any notice of default or termination received by Borrower from any tenant, and any notice of default or termination given by Borrower to any tenant; (iv) shall not collect any rents for more than thirty (30) days in advance of the time when the same shall become due, except for bona fide security deposits not in excess of an amount equal to two months rent; (v) shall not enter into any ground Lease or master Lease of any part of the Property; (vi) shall not further assign or encumber any Lease; (vii) shall not, except with Lender’s prior written consent, cancel or accept surrender or termination of any Lease, except as expressly set forth in Section 4.1.9(c) hereof, and (viii) any Lease termination or cancellation fees shall be paid to Lender and held in the Rollover Fund. Any action in violation of clauses (v), (vi), (vii), and (viii) of this Section 4.1.9(b) shall be void at the election of Lender.
(c) Notwithstanding anything to the contrary contained herein, Borrower shall have the right to terminate any Lease which is not a Major Lease, provided such termination is (i) commercially reasonable, (ii) made in accordance with Borrower’s reasonable business judgment, and (iii) the Lease so terminated is replaced with a Lease which otherwise complies with the requirements set forth in this Section 4.1.9.
(d) Notwithstanding anything to the contrary contained in this Section 4.1.9, whenever Lender’s approval or consent is required pursuant to the provisions of this Section 4.1.9 for any matter that Lender has not previously approved, Lender shall respond within ten (10) Business Days after Lender’s receipt of Borrower’s written request for such approval or consent. If Mortgagor Lender fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor respond to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failurerequest within five (5) Business Days, and Mortgagor agrees Borrower sends a second request containing a legend in bold letters stating that Lender’s failure to repay upon demand all sums incurred by Mortgagee in remedying any respond within five (5) Business Days shall be deemed consent or approval, Lender shall be deemed to have approved or consented to the matter for which Lender’s consent or approval was sought if Lender fails to respond to such failure, together with interest thereon from second written request before the date incurred at an annual rate equal to nine and one half percent expiration of such second five (9.5%5) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)Business Days period.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (ai) Notwithstanding anything Make all payments and otherwise perform in all material respects all obligations in respect of all leases of real property to which the contrary hereinBorrower or any of its Subsidiaries is a party, Mortgagor shall keep such leases in full force and effect and not enter into allow such leases to lapse or be terminated or any Lease without Mortgagee’s prior written consent, and shall furnish rights to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease renew such leases to be prior forfeited or subordinate to this Mortgage, at Mortgagee’s option.
cancelled (b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shallexcept, in the ordinary course case of businessSubsidiaries of the Borrower only, exercise sound if in the reasonable business judgment of such Subsidiary it is in its best economic interest not to maintain such lease or prevent such lapse, termination, forfeiture or cancellation and such failure to maintain such lease or prevent such lapse, termination, forfeiture or cancellation is not in respect of a Qualifying Ground Lease of a Borrowing Base Asset and could not otherwise reasonably be expected to result in a Material Adverse Effect), notify the Administrative Agent of any default by any party with respect to such leases and cooperate with the Administrative Agent in all respects to cure any such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from and cause each of its obligations under the Lease or terminate or accept a surrender of the Lease without Subsidiaries to do so.
(ii) Without the prior written consent of Mortgagee.
Administrative Agent, such approval not to be unreasonably withheld, conditioned or delayed, none of Borrower, any Subsidiary Guarantor, nor their respective agents shall (dA) If Mortgagor fails enter into any non-residential Tenancy Leases related to perform any obligations of Mortgagor a Borrowing Base Asset where the annual rent under any the applicable Tenancy Lease exceeds $30,000 per annum, or if Mortgagee becomes aware of (B) modify, amend or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying terminate any such failurenon-residential Tenancy Lease (except as expressly permitted or contemplated hereunder) if such modification, together amendment or termination could reasonably be expected to result in a Material Adverse Effect. Borrower shall provide Administrative Agent with interest thereon from a copy of all non-residential Tenancy Leases related to a Borrowing Base Asset where the date incurred at an annual rate equal rent under the applicable Tenancy Lease exceeds $30,000 per annum no less than ten (10) days prior to nine and one half percent (9.5%) in excess execution of such Tenancy Leases. Borrower shall provide Administrative Agent with a copy of the one month LIBOR Rate (as set forth and defined in the Bond Lease)fully executed original of all non-residential Tenancy Leases related to a Borrowing Base Asset promptly following their execution.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (a) Notwithstanding anything to the contrary hereinNot, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
Purchaser: (a) execute any new Leases affecting the Property, or any part thereof (the "New Leases"); (b) amend, modify or supplement any Existing Lease; (c) terminate (except upon a default by the tenant thereunder) or accept the surrender of any Existing Lease; or (d) If Mortgagor fails approve any sublease; provided, however, that Seller is authorized to perform accept the termination of Leases at the end of their existing terms and to expand, extend or renew any obligations Leases pursuant to expansion, extension or renewal options specifically contained in a Lease and properly exercised by the tenants thereunder. From the Effective Date through the Closing Date, Seller agrees to permit Purchaser to negotiate lease renewals with month-to-month tenants ("Renewal Tenants") and new leases with prospective tenants ("New Tenants") on terms, and lease forms, acceptable to Purchaser (the "New Form Lease"). Upon Seller's written request, Purchaser shall keep Seller informed of Mortgagor under any all developments with regard to said negotiations. The New Form Lease or if Mortgagee becomes aware shall contain the following provision: "Submission of or this Lease by Landlord is notified not an offer to enter into this Lease but rather is a solicitation for such an offer by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but Tenant. Landlord shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failurebound by this Lease until Landlord has executed and delivered the same to Tenant." Purchaser may present the New Form Lease to Renewal Tenants and New Tenants, and Mortgagor if executed by such tenants, Seller agrees to repay upon demand execute the applicable lease and deliver the fully executed lease (a "Ratified Lease") into escrow with the Title Company to be delivered to Purchaser at Closing as an assigned lease pursuant to Section 8.1.3. In the event that this transaction does not Close, Seller may, in its discretion, void any and all sums incurred by Mortgagee Ratified Leases or deliver the Ratified Leases to the respective tenants, thereby giving the Ratified Leases full force and effect. Purchaser shall pay at Closing for any brokerage commissions due in remedying any such failure, together connection with interest thereon from the date incurred at an annual rate equal Ratified Leases assigned to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)Purchaser.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Purchase and Sale Agreement (Gyrodyne Co of America Inc)
Leases. (a) Notwithstanding anything Borrower will duly and punctually perform all its covenants and obligations under the Leases and will use its best efforts to enforce the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, performance of the obligations of the lessees under the Leases. Borrower will appear and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shalldefend, at its cost and expense, perform each obligation to be performed any action or proceeding arising under or in any manner connected with the Leases or the obligations of any lessee under a Lease. Borrower will immediately notify Lender in writing of any default by Borrower or any lessee under a Lease. Without the landlord under each prior written consent of Lender, Borrower shall not (1) terminate, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of, any of the Leases, or grant any other concessions in connection therewith; (2) accept a surrender of all or any portion of the Leases; (3) execute any new Lease; not borrow against, pledge or further assign (4) collect any rents or other payments due thereunder; not permit of the prepayment of any rents or other payments due for Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); and not permit (5) execute any Tenant other assignment of the lessor’s interest in any of the Leases or the Rents; or (6) consent to assign its Lease any assignment of or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of subletting under any liability for performance of its obligations thereunderLeases.
(cb) If any Tenant Upon written request from Lender, Borrower shall default under its Lease, Mortgagor shall, in the ordinary course deliver to Lender true and complete copy of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender all of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failureexisting Leases, together with interest thereon from all amendments, supplements and other modifications, and certify to Lender that, to the best of Borrower’s knowledge, no material default by Borrower under any existing Lease remains uncured beyond any applicable notice and cure period as of the date incurred at an annual rate equal to nine of such certification, or the details of such default and one half percent (9.5%) in excess the actions being taken by Lender with respect thereto. Borrower shall not willfully withhold from Lender any information regarding renewal, extension, amendment, modification, waiver of provisions of, termination, rental reduction of, surrender of space of, or shortening of the one month LIBOR Rate (as set forth and defined in term of, any Lease during the Bond Lease)term of the Loan.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (a) Notwithstanding anything to the contrary herein, Mortgagor Borrower shall not enter into into, amend, modify or otherwise supplement any Major Lease in any material respect or enter into, terminate, consent to the assignment or surrender of, or grant a waiver of any material provision or right of Borrower under any Major Lease without MortgageeAgent’s prior written consent. Borrower shall not enter into, amend, modify, terminate, consent to the assignment or surrender of, or grant a waiver of any material provision or right of Borrower under any non-Major Lease without Agent’s consent unless the foregoing is done in the ordinary course of business of Borrower, is commercially reasonable and is on arm’s, length, market terms with a creditworthy tenant, and shall furnish to Mortgagee, upon execution, a complete each such non-Major Lease is and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or remains subordinate to this the Mortgage, at Mortgagee’s option.
(b) Mortgagor shallWithout limiting Section 5.10(a) hereof, at its cost and expense, perform each obligation Borrower shall deliver to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment Agent a copy of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by and any amendment, modification or supplement thereof within five (5) Business Days after the terms thereof execution and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunderdelivery thereof.
(c) If Borrower shall comply in all material respects with all terms of the Leases. Borrower shall not permit any Tenant Lessee to prepay Rents pursuant to the terms of any Lease more than thirty (30) days in advance other than the usual prepayment of Rent as would result from the acceptance on the first day of each month of the Rent for the ensuing month, according to the terms of any Leases. Borrower shall default under its Lease, Mortgagor shallpromptly (i) notify Agent, in the ordinary course writing, of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive any defaults by any Lessee or waive claims or discharge the Tenant from its obligations Lease guarantor under the a Major Lease or terminate or accept a surrender after Borrower becomes aware of the same and (ii) deliver to Agent a copy of all termination notices, default notices, notices claiming any offset rights and all other material notices from any Lessee or Lease without the prior written consent of Mortgageeguarantor under a Major Lease to Borrower or from Borrower to any Lessee or Lease guarantor.
(d) If Mortgagor fails Borrower shall furnish to perform any obligations Agent, within ten (10) days after a request by Agent to do so, a certified rent roll containing the names of Mortgagor under all Lessees, the terms and expiration date of their respective Leases, the space occupied, the rents payable and the securities deposited thereunder, and the name of any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failureguarantor thereof, together with interest thereon from the date incurred at an annual rate equal true copies of each Lease and any Lease guaranty thereof or amendments and supplements thereto not previously furnished to nine Agent and one half percent (9.5%) in excess of the one month LIBOR Rate (any other information with respect to Borrower’s leasing activities and policies as set forth and defined in the Bond Lease)Agent shall reasonably request.
(e) For purposes Borrower shall appear in and defend any action or proceeding arising under, occurring out of, or in any manner connected with, any Leases and Lease guaranties or the obligations, duties, or liabilities of Borrower or any Lessee or any Lease guarantor thereunder. Borrower shall pay all costs and expenses of Agent, including reasonable attorneys’ fees, in any action or proceeding in which Agent may appear.
(f) Borrower shall use commercially reasonable efforts to enforce or secure the performance of the obligations of the Lessees and Lease guarantor under Major Leases in all material respects. Borrower shall not waive, discount, set-off, compromise, or in any manner release or discharge any material obligation of any Lessee or Lease guarantor under any Major Lease and Lease guaranty thereof.
(g) Borrower shall not, and shall not allow any Person on behalf of Borrower, to enter into any agreement with any Person to pay lease commissions with regard to any Lease which agreement is not subordinate to Agent’s rights, interests and claims under the Loan Documents.
(h) All Leases entered into by Borrower shall be made expressly subject and subordinate to the Mortgage and the terms and provisions thereof and shall contain provisions obligating the Lessees thereunder to attorn to Agent or any purchaser therefrom upon its written demand in the event Agent or such purchaser succeeds to the interest of Borrower under such Leases. Each Lease guaranty shall provide that it shall remain in full force and effect, and that guarantor thereunder shall perform for the benefit of Agent or such purchaser, upon attornment by the Lessee.
(i) Borrower shall pay all reasonable, out-of-pocket expenses of Agent, including Agent’s Counsel Fees, incurred in connection with the review of any proposed Lease, amendment, modification, waiver, supplement, termination or surrender under this Mortgage, the following terms shall have the following meanings:Section 5.10.
Appears in 1 contract
Leases. (a) Notwithstanding anything to the contrary herein, Mortgagor Borrower shall not enter into or amend any Lease without Mortgagee’s Lender's prior written consent, and shall furnish to MortgageeLender, upon execution, a complete and fully executed copy of each Lease. Mortgagor Borrower shall provide Mortgagee Lender with a copy of each proposed Lease requiring the consent of Mortgagee Lender and with any information requested by Mortgagee Lender regarding the proposed Tenant thereunder. Mortgagee Lender may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s Lender's option.
(b) Mortgagor Borrower shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not thereunder;not permit the prepayment of any rents or other payments due for more than one thirty (130) month days in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor Borrower shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of MortgageeLease.
(d) If Mortgagor Borrower fails to perform any obligations of Mortgagor Borrower under any Lease or if Mortgagee Lender becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor Borrower to so perform, Mortgagee Lender may, but shall not be obligated to, without waiving or releasing Mortgagor Borrower from any Obligationobligation in this Agreement or any of the other Loan Documents, remedy such failure, and Mortgagor Borrower agrees to repay upon demand all sums incurred by Mortgagee Lender in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Default Rate (as set forth and defined in the Bond LeaseNote).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (a) Notwithstanding anything All Leases and all renewals of Leases executed after the date hereof shall (i) provide for rental rates comparable to existing local market rates for similar properties taking into account the other terms of the Lease, (ii) be on commercially reasonable terms, (iii) provide that such Lease is subordinate to the contrary hereinMortgage and that the lessee will attorn to Lender and any purchaser at a foreclosure sale and (iv) not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents. All Major Leases and all renewals, Mortgagor amendments and modifications thereof executed after the date hereof shall be subject to Lender’s prior approval, which approval shall not be unreasonably withheld, conditioned or delayed; provided, however, that Borrower may, without Lender’s consent (x) enter into renewals, modifications, amendments, expansions and terminations of existing Leases that are not Major Leases and (y) enter into new Leases that are not Major Leases. Lender shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement in the form annexed as Schedule IV to Tenants under future Leases approved or deemed approved by Lender promptly upon request with such commercially reasonable changes as may be requested by Tenants, from time to time, and which are reasonably acceptable to Lender. All Leases that are not Major Leases which provide for tenant improvements, tenant allowances and leasing commissions, in the aggregate in excess of $50.00 per rentable square foot, are subject to Lender’s prior approval, such approval not to be unreasonably withheld, conditioned or delayed. Moreover, it shall be reasonable for Lender to withhold its approval of any Lease without Mortgagee’s prior written consentwhich provides for an excess of $50.00 per rentable square foot for tenant improvements, tenant allowances and shall furnish leasing commissions in the aggregate unless Borrower provides Lender evidence that it has the financial ability (e.g., adequate funds on deposit with Senior Mezzanine Lender which are available for the payment of same) to Mortgagee, upon execution, a complete and fully executed copy fund such excess before Lender disburses same out of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s optionvarious Reserve Funds.
(b) Mortgagor shallBorrower (i) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) shall use commercially reasonable efforts to enforce the terms, at its cost covenants and expense, perform each obligation conditions contained in the Leases upon the part of the lessee thereunder to be observed or performed by in a commercially reasonable manner, provided, however, Borrower shall not terminate or accept a surrender of a Major Lease without Lender’s prior approval which approval shall not be unreasonably withheld, delayed or conditioned provided further, however, that it shall not be unreasonable for Lender to withhold its approval if the landlord under each Lease; not borrow against, pledge Senior Mezzanine Lender or further assign the Junior A Mezzanine Lender or the Junior B Mezzanine Lender (or any rents or other payments due thereunder; not permit the prepayment holder of any rents loan which refinanced such mezzanine loans) do not approve such termination or other payments due for surrender, (iii) shall not collect any of the Rents more than one (1) month in advanceadvance (other than security deposits and lease termination payments permitted under Leases permitted hereunder); (iv) shall not execute any assignment of lessor’s interest in the Leases or the Rents (except as contemplated by the Loan Documents); and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease(v) shall hold all security deposits under all Leases in accordance with Legal Requirements. Upon request, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant Borrower shall furnish Lender with executed copies of any liability for performance of its obligations thereunderall Leases.
(c) Notwithstanding anything to the contrary contained in this Section 4.1.9:
(i) whenever Lender’s approval or consent is required pursuant to the provisions of this Section 4.1.9, Borrower shall have the right to submit a term sheet for any Major Lease or any renewal, modification or amendment thereof to Lender for Lender’s approval, such approval not to be unreasonably withheld, delayed or conditioned. Any such term sheet submitted to Lender shall set forth all material terms of the proposed Major Lease (or renewal, modification or amendment thereof) including, without limitation, identity of tenant, square footage, term, rent, rent credits, abatements, work allowances and tenant improvements to be constructed by Borrower and include a request containing a legend in bold letters stating that upon Lender’s failure to respond within ten (10) Business Days the lease transaction described in the term sheet shall be deemed consented to and approved. Lender shall respond within ten (10) Business Days after Lender’s receipt of Borrower’s written request for approval or consent of such term sheet. If Lender fails to respond to such request within ten (10) Business Days, Lender shall be deemed to have approved or consented to such term sheet;
(ii) whenever Lender’s approval or consent is required pursuant to the provisions of this Section 4.1.9 for any Tenant matter that Lender has not previously approved a term sheet pursuant to Section 4.1.9(c)(i) above, Lender shall default under its respond within ten (10) Business Days after Lender’s receipt of Borrower’s written request for such approval or consent which contains a legend in bold letters stating that Lender’s failure to respond within ten (10) Business Days shall be deemed consent or approved. If Lender fails to respond to such request within ten (10) Business Days, Lender shall be deemed to have approved or consented to the matter for which lender’s consent or approval was sought;
(iii) whenever Lender’s approval or consent is required pursuant to the provisions of this Section 4.1.9 for any matter that Lender has previously approved a term sheet pursuant to Section 4.1.9(c)(i) above, Lender shall respond within ten (10) Business Days after Lender’s receipt of Borrower’s written request for such approval or consent containing a legend in bold letters stating that Lender’s failure to respond within ten (10) Business Days shall be deemed consent or approval. If Lender fails to respond to such request within ten (10) Business Days, Lender shall be deemed to have approved or consented to the matter for which Lender’s consent or approval was sought. The ten (10) Business Day periods contained in this subsection (iii) shall be reduced to three (3) Business Days if the matter involves a new Major Lease or an amended and restated Major Lease, Mortgagor shalla term sheet is approved, a blacklined copy of the new document against the Approved Lease Form is delivered to Lender and an Officer’s Certificate is delivered to Lender, in each case indicating that the ordinary course of businessnew document’s only differences with the Approved Lease Form are as reflected in the approved term sheet and those which do not materially adversely affect the Property, exercise sound business judgment Borrower or Lender;
(iv) in the event that Lender shall have approved (or be deemed to have approved) a term sheet submitted by Borrower with respect to a certain Lease, Lender shall not withhold its approval or consent with respect to such defaultLease on the basis of any provisions of such Lease dealing with the items contained in the approved term sheet or any other provisions which do not materially adversely affect the Property, but may not discountBorrower or Lender; and
(v) Borrower shall have the right, compromisewithout the consent or approval of Lender in any instance, forgive or waive claims or discharge the Tenant from its obligations under the Lease or to terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or that is notified by any Tenant of not a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Major Lease).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
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Leases. (a) Notwithstanding anything to the contrary herein, Mortgagor Borrower shall not enter into any Lease without Mortgagee’s prior written consentlease or similar agreement affecting any portion of the Project other than an Approved Lease. For purposes hereof, and an “Approved Lease” shall furnish to Mortgagee, upon execution, a complete and mean:
(i) each Existing Lease;
(ii) any other fully executed copy lease between Borrower and a particular tenant relating to any portion of each Leasethe Project which has been approved in writing by Lender; or
(iii) a Minor Lease on a lease form pre-approved by Lender. Mortgagor In any event, not more than five percent (5%) of the Leasable Space at the Project shall provide Mortgagee be leased to any one or more Affiliates of Borrower or either Guarantor or any Person in which Borrower or Guarantor possesses an ownership interest. Within fifteen (15) business days after receipt by Lender of Borrower’s written request for Lender’s approval or rejection of a proposed Approved Lease together with a copy of each such proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding Approved Lease, Lender shall notify Borrower whether the proposed Tenant thereunderApproved Lease is approved or rejected. Mortgagee may declare If Lender fails to so notify Borrower within such time period, Lender shall be deemed to have approved such proposed Approved Lease. Borrower shall deliver to Lender a true correct and complete copy of each Approved Lease to be prior or subordinate to this Mortgagewithin ten (10) days following its execution. In conjunction with the execution of an Approved Lease, at Mortgagee’s option.the tenant thereunder shall execute an Estoppel Certificate and Subordination, Non-Disturbance and Attornment Agreement in form attached hereto as Exhibit E.
(b) Mortgagor shall, Tenant security deposits shall be maintained in accounts with Lender and shall be fully funded and “in balance” at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunderall times.
(c) If any Tenant Without in each case obtaining the prior consent of Lender (which shall default under its Leasenot be unreasonably withheld), Mortgagor shallBorrower shall not, except in the ordinary course case of businessMinor Leases, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease (i) cancel or terminate or accept a the surrender of any Approved Lease other than by the terms of such Approved Lease without or following a default by the prior written consent tenant thereunder, (ii) amend, modify or otherwise change any such Approved Lease so as to decrease the term or reduce the rental due, or discount, compromise or forgive any amounts due, or diminish any tenant’s obligation with regard to the payment of Mortgageetaxes, insurance and other sums, (iii) permit the payment of rent more than thirty (30) days in advance of the due date under any such Approved Lease, or anticipate, encumber or assign the rents or any part thereof or any interest therein, (iv) release any guarantor or surety of any tenant’s obligations under any such Approved Lease, (v) waive any material default under or material breach of any such Approved Lease, or (vi) take any other action in connection with any such Approved Lease which would materially impair the value of the rights or interests of Borrower thereunder.
(d) If Mortgagor fails to Borrower shall promptly (i) perform any obligations all of Mortgagor under any the provisions of each Approved Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor the landlord thereunder to so performbe performed, Mortgagee may(ii) enforce all of the material provisions of such Approved Leases on the part of the tenants thereunder to be performed, but shall not be obligated to(iii) appear in and defend any action proceeding arising under, without waiving growing out of or releasing Mortgagor from in any Obligationmanner connected with such Approved Lease or the obligations of Borrower as landlord or of the tenants thereunder, remedy such failure(iv) deliver to Lender, within ten (10) Business Days after request by Lender, a written statement containing the name of all tenants, the terms of each Approved Lease and the spaces occupied and rentals payable thereunder, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee a statement of any Approved Lease which is then in remedying any such failuredefault, together with interest thereon from including the date incurred at an annual rate equal to nine nature and one half percent (9.5%) in excess magnitude of the one month LIBOR Rate default and (as set forth and defined in the Bond Lease)v) deliver to Lender, a copy of each Approved Lease not previously provided to Lender.
(e) For purposes Any early lease termination lump sum payment or other lump sum lease payment received by the Borrower from tenants under any Approved Lease shall be remitted to Lender to reduce the outstanding principal balance of this Mortgage, the following terms Loan. Payments of the Loan shall have be applied to the following meanings:outstanding principal balance of the Loan first and not the Existing Loan.
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Leases. (a) Notwithstanding anything to the contrary herein, Mortgagor Borrower shall not enter into or amend any Lease without Mortgagee’s Lender's prior written consent, and shall furnish to MortgageeLender, upon execution, a complete and fully executed copy of each Lease. Mortgagor Borrower shall provide Mortgagee Lender with a copy of each proposed Lease requiring the consent of Mortgagee Lender and with any information requested by Mortgagee Lender regarding the proposed Tenant thereunder. Mortgagee Lender may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s Lender's option.
(b) Mortgagor Borrower shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one thirty (130) month days in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor Borrower shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of MortgageeLender.
(d) If Mortgagor Borrower fails to perform any obligations of Mortgagor Borrower under any Lease or if Mortgagee Lender becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor Borrower to so perform, Mortgagee Lender may, but shall not be obligated to, without waiving or releasing Mortgagor Borrower from any Obligationobligation in this Agreement or any of the other Loan Documents, remedy such failure, and Mortgagor Borrower agrees to repay upon demand all sums incurred by Mortgagee Lender in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Default Rate (as set forth and defined in the Bond LeaseNote).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
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Leases. (a) Notwithstanding anything Upon Lender’s request, Borrower shall furnish Lender with executed copies of all Leases, together with a detailed breakdown of income and cost associated therewith to the contrary hereinextent the same has been prepared by Borrower. All new Leases and renewals or amendments of Leases must be entered into on an arms-length basis with Tenants whose identity and creditworthiness, Mortgagor shall not enter into any Lease without Mortgageein Borrower’s prior written consentgood faith judgment, is appropriate for tenancy in property of comparable quality, must provide for rental rates and other economic terms which, in Borrower’s good faith judgment, taken as a whole, are at least equivalent to then-existing market rates, based on the applicable market, and shall furnish must contain terms and conditions that are commercially reasonable (in each case, unless Lender consents to Mortgagee, upon execution, a complete such Lease in its sole discretion). All new Leases must provide that they are subject and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgageany current or future mortgage financing on the applicable Property and that the Tenant agrees to attorn to any foreclosing mortgagee at such mortgagee’s request, at Mortgageeprovided such mortgagee agrees to not disturb such Tenant’s optiontenancy except in accordance with its Lease.
(b) Mortgagor shallAll new Leases which are Major Leases, at and all terminations, renewals and material amendments of Major Leases, and any surrender of rights under any Major Lease, shall be subject to the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed. To facilitate Borrower’s leasing process, Borrower shall have the right to present prospective leasing transactions to Lender for its cost and expense, perform each obligation approval prior to be performed by the landlord under each negotiation of a final Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit . Such presentation shall include a summary term sheet of all material terms of the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its proposed Lease or sublet a draft of the premises covered proposed Lease together with any additional information concerning such proposed Lease and the proposed Tenant thereunder as may be reasonably requested by its LeaseLender (the “Lease Term Sheet”). Each request for approval of a Lease or a Lease Term Sheet shall be submitted to Lender in an envelope marked “URGENT – LENDER’S ATTENTION REQUIRED WITHIN 7 BUSINESS DAYS”, unless required to do so by together with (i) a copy of the proposed Lease or the Lease Term Sheet, (ii) a summary of the economic terms thereof and then only any termination options contained therein together with a detailed breakdown of income and costs associated with the proposed Lease, and (iii) copies of all written materials obtained by the applicable Borrower in connection with its evaluation of the creditworthiness of the proposed Tenant, and shall be deemed approved if Lender shall not have notified Borrower in writing of its disapproval thereof and the reasons for such assignment disapproval within three Business Days after Borrower shall have given Lender written notice confirming that at least seven Business Days have elapsed since such submission, which written notice shall be submitted to Lender in an envelope marked “URGENT – SECOND AND FINAL NOTICE – LENDER’S ATTENTION REQUIRED BY [DATE]”. If Lender approves or is deemed to have approved the Lease Term Sheet, Lender’s approval of the final Lease shall be limited to Lender’s reasonable confirmation that the final Lease does not work (i) deviate in any material adverse respect from the terms set forth on the Lease Term Sheet or contain any material adverse terms not set forth in the Lease Term Sheet, or (ii) deviate in any material respect from the approved Lease form (and otherwise such final Lease shall be subject to relieve the Tenant Lender’s reasonable written approval). Borrower shall deliver to Lender a copy of any liability for performance of its obligations thereunderLease executed pursuant to a Lease Term Sheet together with an Officer’s Certificate indicating any material deviations from such Lease Term Sheet.
(c) If any Tenant Borrower shall default (i) observe and perform all the material obligations imposed upon the lessor under its Leasethe Leases; (ii) enforce, Mortgagor shallto the extent commercially reasonable, all of the material terms, covenants and conditions contained in the ordinary course Leases on the part of businessthe lessee thereunder to be observed or performed, exercise sound business judgment with respect to such defaultshort of termination thereof, but except that Borrower may terminate any Lease following a material default thereunder by the respective Tenant; (iii) not discount, compromise, forgive collect any of the rents thereunder more than one month in advance; (iv) not execute any assignment of lessor’s interest in the Leases or waive claims or discharge associated rents other than the Tenant from its obligations assignments of rents and leases under the Lease Mortgages; and (v) not cancel or terminate or accept a surrender any guarantee of any of the Lease Major Leases without the prior written consent of MortgageeLender. Borrower shall deliver to each new Tenant a Tenant Notice upon execution of such Tenant’s Lease or include same in such Tenant’s Lease or invoices, and promptly thereafter deliver to Lender a copy thereof and evidence of such Tenant’s receipt thereof.
(d) To the extent required by applicable law, security deposits of Tenants under all Leases, whether held in cash or any other form, shall not be commingled with any other funds of Borrower and, if cash shall be deposited by Borrower in an Eligible Account or such other account at such commercial or savings bank as may be reasonably satisfactory to Lender, which account (if any) is hereby pledged to Lender. Borrower shall, upon Lender’s request, provide Lender with evidence reasonably satisfactory to Lender of Borrower’s compliance with the foregoing. During the continuance of any Event of Default, Borrower shall, upon Lender’s request, deposit with Lender in an Eligible Account pledged to Lender an amount equal to the aggregate security deposits of the Tenants (and any interest theretofore earned on such security deposits and actually received by Borrower) which Borrower had not returned to the applicable Tenants or applied in accordance with the terms of the applicable Lease.
(e) Whenever a Lease is terminated, whether by buy-out, cancellation, default or otherwise, and Borrower is entitled to any payment, fee or penalty in respect of such termination (a “Termination Fee”), Borrower shall promptly cause such Termination Fee to be deposited into an Eligible Account pledged to Lender. Provided no Event of Default has occurred and is continuing, (i) Lender shall disburse such Termination Fee to Borrower at the written request of Borrower in respect of Leasing Commissions and Tenant Improvement costs incurred by Borrower in connection with replacement Leases at any Properties, other than any Property with an Aggregate Allocated Loan Amount of zero, in each case provided such Lease is entered into in accordance with the terms of this Agreement.
(f) Within ten Business Days after receipt of written request therefor, provided Lender has received a copy of the executed corresponding Lease, Lender shall execute and deliver to Borrower a subordination, non-disturbance and attornment agreement (an “SNDA”). If Mortgagor fails the form of the SNDA shall be prescribed by the Lease in question, and Lender shall have approved (or been deemed, in accordance with Section 5.7(b) hereof, to perform have approved) such Lease (and the form of SNDA was attached to the draft Lease that was delivered to Lender as part of Borrower’s request for approval), Lender shall execute and deliver the SNDA in the form prescribed by such approved Lease. Notwithstanding the foregoing, in the case of any obligations Lease as to which Lender’s approval is not required pursuant to this Section 5.7 where such tenant thereunder requests an SNDA, the SNDA to be executed and delivered by Lender shall be in substantially the form attached hereto as Exhibit G, and such form shall also be attached to Borrower’s standard form of Mortgagor Lease as approved by Lender. Lender agrees to reasonably negotiate the terms of the SNDA with any Tenant under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee mayLease, but shall not be obligated to, without waiving or releasing Mortgagor required to execute an SNDA that differs in any material respect from any Obligation, remedy such failure, the form attached hereto as Exhibit G. All reasonable out-of-pocket attorneys’ fees and Mortgagor agrees to repay upon demand all sums disbursements incurred by Mortgagee Lender in remedying any connection with such failureSNDA shall be payable by Borrower within ten Business Days after Lender’s written request therefor, together with interest thereon from whether or not the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)SNDA is ultimately executed and/or recorded.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (a) Notwithstanding anything Borrower shall deliver copies of all Space Leases, and amendments, modifications and renewals thereof entered into after the date hereof, to Lender. All new Space Leases shall provide for rental rates comparable to then existing local market rates and terms and conditions which constitute good and prudent business practice and are consistent with prevailing market terms and conditions, and, except for Space Leases with the Manager not in excess of 4,000 square feet with respect to any Project, shall be arms-length transactions. Borrower has delivered to Lender, and Lender has approved, standard forms of Space Lease for the Projects, which provide that they are subordinate to the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, Loan and shall furnish that the lessees thereunder will attorn to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s optionLender.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; Borrower shall not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its enter into a proposed Major Space Lease or sublet the premises covered by its Leasea proposed renewal, unless required to do so by the extension or modification (affecting monetary terms thereof and then only if such assignment does not work to relieve the Tenant and/or other terms that are material in nature) of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the an existing Major Space Lease without the prior written consent of Mortgagee.
Lender which consent shall not, so long as no Event of Default exists, be unreasonably withheld or delayed (dit being agreed and acknowledged by Borrower that Lender may consider, in connection with a request for its consent under this subsection (b), inter alia, Borrower’s ability to pay the anticipated tenant improvement costs and leasing commissions); provided, however, that with respect to any existing Major Space Lease, the foregoing shall not be deemed to limit the right of any tenant to extend or renew its lease pursuant to any such right or option in favor of any such tenant expressly set forth in its Lease. Any request by Borrower for Lender’s approval of a proposed Major Space Lease shall be in writing and shall be accompanied by a copy of such proposed Major Space Lease, together with a summary of the material terms thereof (including, but not limited to, the proposed tenant improvement costs and leasing commissions) and a copy of such proposed lease as blacklined to show changes from the Standard Lease Form approved by Lender. Lender shall approve or disapprove each proposed Major Space Lease or proposed renewal, extension or modification of an existing Major Space Lease for which Lender’s approval is required under this Agreement within ten (10) Business Days after the submission by Borrower to Lender of such written request for such approval, after which such proposed Major Space Lease shall be deemed to have been approved by Lender. If Mortgagor fails requested by Borrower, within five (5) Business Days after request therefor, Lender will grant conditional approval of proposed Major Space Leases or proposed renewals, extensions or modifications of existing Major Space Leases based upon the initial summary of material terms, provided that Lender shall retain the right to perform disapprove any obligations such proposed Major Space Lease or proposed renewal, extension or modification of Mortgagor under an existing Major Space Lease, if subsequent to any preliminary approval material changes are made to the terms previously approved by Lender, or additional material terms are added that had not previously been considered and approved by Lender in connection with such proposed Major Space Lease or proposed renewal, extension or modification of an existing Major Space Lease or if Mortgagee becomes aware the form of proposed Major Space Lease reflects material revisions to the Standard Lease Form that are not either (y) required to reflect the approved terms and conditions of the proposed Major Space Lease or (z) consistent with changes then being made generally to lease documents in the then current leasing market for comparable space in similar buildings in the locale of the Project in question. If requested by Borrower with respect to a tenant (i) under a proposed Major Space Lease, and/or (ii) that is notified by any Tenant of a failure on the part of Mortgagor to so perform“national” or “credit” tenant, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor Lender agrees to repay upon demand all sums incurred enter into its standard form of Subordination, Non-disturbance and Attornment agreement with such tenant, with such revisions to such form as are requested by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal proposed tenant and are reasonably acceptable to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)Lender.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (a) Notwithstanding anything Prior to execution of any Leases of space in the Improvements after the date hereof, Borrower shall submit to Lender, for Lender’s prior approval, which approval shall not be unreasonably withheld, a copy of the form Lease Borrower plans to use in leasing space in the Improvements or at the Property. All such Leases of space in the Improvements or at the Property shall be on terms consistent with the terms for similar leases in the market area of the Premises, shall provide for free rent only if the same is consistent with prevailing market conditions and shall provide for market rents then prevailing in the market area of the Premises. Such Leases shall also provide for security deposits in reasonable amounts consistent with prevailing market conditions. Borrower shall also submit to Lender for Lender’s approval, which approval shall not be unreasonably withheld, prior to the contrary hereinexecution thereof, Mortgagor any proposed Lease of the Improvements or any portion thereof that differs materially and adversely from the aforementioned form Lease. Borrower shall not enter into execute any Lease without Mortgagee’s prior written consentfor all or a substantial portion of the Property, except for an actual occupancy by the Tenant, lessee or licensee thereunder, and shall at all times promptly and faithfully perform, or cause to be performed, all of the covenants, conditions and agreements contained in all Leases with respect to the Property, now or hereafter existing, on the part of the landlord, lessor or licensor thereunder to be kept and performed. Borrower shall furnish to MortgageeLender, upon executionwithin sixty (60) days after a request by Lender to do so, but in any event by January 1 of each year, a complete current Rent Roll, certified by Borrower as being true and fully executed copy correct, containing the names of all Tenants with respect to the Property, the terms of their respective Leases, the spaces occupied and the rentals or fees payable thereunder and the amount of each LeaseTenant’s security deposit. Mortgagor Upon the request of Lender, Borrower shall provide Mortgagee with deliver to Lender a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereundersuch Lease. Mortgagee may declare each Lease Borrower shall not do or suffer to be prior done any act, or subordinate omit to this Mortgagetake any action, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed that might result in a default by the landlord landlord, lessor or licensor under each Lease; any such Lease or allow the Tenant thereunder to withhold payment of rent or cancel or terminate same and shall not borrow against, pledge or further assign any rents such Lease or any such Rents and Profits. Borrower, at no cost or expense to Lender, shall enforce, short of termination, the performance and observance of each and every condition and covenant of each of the parties under such Leases and Borrower shall not anticipate, discount, release, waive, compromise or otherwise discharge any rent payable under any of the Leases. Notwithstanding the foregoing, at any time and from time to time, Lender shall be entitled to, and Borrower hereby grants to Lender the right to, undertake any and all action as may be required (in the sole discretion of Lender) to cure any default, or event which with the passage of time following any notice and cure period shall constitute a default by Borrower, under such Leases. Borrower shall not, without the prior written consent of Lender, modify any of the Leases, terminate or accept the surrender of any Leases, waive or release any other payments due thereunder; party from the performance or observance of any obligation or condition under such Leases except, with respect only to Leases affecting less than the lesser of (x) five percent (5%) of the gross leaseable area of the Improvements and (y) 2,500 square feet and having a term of three (3) years or less, in the normal course of business in a manner which is consistent with sound and customary leasing and management practices for similar properties in the community in which the Property is located. Borrower shall not permit the prepayment of any rents under any of the Leases for more than one (1) month prior to the due date thereof.
(b) Each Lease executed after the date hereof affecting any of the Premises or other payments due the Improvements must provide, in a manner approved by Lender, that the Tenant will recognize as its landlord, lessor or licensor, as applicable, and attorn to any person succeeding to the interest of Borrower upon any foreclosure of this Deed of Trust or deed in lieu of foreclosure. Each such Lease shall also provide that, upon request of said successor-in-interest, the Tenant shall execute and deliver an instrument or instruments confirming its attornment as provided for in this Section; provided, however, that neither Lender nor any successor-in-interest shall be bound by any payment of rent for more than one (1) month in advance; and not permit , or any Tenant to assign its amendment or modification of said Lease made without the express written consent of Lender or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereundersaid successor-in-interest.
(c) If Upon the occurrence of an Event of Default under this Deed of Trust, whether before or after the whole principal sum secured hereby is declared to be immediately due or whether before or after the institution of legal proceedings to foreclose this Deed of Trust, forthwith, upon demand of Lender, Borrower shall surrender to Lender, and Lender shall be entitled to take actual possession of, the Property or any Tenant part thereof personally, or by its agent or attorneys. In such event, Lender shall default under its Leasehave, Mortgagor shalland Borrower hereby gives and grants to Lender, in the ordinary course of businessright, exercise sound business judgment power and authority to make and enter into Leases with respect to the Property or portions thereof for such defaultrents and for such periods of occupancy and upon conditions and provisions as Lender may deem desirable in its sole discretion, but and Borrower expressly acknowledges and agrees that the term of any such Lease may extend beyond the date of any foreclosure sale of the Property, it being the intention of Borrower that in such event Lender shall be deemed to be and shall be the attorney-in-fact of Borrower for the purpose of making and entering into Leases of parts or portions of the Property for the rents and upon the terms, conditions and provisions deemed desirable to Lender in its sole discretion and with like effect as if such Leases had been made by Borrower as the owner in fee simple of the Property free and clear of any conditions or limitations established by this Deed of Trust. The power and authority hereby given and granted by Borrower to Lender shall be deemed to be coupled with an interest, shall not discountbe revocable by Borrower so long as any portion of the Debt is outstanding, compromiseshall survive the voluntary or involuntary dissolution of Borrower and shall not be affected by any disability or incapacity suffered by Borrower subsequent to the date hereof. In connection with any action taken by Lender pursuant to this Section, forgive Lender shall not be liable for any loss sustained by Borrower resulting from any failure to let the Property, or waive claims any part thereof, or from any other act or omission of Lender in managing the Property, nor shall Lender be obligated to perform or discharge the Tenant from its obligations under the Lease any obligation, duty or terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor liability under any Lease covering the Property or if Mortgagee becomes aware any part thereof or under or by reason of this instrument or is notified the exercise of rights or remedies hereunder. Borrower shall, and does hereby, indemnify Lender for, and hold Lender harmless from, any and all claims, actions, demands, liabilities, loss or damage which may or might be incurred by Lender under any Tenant such Lease or under this Deed of Trust or by the exercise of rights or remedies hereunder and from any and all claims and demands whatsoever which may be asserted against Lender by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants or agreements contained in any such Lease other than those finally determined by a failure on court of competent jurisdiction to have resulted solely from the part gross negligence or willful misconduct of Mortgagor to so performLender. Should Lender incur any such liability, Mortgagee maythe amount thereof, but shall not be obligated toincluding, without waiving or releasing Mortgagor from any Obligationlimitation, remedy such failurecosts, expenses and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failurereasonable attorneys’ fees, together with interest thereon at the Default Interest Rate from the date incurred at an annual rate equal by Lender until actually paid by Borrower, shall be immediately due and payable to nine Lender by Borrower on demand and one half percent (9.5%) in excess shall be secured hereby and by all of the one month LIBOR Rate (as set forth other Loan Documents securing all or any part of the Debt. Nothing in this Section shall impose on Lender any duty, obligation or responsibility for the control, care, management or repair of the Property, or for the carrying out of any of the terms and defined conditions of any such Lease, nor shall it operate to make Lender responsible or liable for any waste committed on the Property by the Tenants or by any other parties or for any dangerous or defective condition of the Property, or for any negligence in the Bond Lease)management, upkeep, repair or control of the Property. Borrower hereby assents to, ratifies and confirms any and all actions of Lender with respect to the Property taken under this Section.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (a) Notwithstanding anything Within sixty (60) days after the Closing Date, Borrower shall provide to Administrative Agent a copy of Borrower’s standard form of lease for the Property, which standard form lease shall be subject to the contrary hereinprior written approval of Administrative Agent, Mortgagor which approval shall not enter into any Lease be unreasonably withheld, conditioned, or delayed. Subject to Section 5.23(c) below, no Leases, or renewals, modifications or extensions of Leases, shall be executed after the date hereof without MortgageeAdministrative Agent’s prior written consentapproval, which consent shall not be unreasonably withheld, conditioned or delayed. In the event that Administrative Agent approval of a Lease, or a renewal, modification or extension of a Lease is required pursuant to the terms of this Agreement and Borrower submits to Administrative Agent a written request for approval of such Lease, or such renewal, modification or extension, which written request shall include (i) the following in all capital, bolded, block letters on the first page thereof: “LEASE APPROVAL: THE FOLLOWING REQUEST REQUIRES A RESPONSE WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT. FAILURE TO DO SO WILL BE DEEMED AN APPROVAL OF THE REQUEST”, and shall furnish to Mortgagee(ii) a summary of the economic terms of the proposed Lease, upon executionrenewal, a complete and fully executed copy modification or extension (as applicable), any non-economic terms that may materially vary from the form lease or existing Lease (as applicable), the Borrower’s calculation of each the Net Effective Rent under the proposed Lease. Mortgagor shall provide Mortgagee , or the modified, renewed or extended Lease, as applicable, together with a copy of each proposed Lease requiring the consent of Mortgagee and with any financial information requested by Mortgagee regarding on the proposed Tenant thereunderas Administrative Agent may reasonably require (to the extent reasonably available to Borrower), Administrative Agent shall provide written response to Borrower within five (5) Business Days of Administrative Agent’s actual receipt of Borrower’s request and required information, or Administrative Agent shall be deemed to have approved or consented to such request. Mortgagee may declare each Lease to For Leases requiring Administrative Agent’s approval, any written request by Borrower for Administrative Agent’s approval shall be prior or subordinate to this Mortgage, at Mortgagee’s optiondeemed complete if it includes a term sheet in the form and containing the applicable information reasonably approved by Borrower and Administrative Agent.
(b) Mortgagor shall, at its cost Borrower (i) shall observe and expense, perform each obligation to be performed by the obligations imposed upon the landlord under each the Leases in a commercially reasonable manner; (ii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenants thereunder to be observed or performed in a commercially reasonable manner, provided, however, that Borrower shall not terminate or accept a surrender of a Lease without Administrative Agent’s prior approval (not to be unreasonably withheld, conditioned or delayed), unless it (A) is done at a time that no Event of Default shall have occurred and be continuing, (B) is done in the ordinary course of business of the Borrower and (C) is done on account of a default by the Tenant under such Lease, of if the Tenant under such Lease is in bankruptcy or is otherwise insolvent; (iii) shall not borrow against, pledge or further assign collect any of the rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advanceadvance unless consented to in writing by Administrative Agent (not to be unreasonably withheld, conditioned or delayed); (iv) shall deposit all rents and other income from the Property into the Collections Account; (v) shall not execute any assignment of the landlord’s interest in the Leases or the rents (except as contemplated by the Loan Documents); and (vi) shall not permit alter, modify or change any Tenant Lease so as to assign its Lease or sublet reduce the premises covered by its amount of rent, decrease the term of the Lease, unless required to do so by materially reduce the terms thereof and then only if such assignment does not work to relieve obligations of the Tenant or increase materially the obligations of any liability for performance the landlord thereunder, without, in each case, Administrative Agent’s prior written approval, which approval shall not be unreasonably withheld or delayed. Promptly upon request, Borrower shall furnish Administrative Agent with executed copies of its obligations thereunderall Leases.
(c) If any Tenant shall default under its Borrower may enter into a new Lease, Mortgagor shallor renew or extend an existing Lease, terminate a Lease as set forth in the ordinary course of businessSection 5.23(b)(ii) above, exercise sound business judgment with respect to such defaultor otherwise modify a Lease (except as set forth in Section 5.23(b)(vi) above), but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.Administrative Agent, provided that such proposed Lease or existing Lease renewal or extension or modification satisfies the following requirements (each an “Pre-Approved Lease”):
(di) If Mortgagor fails is an arm’s-length transaction with a bona fide, independent third party tenant who is not an affiliate of Borrower or Guarantor;
(ii) the Lease is written on the standard form lease (which form has been approved by Administrative Agent in accordance with the provisions of Section 5.23(a) hereof), with no material changes, additions or deletions (other than to perform any obligations identify the lessee and complete other information missing from the form), other than those negotiated in accordance with prudent leasing practices for comparable office buildings in the Orange County market, provided such changes, additions or deletions do not have a material adverse effect on the value of Mortgagor under any the Lease or if Mortgagee becomes aware the protections granted to Lender thereunder;
(iii) provides for Net Effective Base Rent of not less than the Minimum Net Effective Base Rent;
(iv) provides for an initial term of not less than three (3) years (including early termination rights) and not greater than ten (10) years (provided, however, that the initial term together with any extension terms shall not exceed twenty (20) years total);
(v) demises a space of not more than the lesser of (A) 9,000 net rentable square feet, or is notified by (B) one full floor of the Improvements, including any expansion options set forth in the Lease, but excluding any rights of first refusal set forth in the Lease;
(vi) with respect to any lease (A) demising more than fifteen percent (15%) of the net rentable square footage of the Building or (B) income from which constitute fifteen percent (15%) or more of the gross operating income of the Building, the Tenant under the Lease has executed an SNDA substantially in the form attached hereto as Exhibit B, to Lender or another form reasonably acceptable to Administrative Agent, subject to commercially reasonable modifications thereto, unless the applicable Lease contains subordination and attornment provisions satisfactory to Administrative Agent in its reasonable discretion;
(vii) does not contain any exclusivity or co-tenancy provision;
(viii) does not contain any option, offer, or other similar right to acquire all or any portion of the Property;
(ix) Borrower uses commercially reasonable efforts to cause the Tenant under the Lease to deliver an executed Tenant Estoppel Certificate in the form attached hereto as Exhibit C, or in other form reasonably acceptable to Administrative Agent and Borrower, subject to commercially reasonable modifications thereto, within sixty (60) days after the Tenant has accepted the lease space following any delivery obligation of the Borrower; and
(x) does not have a failure material adverse effect on the part value of Mortgagor the Property taken as a whole. All Leases which do not satisfy the requirements set forth in this subsection shall be subject to so performthe prior approval of Administrative Agent and its counsel, Mortgagee mayat Borrower’s expense, but in accordance with the provisions of Section 5.23(a) above. Borrower shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees promptly deliver to repay upon demand Administrative Agent copies of all sums incurred by Mortgagee in remedying any such failure, Leases which are entered into pursuant to this subsection together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess Borrower’s certification that it has satisfied all of the one month LIBOR Rate (as set forth and defined in the Bond Lease).
(e) For purposes conditions of this Mortgage, the following terms shall have the following meanings:subsection.
Appears in 1 contract
Leases. (a) Notwithstanding anything to the contrary herein, except for those Leases listed in Exhibit B attached hereto and made a part hereof (the “Permitted Leases”), Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one thirty (130) month days in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.Lease. 10
(d) If Mortgagor ▇▇▇▇▇▇▇▇▇ fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor ▇▇▇▇▇▇▇▇▇ agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR highest Default Rate (as set forth and defined in the Bond LeaseLoan Agreement).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:: (i) “Lease”: Any lease, occupancy agreement or other document or agreement, written or oral, permitting any Person to use or occupy any part of the Mortgaged Property. (ii) “Person”: Any natural person, corporation, partnership, limited partnership, limited liability company, joint venture, firm, association, trust, unincorporated organization, government or governmental agency or political subdivision or any other entity, whether acting in an individual, fiduciary or other capacity. (iii) “Tenant”: Any person or party using or occupying any part of the Mortgaged Property pursuant to a Lease.
Appears in 1 contract
Sources: Second Amended and Restated Construction Loan Mortgage (Cardinal Ethanol LLC)
Leases. (a) Notwithstanding anything to the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) The Mortgagor shall, at its own cost and expense, perform perform, comply with and discharge all of the obligations of the Mortgagor under all leases and agreements for the use of the Mortgaged Property and use reasonable efforts to enforce or secure the performance of each obligation to be performed by and undertaking of the landlord respective tenants under each Lease; not borrow againstsuch leases and shall appear in and defend, pledge at its own cost and expense, any action or further assign proceeding arising out of or in any rents or other payments due thereunder; not manner connected with the Mortgagor's interest in any leases of the Mortgaged Property. The Mortgagor shall permit the prepayment no surrender nor assignment of any rents tenant's interest under said leases unless the right to assign or other payments due surrender is expressly reserved under the lease, nor receive any installment of rent for more than one (1) month in advance; and not permit any Tenant advance of its due date unless otherwise required pursuant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if of the applicable lease, nor execute any mortgage or create or permit a lien which may be or become superior to any such assignment does not work to relieve the Tenant leases, nor permit a subordination of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect lease to such defaultmortgage or lien. The Mortgagor shall not materially modify or amend the terms of any such leases, but may not discountnor borrow against or pledge the rentals from such leases, compromise, forgive nor exercise or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender any default of the Lease tenant thereunder without the prior written consent of the Mortgagee.
. The Mortgagor agrees to obtain the Mortgagee's prior written approval before entering into any lease with a term of five (d5) If years or more. Should the Mortgagor fails fail to perform perform, comply with or discharge any material obligations of the Mortgagor under any Lease lease or if should the Mortgagee becomes become aware of or is be notified by any Tenant tenant under any lease of a material failure on the part of the Mortgagor to so perform, comply with or discharge its obligations under said lease, the Mortgagee may, but shall not be obligated to, and without further demand upon or notice to the Mortgagor, and without waiving or releasing the Mortgagor from any Obligationobligation in this Mortgage contained, remedy such failure, and the Mortgagor agrees to repay upon demand all sums incurred by the Mortgagee in remedying any such failurefailure together with interest at the Default Rate. All such sums, together with interest thereon as aforesaid, shall become so much additional Secured Indebtedness, but no such advance shall be deemed to relieve the Mortgagor from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess any Event of the one month LIBOR Rate (as set forth and defined in the Bond Lease)Default hereunder.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (a) Notwithstanding anything Borrower shall perform all obligations required to be performed by it as landlord under the contrary herein, Mortgagor Leases. Borrower shall not enter accept payment of more than one month’s rent in advance from any Tenant under a Lease. Except as otherwise approved by Lender in writing, all Leases shall be entered into with bona fide third party subtenants financially capable, at the time of entering into their respective Leases, of performing their obligations under their Leases throughout the terms thereof and shall reflect arm’s-length transactions at the then current market rate for comparable space. Furthermore, Borrower shall not grant any Lease Tenant any rights or options to purchase the Real Estate or any portion thereof or release any Tenant or lease guarantor from any obligation or conditions without MortgageeLender’s prior written consent. Borrower shall obtain Lender’s written approval prior to executing any new Major Lease, modifying, amending, terminating or surrendering an existing Lease, or consenting to any sublease under or assignment of any Major Lease, unless Borrower is unconditionally obligated under the terms of the Major Lease to consent to the sublease or assignment. Lender shall respond to Borrower’s written request for approval of a new Major Lease or modification, amendment, termination or surrender of a Major Lease (which written request must contain the following on the first page thereof in bold, fully-capitalized 12-point or greater text: “IMPORTANT: PURSUANT TO SECTION 6.23 OF THE CREDIT AGREEMENT BETWEEN BORROWER AND LENDER, IF LENDER FAILS TO PROVIDE WRITTEN NOTICE OF THE ATTACHED LEASE OR MODIFICATION, AMENDMENT, TERMINATION OR SURRENDER THEREOF OR SUBLEASE THEREUNDER OR ASSIGNMENT THEREOF WITHIN 10 DAYS FOLLOWING LENDER’S RECEIPT HEREOF, LENDER SHALL BE DEEMED TO HAVE APPROVED THE ATTACHED LEASE OR THE MODIFICATION, AMENDMENT, TERMINATION OR SURRENDER THEREOF, SUBLEASE THEREUNDER, OR ASSIGNMENT THEREOF”) within 10 business days following Lender’s receipt of a copy of the proposed Major Lease, modification or amendment, or request for approval of termination or surrender or approval of sublease or assignment, as the case may be, together with financial statements and references on the prospective tenant and such other information concerning such new Major Lease, sublease or assignment, as the case may be, or prospective tenant, subtenant or assignee, as the case may be, or concerning the modification, amendment, termination or surrender, as the case may be, as Lender shall reasonably require. If Lender shall fail to respond to any such written request by Borrower for such approval within such 10 business day period, Lender shall be deemed to have approved such matter. Borrower shall submit to Lender, within 30 days following execution, all new Leases, all modifications, amendments, consents to assignment or subletting of existing Leases, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy promptly notify Lender of each the termination or surrender of any Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shallBorrower shall promptly deliver to Lender such rent rolls, at its cost leasing schedules and expensereports, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents operating statements or other payments due thereunder; not permit the prepayment leasing information as Lender may request from time to time, and shall promptly notify Lender of any rents material dispute with a Tenant or other payments due for more than one (1) month material adverse change in advance; leasing activity on the Real Estate. Borrower shall use reasonable efforts promptly to obtain and not permit deliver to Lender such subordination, non-disturbance and attornment agreements and tenant estoppel certificates, as Lender may require. In no event shall any approval by Lender of a Lease be a representation of any kind with regard to the Lease or its enforceability, or the financial capacity of any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunderlease guarantor.
(c) If any Tenant Borrower shall default under its Leasefirst apply all income derived from the Real Estate, Mortgagor shallincluding all income from the Leases, in to pay the ordinary course costs and expenses associated with the ownership, maintenance, operation and leasing of businessthe Real Estate that are then due and payable, exercise sound business judgment with respect including all amounts then required to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations be paid under the Lease Loan Documents, before using or terminate applying such income for any other purpose. No such income shall be distributed or accept paid to any partner, shareholder or member, or, if Borrower is a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails trust, to perform any obligations of Mortgagor under any Lease beneficiary or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so performtrustor, Mortgagee mayunless all such costs and expenses which are then due and payable have been paid in full. QAD ▇▇▇▇▇▇ ▇▇▇▇, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:LLC Credit Agreement
Appears in 1 contract
Sources: Credit Agreement (Qad Inc)
Leases. (a) Notwithstanding anything to the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) The Mortgagor shall, at its own cost and expense, perform perform, comply with and discharge all of the obligations of the Mortgagor under all leases and agreements for the use of the Mortgaged Property and use reasonable efforts to enforce or secure the performance of each obligation to be performed by and undertaking of the landlord respective tenants under each Lease; not borrow againstsuch leases and shall appear in and defend, pledge at its own cost and expense, any action or further assign proceeding arising out of or in any rents or other payments due thereunder; not manner connected with the Mortgagor’s interest in any leases of the Mortgaged Property. The Mortgagor shall permit the prepayment no surrender nor assignment of any rents tenant’s interest under said leases unless the right to assign or other payments due surrender is expressly reserved under the lease, nor receive any installment of rent for more than one (1) month in advance; and not permit any Tenant advance of its due date unless otherwise required pursuant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if of the applicable lease, nor execute any mortgage or create or permit a lien which may be or become superior to any such assignment does not work to relieve the Tenant leases, nor permit a subordination of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect lease to such defaultmortgage or lien. The Mortgagor shall not materially modify or amend the terms of any such leases, but may not discountnor borrow against or pledge the rentals from such leases, compromise, forgive nor exercise or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender any default of the Lease tenant thereunder without the prior written consent of the Mortgagee.
. The Mortgagor agrees to obtain the Mortgagee’s prior written approval before entering into any lease with a term of five (d5) If years or more. Should the Mortgagor fails fail to perform perform, comply with or discharge any material obligations of the Mortgagor under any Lease lease or if should the Mortgagee becomes become aware of or is be notified by any Tenant tenant under any lease of a material failure on the part of the Mortgagor to so perform, comply with or discharge its obligations under said lease, the Mortgagee may, but shall not be obligated to, and without further demand upon or notice to the Mortgagor, and without waiving or releasing the Mortgagor from any Obligationobligation in this Mortgage contained, remedy such failure, and the Mortgagor agrees to repay upon demand all sums incurred by the Mortgagee in remedying any such failurefailure together with interest at the Default Rate. All such sums, together with interest thereon as aforesaid, shall become so much additional Secured Indebtedness, but no such advance shall be deemed to relieve the Mortgagor from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess any Event of the one month LIBOR Rate (as set forth and defined in the Bond Lease)Default hereunder.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Mortgage (Highwater Ethanol LLC)
Leases. (a) Notwithstanding anything Each residential Lease executed after the date hereof or any amendment, extension or renewal of any residential Lease entered into by Mortgagor (any such new Lease or amendment, extension or renewal of any residential Lease being referred to as a “Future Lease”) shall (a) be on the standard form of residential lease (“Standard Form”) which has been approved in writing by Mortgagee, which approval shall not be unreasonably withheld, conditioned or delayed, and which may hereafter be modified from time to time, upon notice to Mortgagee but without Mortgagee’s approval, to comply with legal requirements and otherwise in immaterial respects, (b) provide for rental rates comparable to then existing local market rates and terms and conditions that constitute good and prudent business practice, comply with rent stabilization/control laws (if applicable) and are consistent with prevailing market terms and conditions, (c) be for a term of not more than three (3) years, and (d) be arms-length transactions. Mortgagee’s consent shall not be required for any Future Lease provided that such Future Lease complies with the terms of this paragraph. Failure of Mortgagee to approve or disapprove any such any change to the contrary hereinStandard Lease or any Future Lease requiring such approval within fifteen (15) business days after receipt of such written request and all the documents and information required to be furnished to Mortgagee with such request shall be deemed approved, provided that the written request for approval specifically mentioned the same.
(b) Mortgagor covenants and agrees that it shall not enter into any Lease affecting the lesser of (x) ten percent (10%) of the gross leaseable area of the Improvements and (y) 10,000 square feet or more of the Property or having a term of ten (10) years or more without the prior written approval of Mortgagee, which approval shall not be unreasonably withheld, conditioned or delayed. The request for approval of each such proposed new Lease shall be made to Mortgagee in writing and Mortgagor shall furnish to Mortgagee (and any loan servicer specified in writing from time to time by Mortgagee): (i) such biographical and financial information about the proposed Tenant as Mortgagee may reasonably require in conjunction with its review, (ii) a copy of the proposed form of Lease and (iii) a summary of the material terms of such proposed Lease (including, without limitation, rental terms and the term of the proposed lease and any options). It is acknowledged that Mortgagee intends to include among its criteria for approval of any such proposed Lease the following: (i) such Lease shall be with a bona-fide arm’s-length Tenant; (ii) the terms of such Lease shall comply with the requirements set forth in paragraphs (b) and (c) below; and (iii) such Lease shall provide that the Tenant pays for its expenses. Failure of Mortgagee to approve or disapprove any such proposed Lease within fifteen (15) business days after receipt of such written request and all the documents and information required to be furnished to Mortgagee with such request shall be deemed Mortgagee’s prior approval of such proposed Lease, provided that the written consentrequest for approval specifically mentioned the same.
(c) Mortgagor shall not execute any Lease for all or a substantial portion of the Property, except for an actual occupancy by the Tenant, lessee or licensee thereunder, and shall at all times promptly and faithfully perform, or cause to be performed, all of the covenants, conditions and agreements contained in all Leases with respect to the Property, now or hereafter existing, on the part of the landlord, lessor or licensor thereunder to be kept and performed. Mortgagor shall furnish to Mortgagee, upon executionwithin ten (10) days after receipt of a written request by Mortgagee to do so, but in any event by January 1 of each year, a complete current Rent Roll, certified by Mortgagor as being true and fully executed correct, containing the names of all Tenants with respect to the Property, the terms of their respective Leases, the spaces occupied and the rentals or fees payable thereunder and the amount of each Tenant’s security deposit. Upon receipt of a written request of Mortgagee, Mortgagor shall deliver to Mortgagee a copy of each such Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease not knowingly do or suffer to be prior done any act, or subordinate omit to this Mortgagetake any action, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed that might result in a default by the landlord landlord, lessor or licensor under each Lease; any such Lease or allow the Tenant thereunder to withhold payment of rent or cancel or terminate same and shall not borrow against, pledge or further assign any rents such Lease or any such Rents and Profits. Mortgagor, at no cost or expense to Mortgagee, shall use commercially reasonable efforts to enforce, short of termination, the performance and observance of each and every condition and covenant of each of the parties under such Leases, and unless required by applicable legal requirements or the terms of the Lease, Mortgagor shall not anticipate, discount, release, waive, compromise or otherwise discharge any rent payable under any of the Leases. Mortgagor shall not, without the prior written consent of Mortgagee, which approval shall not be unreasonably withheld, conditioned or delayed, materially modify any of the Leases, terminate or accept the surrender of any Leases, waive or release any other payments due thereunder; party from the performance or observance of any obligation or condition under such Leases except, with respect only to Leases affecting less than the lesser of (x) ten percent (10%) of the gross leaseable area of the Improvements and (y) 10,000 square feet and having a term of less than ten (10) years, in the normal course of business in a manner which is consistent with sound and customary leasing and management practices for similar properties in the community in which the Property is located. Mortgagor shall not permit the prepayment of any rents under any of the Leases for more than one (1) month prior to the due date thereof, except for security deposits.
(d) Each Lease executed after the date hereof affecting any of the Premises or other payments due the Improvements must provide, in a manner reasonably approved by Mortgagee, that the Lease is subordinate to the lien of this Mortgage and that Tenant will recognize as its landlord, lessor or licensor, as applicable, and attorn to any person succeeding to the interest of Mortgagor upon any foreclosure of this Mortgage or deed in lieu of foreclosure. Each such Lease shall also provide that, upon request of said successor-in-interest, the Tenant shall execute and deliver an instrument or instruments confirming its attornment as provided for in this Section; provided, however, that neither Mortgagee nor any successor-in-interest shall be bound by any payment of rent for more than one (1) month in advance; and not permit , or any Tenant to assign its amendment or modification of said Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease made without the prior express written consent of MortgageeMortgagee or said successor-in-interest.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (a) Notwithstanding anything to the contrary herein, Mortgagor shall not enter into any Lease Major Leases without Mortgagee’s prior written consent in each instance. Furthermore, Mortgagor shall not have the right to enter into Leases other than Major Leases without Mortgagee’s prior written consent, unless such Lease complies with the following conditions: (i) the tenant thereunder is an independent third party unaffiliated with Mortgagor (except that Mortgagor may enter into Corporate Leases with Leading Apartments which are otherwise in compliance with the terms hereof); (ii) the Rents due and shall furnish payable thereunder are equal to or greater than the fair market rental of the space demised; and (iii) such Lease is on a standard lease form approved by Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s optionno material changes.
(b) Mortgagor shall, at its cost and expenseshall pay, perform each obligation to be performed by the and discharge, as and when payment, performance and discharge are due, all obligations of Mortgagor as landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment all Leases. Mortgagor shall give Mortgagee prompt notice of any rents or other payments due for more than one (1) month in advance; and not permit default by Mortgagor claimed by any Tenant to assign its Lease or sublet the premises covered by its tenant under any Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant together with a copy of any liability for performance notice of its obligations thereunderdefault given by any such tenant to Mortgagor.
(c) If any Tenant Mortgagor shall default enforce all covenants and agreements on the tenant’s part to be performed or complied with under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender each of the Lease Leases and on the guarantor’s part to be performed or complied with under any guaranty given in connection with any Lease. Mortgagor shall not, without the prior written consent of MortgageeMortgagee in each instance, cancel, terminate or accept the surrender of any Major Lease or waive or release any obligation or liability of any tenant under any Major Lease or of any guarantor under any guaranty thereof.
(d) If Mortgagor fails to perform any obligations shall not, without Mortgagee’s prior written consent in each instance, accept prepayment of Mortgagor rent under any Lease for more than thirty (30) days in advance or if Mortgagee becomes aware of permit any tenant to offset or is notified credit sums due and payable by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but such tenant against Rents. Mortgagor shall not create any lien or security interest which would be obligated tosuperior to the Leases or would, without waiving or releasing Mortgagor from upon foreclosure, extinguish any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)Leases.
(e) For purposes Mortgagor shall, at Mortgagor’s expense, appear in and defend any action or proceeding arising from or connected with any of this Mortgagethe Leases or any obligation or liability of Mortgagor as landlord thereunder. Mortgagor shall diligently pursue all remedies, including, without limitation, claims for damages available at law or in equity against any tenant under a Lease or guarantor thereof and shall not settle or compromise any such claims without Mortgagee’s prior written consent in each instance.
(f) Mortgagor shall, at any time and from time to time upon request by Mortgagee, execute, acknowledge and deliver to Mortgagee an assignment of the Leases, in form and substance satisfactory to Mortgagee, transferring and assigning Mortgagor’s interest in the Leases to Mortgagee. Mortgagor shall furnish to Mortgagee copies of all Leases requested by Mortgagee within ten (10) days following terms Mortgagee’s demand therefor.
(g) Intentionally omitted.
(h) Mortgagor shall have not, without Mortgagee’s prior written consent, terminate any Major Lease.
(i) No Lease shall afford any tenant the following meanings:right or option to purchase any portion of the Premises, but if any Lease approved by Mortgagee contains a purchase right or purchase option in favor of the tenant, then any sums paid in connection with the exercise of such right or option shall be paid to Mortgagee, with prepayment charge, and applied in reduction of the sums hereby secured in such order as Mortgagee shall determine.
(j) No more than 35 of the apartments in the Premises shall, at any one time, be leased pursuant to Corporate Leases.
Appears in 1 contract
Sources: Mortgage, Security Agreement and Fixture Filing (Bluerock Enhanced Multifamily Trust, Inc.)
Leases. (a) Notwithstanding anything Maryland Guarantor shall furnish Lender with executed copies of all Leases, together with a detailed breakdown of income and cost associated therewith. All new Leases and renewals or amendments of Leases must (i) be entered into on an arms-length basis with Tenants that are not affiliates of Maryland Guarantor and whose identity and creditworthiness is appropriate for tenancy in property of comparable quality, (ii) provide for rental rates and other economic terms that, taken as a whole, are at least equivalent to then-existing market rates, based on the applicable market, and otherwise contain terms and conditions that are commercially reasonable, (iii) have an initial term of not more than 10 years, (iv) not have or reasonably be expected to result in a Material Adverse Effect, (v) be expressly subject and subordinate to the contrary hereinMortgage and contain provisions for the agreement by the Tenant thereunder to attorn to Lender and any purchaser at a foreclosure sale, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease such attornment to be prior or subordinate self-executing and effective upon acquisition of title to the Property by any purchaser at a foreclosure sale and (vi) require the Tenant thereunder to execute and deliver to Maryland Guarantor an estoppel certificate addressing the issues set forth in Section 9.16(b) of this MortgageAgreement (in each case, at Mortgagee’s optionunless Lender consents to such Lease in its sole discretion).
(b) Mortgagor shallAll new Leases that are Major Leases, at its cost and expenseall terminations, perform each obligation to be performed by the landlord renewals and amendments of Major Leases, and any surrender of rights under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Major Lease, unless required shall be subject to do so by the terms thereof prior written consent of Lender. If Lender shall fail to respond to Maryland Guarantor’s request for such consent within five Business Days of Lender’s receipt thereof, Maryland Guarantor may deliver to Lender a second request for consent stating in bold and then only if capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN TEN BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL.” In the event Lender fails to approve or disapprove such assignment does not work to relieve the Tenant request within ten Business Days of any liability for performance Lender’s receipt of its obligations thereundersuch second request, such request shall be deemed approved.
(c) If any Tenant shall default under its Lease, Mortgagor Maryland Guarantor shall, and shall cause Operating Lessee to, (i) observe and punctually perform all the material obligations imposed upon the lessor under the Leases; (ii) enforce all of the material terms, covenants and conditions contained in the ordinary course Leases on the part of businessthe lessee thereunder to be observed or performed, exercise sound business judgment with respect to such defaultshort of termination thereof, but except that the lessor may terminate any Lease following a material default thereunder by the respective Tenant; (iii) not discount, compromise, forgive collect any of the rents thereunder more than one month in advance; (iv) not execute any assignment of lessor’s interest in the Leases or waive claims or discharge associated rents other than the Tenant from its obligations assignment of rents and leases under the Lease Mortgage; (v) not cancel or terminate or accept a surrender any guarantee of any of the Lease Major Leases without the prior written consent of MortgageeLender; and (vi) not permit any subletting of any space covered by a Lease or an assignment of the Tenant’s rights under a Lease, except in strict accordance with the terms of such Lease. Maryland Guarantor shall, or shall cause Operating Lessee to, deliver to each new Tenant a Tenant Notice upon execution of such Tenant’s Lease, and promptly thereafter deliver to Lender a copy thereof and evidence of such Tenant’s receipt thereof.
(d) If Mortgagor fails to perform Security deposits of Tenants under all Leases, whether held in cash or any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so performother form, Mortgagee may, but shall not be obligated commingled with any other funds of Maryland Guarantor or Operating Lessee and, if cash, shall be deposited by Maryland Guarantor or Operating Lessee in an account at such commercial or savings bank as may be reasonably satisfactory to Lender, which account shall be pledged to Lender. Maryland Guarantor shall, or shall cause Operating Lessee to, without waiving or releasing Mortgagor maintain books and records of sufficient detail to identify all security deposits of Tenants separate and apart from any Obligationother payments received from Tenants. Any bond or other instrument that Maryland Guarantor or Operating Lessee is permitted to hold in lieu of cash security deposits under any applicable Legal Requirements shall be maintained in full force and effect unless replaced by cash deposits as described above, remedy shall be issued by an institution reasonably satisfactory to Lender, shall (if not prohibited by any Legal Requirements) name Lender as payee or mortgagee thereunder (or at Lender’s option, be fully assignable to Lender) or may name Maryland Guarantor or Operating Lessee as payee thereunder so long as such failurebond or other instrument is pledged to Lender as security for the Indebtedness and shall, in all respects, comply with any applicable Legal Requirements and Mortgagor agrees otherwise be reasonably satisfactory to repay Lender. Maryland Guarantor shall, upon demand all sums incurred by Mortgagee Lender’s request, provide Lender with evidence reasonably satisfactory to Lender of Maryland Guarantor’s and Operating Lessee’s compliance with the foregoing. During the continuance of any Trigger Period or Event of Default, Maryland Guarantor shall, upon Lender’s request, cause to be deposited with Lender in remedying any such failure, together with interest thereon from the date incurred at an annual rate Eligible Account pledged to Lender an amount equal to nine and one half percent (9.5%) in excess the aggregate security deposits of the one month LIBOR Rate Tenants (as set forth and defined any interest theretofore earned on such security deposits and actually received by Maryland Guarantor or Operating Lessee) that Maryland Guarantor and Operating Lessee had not returned to the applicable Tenants or applied in accordance with the Bond terms of the applicable Lease).
(e) For purposes Maryland Guarantor shall cause to be promptly delivered to Lender a copy of this Mortgageeach written notice from a Tenant under any Major Lease claiming that Maryland Guarantor or Operating Lessee is in default in the performance or observance of any of the material terms, covenants or conditions thereof. Maryland Guarantor shall cause each Major Lease executed after the following terms Closing Date to which Maryland Guarantor or Operating Lessee is a party to provide that any Tenant delivering any such notice shall have the following meanings:send a copy of such notice directly to Lender.
Appears in 1 contract
Leases. A. Without Lender’s prior written consent, which may be granted or withheld in Lender’s sole discretion, Borrowers shall not enter into or modify, amend, supplement, terminate or cancel any Lease of all or any part of any Property. Any submission by Borrowers for Lender’s consent to a Lease or modification, amendment, supplement, termination or cancellation thereof shall be accompanied by a copy of such Lease or modification, amendment, supplement, termination or cancellation, a then-current Rent Roll for the applicable Property, year-to-date and prior year operating statements for the applicable Property and a cover letter requesting Lender’s consent which contains a signature line on which Lender may evidence Lender’s consent to such Lease or modification, amendment, supplement, termination or cancellation (a) collectively, the “Lease Approval Deliveries”). Each Lease, and each modification, amendment, supplement, termination or cancellation of any Lease, shall be in writing. Notwithstanding anything to the contrary hereinin the Loan Documents, Mortgagor shall Lender’s written consent will not enter be required prior to entering into any new Safe Harbor Lease without Mortgagee’s prior written consentor any modification, amendment, or supplement thereof after the Closing Date (so long as such Lease remains a Safe Harbor Lease after giving effect to any such modification, amendment or supplement), provided that no Event of Default exists and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with Borrowers deliver a copy of each such Safe Harbor Lease to Lender within ten (10) days after execution thereof together with Borrowers’ written certification that such copy is a true, correct and complete copy of such Safe Harbor Lease and that all of the conditions set forth in this sentence and in the definition of “Safe Harbor Lease” have been satisfied.
B. Lender agrees that for any proposed Lease requiring that does not qualify as a Safe Harbor Lease, for which Borrower is required to obtain Lender’s consent thereto, Lender will attempt to respond within ten (10) Business Days, and Lender’s consent shall not be unreasonably withheld based upon market conditions, so long as no Event of Default then exists. Borrower shall be permitted to submit a lease summary term sheet, for purposes of obtaining Lender’s approval, which sets out all of the economic terms of the proposed Lease, as well as any deviations from the Lease Form. Lender’s consent will be contingent on tenant signing the Lease Form. Lender will not be obligated to enter into any subordination, non-disturbance and attornment agreement (or similar agreement) for any tenant for which Borrower is requesting Lender lease approval until such time as an executed Lease that complies with the provisions of this Agreement is delivered to Lender. If Lender has failed to respond to the written request for consent of Mortgagee and a proposed Lease after five (5) Business Days after its receipt thereof, together with any additional information requested by Mortgagee regarding that Lender may reasonably require to evaluate such proposed Lease, and Borrower has provided a subsequent five (5) Business Days written notice to Lender requesting consent, each notice marked with a legend in bold capital letters stating: LENDER SHALL BE DEEMED TO HAVE CONSENTED TO THE MATTER CONTAINED HEREIN IF IT FAILS TO RESPOND TO THIS REQUEST FOR CONSENT WITHIN 10/5 (as applicable) BUSINESS DAYS AFTER THE DATE HEREOF, then Lender shall be deemed to have consented to the proposed Tenant thereunder. Mortgagee same.
C. With respect to each Lease, Borrowers: shall neither do, nor neglect to do, anything that may declare each cause or permit the termination of such Lease, or cause or permit the withholding or abatement of any rent payable under any such Lease;
(i) shall observe and perform all of the obligations imposed upon Borrowers under such Lease and shall not do or permit to be prior or subordinate done anything to this Mortgage, at Mortgagee’s option.impair the value of the Lease as security for the Secured Obligations;
(bii) Mortgagor shallshall promptly send copies to Lender of all written notices of default that Borrowers shall send or receive under any Lease;
(iii) shall enforce all of the terms, at its cost covenants and expense, perform each obligation conditions contained in the Lease upon the part of the lessee or any other party that is not Borrowers thereunder to be observed or performed by and shall not effect a termination or diminution of the landlord obligations of tenants under each Lease; ;
(iv) shall not borrow against, pledge or further assign collect any rents or other payments due thereunder; not permit the prepayment of rent under any rents or other payments due for Lease more than one (1) month in advance; and advance (other than security deposits);
(v) shall not permit execute any Tenant other assignment of Borrowers’ interest in the Leases or Revenue, except pursuant to assign its Lease the Security Documents;
(vi) shall not alter, modify or sublet the premises covered by its Lease, unless required to do so by change the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance guaranty of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive Leases or waive claims or discharge the Tenant from its obligations under the Lease cancel or terminate or accept a surrender of the Lease such guaranty without the prior written consent of MortgageeLender; and
(vii) shall not consent to any assignment of or subletting under the Lease not in accordance with their terms, without the prior written consent of Lender.
D. Borrowers shall deposit security deposits of tenants under Leases that are turned over to or for the benefit of Borrowers or otherwise collected by or on behalf of Borrowers, into an Eligible Account and in compliance with applicable Legal Requirements and shall not commingle such funds with any other funds of Borrowers. Any bond or other instrument that Borrowers are permitted to hold in lieu of cash security deposits under any applicable Legal Requirements shall be maintained in full force and effect unless replaced by cash deposits as hereinabove described, shall, if permitted pursuant to all applicable Legal Requirements, name Lender as payee or mortgagee thereunder (or at Lender’s option, be fully assignable to Lender) and shall, in all respects, comply with any applicable Legal Requirements and otherwise be reasonably satisfactory to Lender. Borrowers shall, upon request, provide Lender with evidence reasonably satisfactory to Lender of Borrowers’ compliance with the foregoing. Upon the occurrence and during the continuance of any Event of Default, Borrowers shall, upon Lender’s written request, if permitted by any applicable Legal Requirements, turn over to Lender the security deposits (and, if required to be paid to any tenant pursuant to its Lease or applicable Legal Requirements, any interest theretofore earned thereon and not previously disbursed to such tenant) then held with respect to all or any portion of any Property, to be held by Lender subject to the terms of the Leases.
(di) If Mortgagor fails Without limiting the generality of the foregoing, (a) Borrowers shall notify Lender in writing of any cancellation penalties, termination fees or other consideration payable to perform Borrowers in connection with any obligations cancellation, termination or surrender of Mortgagor under any Lease (any such penalties or if Mortgagee becomes aware fees are referred to herein as “Termination Fees”), which written notice shall be delivered to Lender not later than three (3) Business Days following receipt by Borrowers of written notice from the applicable tenant under such Lease of the intention of such tenant to cancel, terminate or is notified surrender such Lease, but in any event prior to the payment by the applicable tenant under such Lease of any Tenant of a failure on the part of Mortgagor such Termination Fees to so perform, Mortgagee such Borrower and (b) Lender may, but shall not be obligated required to, without waiving (i) require that such Borrowers deposits such Termination Fees into a reserve held by Lender or releasing Mortgagor from any ObligationServicer pursuant to a tenant improvement and leasing commissions reserve agreement, remedy such failurewhich agreement shall be in form and substance reasonably satisfactory to Lender, and Mortgagor agrees (ii) impose such restrictions and conditions on the timing and amount of disbursements of the Termination Fees from such reserve account as Lender may reasonably require, including, without limitation (x) requiring that (1) the space left vacant as a result of such cancellation, termination or surrender be relet to repay upon demand all sums incurred a tenant and under a Lease consented to by Mortgagee Lender unless such consent is either not required or deemed given in remedying accordance with this Section 5.1.18 (any such failureLease an “Approved Lease”), together (2) the tenant under such Approved Lease is in occupancy of the portion of the Property demised pursuant to such Approved Lease and is paying rent in accordance with interest thereon such Approved Lease, (3) Borrowers provide to Lender a tenant estoppel certificate from the date incurred at an annual rate equal tenant under such Approved Lease in a form and in substance reasonably acceptable to nine Lender, and one half percent (9.5%4) Borrowers provide to Lender written evidence reasonably acceptable to Lender that all improvements to the applicable Property required pursuant to such Approved Lease have been completed in excess accordance with such Approved Lease, and (y) limiting the amount of any such disbursement to the one month LIBOR Rate lesser of (as set forth 1) the actual cost of re-tenanting such space and defined in (2) the Bond amount calculated by dividing the applicable Termination Fees by the total square feet of space vacated, then multiplying that result by the number of square feet of newly leased space under such Approved Lease).
(eii) For purposes Subject to Section 5.1.18(E)(iii) below, (a) in the event that following the date that any such Termination Fee is paid, as of the date of determination, the Debt Service Coverage Ratio is less than 1.0 to 1.0, then Lender may apply an amount equal to the excess of (x) any Termination Fees over (y) the amount of such Termination Fees disbursed to Borrowers pursuant to Section 5.1.18(E)(i) above (any such excess amount the “Excess Termination Fees”) to any regularly scheduled payment due and payable by Borrower under the Note, this Agreement, the Mortgages or the other Loan Documents (including, without limitation, any monthly payment of principal and/or interest and any regularly scheduled reserve deposits) in such order and in such manner as determined by Lender; (b) following the date that any such Termination Fee is paid, as of the date of determination, (x) the Debt Service Coverage Ratio equals or exceeds 1.0 to 1.0 and (y) at least eighty-five percent (85%) of the rentable square feet of space available at all of the Properties is occupied by Leases approved (or deemed approved) by Lender pursuant to this Agreement or the Safe-Harbor Leases, then Lender shall disburse any Excess Termination Fees to Borrowers.
(iii) If any Event of Default exists and is continuing, Lender may apply any Termination Fees to the Secured Obligations in such order and in such manner as determined by Lender in Lender’s sole discretion.
F. Borrowers shall provide Lender with a Rent Roll on an annual basis, certified by Borrowers to Lender as true, correct and complete. Without limiting the provisions of this MortgageSection 5.1.18, the following terms Rent Roll shall have the following meanings:include all Leases whether or not evidenced by written instruments.
Appears in 1 contract
Sources: Loan Agreement (GTJ REIT, Inc.)
Leases. (a) Notwithstanding anything to the contrary herein, The Mortgagor shall not enter into any Lease without Mortgagee’s prior written consentnot, and shall furnish to Mortgageenot allow any Person on behalf of the Mortgagor to, upon executionenter into, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring amend, modify, waive any material term of, including any waiver that would reduce the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment amount of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its LeaseRent, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the any Major Lease without the prior written consent of the Mortgagee. The Mortgagor shall not, and shall not allow any Person on behalf of the Mortgagor to, amend , modify or waive any term of any other Lease if it causes such Lease to be a Major Lease without the prior consent of the Mortgagee. The Mortgagor shall provide the Mortgagee copies of each Lease (and any related brokerage agreement of the Mortgagor), amendment and modification promptly after entering into it.
(b) The Mortgagor shall faithfully keep and perform in all material respects its obligations under all Major Leases and Lease Guaranties thereof and, if the failure to do so causes or reasonably could be expected to cause a Material Adverse Effect, all other Leases and Lease Guaranties thereof. The Mortgagor shall not permit to accrue to any Tenant any right to prepaid rent pursuant to the terms of any Lease other than the usual prepayment of rent as would result from the acceptance on the first day of each month of the rent for the ensuing month, according to the terms of any Leases.
(c) The Mortgagor shall furnish to the Mortgagee, within ten (10) days after a request by the Mortgagee to do so, a certified statement of the Mortgagor containing the names of all Tenants, the terms of their respective Leases, the space occupied, the Rents payable and the securities deposited thereunder, and the name of any guarantor thereof, together with true copies of each Lease and any guaranty thereof or amendments and supplements thereto not previously furnished to the Mortgagee and any other information with respect to the Mortgagor's leasing activities and policies as the Mortgagor shall reasonably request.
(d) If To the extent required by applicable law, all security deposited by the Tenants shall be treated as trust funds not to be commingled with any other funds of the Mortgagor fails and the Mortgagor shall, upon demand, furnish to perform any obligations the Mortgagee satisfactory evidence of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failurecompliance with this provision, together with interest thereon from a statement of all securities deposited by the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)Tenants.
(e) For purposes The Mortgagor shall pay all costs and expenses of this Mortgagethe Mortgagee, including reasonable attorneys' fees, in any action or proceeding in which the Mortgagee may be joined arising under, occurring out of, or in any manner connected with, the following Leases.
(f) All Leases entered into after the date hereof shall provide that they are subject and subordinate to this Mortgage and all other mortgages, and to all amendments, supplements and modifications thereof and advances and re-advanced made thereunder, in all respects and shall obligate the Tenants thereunder to attorn to the Mortgagee, such other the Mortgagee, or any purchaser therefrom upon its written demand in the event such Person succeeds to the interest of the Mortgagor under such Leases. If requested by the Mortgagor in writing, the Mortgagee shall provide a non-disturbance agreement on terms shall have reasonably acceptable to the following meanings:Mortgagor to the Tenant under any Major Lease.
Appears in 1 contract
Leases. (a) Notwithstanding anything All Leases and all renewals of Leases executed after the date hereof shall (i) provide for rental rates comparable to existing local market rates for similar properties, (ii) be on commercially reasonable terms, (iii) provide that such Lease is subordinate to the contrary hereinMortgage encumbering the related Individual Property and that the lessee will attorn to Lender and any purchaser at a foreclosure sale and (iv) not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents. All Major Leases and all renewals, Mortgagor amendments and modifications thereof executed after the date hereof shall be subject to Lender’s prior approval, which approval shall not enter into any be unreasonably withheld or delayed. Lender shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement in the form annexed as Schedule IV to Tenants under future Major Lease without Mortgagee’s prior written consentapproved by Lender promptly upon request with such commercially reasonable changes as may be requested by Tenants, from time to time, and shall furnish which are reasonably acceptable to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s optionLender.
(b) Mortgagor shallBorrower (i) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) shall enforce the terms, at its cost covenants and expense, perform each obligation conditions contained in the Leases upon the part of the lessee thereunder to be observed or performed by in a commercially reasonable manner; provided, however, Borrower shall not terminate or accept a surrender of a Major Lease without Lender’s prior approval, not to be unreasonably withheld or delayed in the landlord event of a material default under each a Major Lease; (iii) shall not borrow against, pledge or further assign collect any rents or other payments due thereunder; not permit of the prepayment of any rents or other payments due for Rents more than one (1) month in advanceadvance (other than security deposits); (iv) shall not execute any assignment of lessor’s interest in the Leases or the Rents (except as contemplated by the Loan Documents); (v) shall not alter, modify or change any Major Lease so as to change the amount of or payment date for rent, change the expiration date, grant any option for additional space or term, materially reduce the obligations of the lessee or increase the obligations of lessor without Lender’s prior written approval, such approval not to be unreasonably withheld or delayed if no Trigger Event has occurred and is continuing; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease(vi) shall hold all security deposits under all Leases in accordance with Legal Requirements. Upon request, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant Borrower shall furnish Lender with executed copies of any liability for performance of its obligations thereunderall Leases.
(c) Notwithstanding anything to the contrary contained in this Section 4.1.9:
(i) whenever Lender’s approval or consent is required pursuant to the provisions of this Section 4.1.9, Borrower shall have the right to submit a term sheet of such transaction to Lender for Lender’s approval, such approval not to be unreasonably withheld or delayed. Any such term sheet submitted to Lender shall set forth all material terms of the proposed transaction including, without limitation, identity of tenant, square footage, term, rent, rent credits, abatements, work allowances and tenant improvements to be constructed by Borrower. Lender shall use good faith efforts to respond within ten (10) Business Days after Lender’s receipt of the Borrower’s written request for approval or consent of such term sheet. If Lender fails to respond to such request within ten (10) Business Days, and the Borrower sends a second request containing a legend in bold letters stating that Lender’s failure to respond within five (5) Business Days shall be deemed consent or approval, Lender shall be deemed to have approved or consented to such term sheet if Lender fails to respond to such second written request before the expiration of such five (5) Business Day period;
(ii) whenever Lender’s approval or consent is required pursuant to the provisions of this Section 4.1.9 for any Tenant matter that Lender has not previously approved a term sheet pursuant to Section 4.1.9(c)(i) above, Lender shall default under its use good faith efforts to respond within ten (10) Business Days after Lender’s receipt of Borrower’s written request for such approval or consent. If Lender fails to respond to such request within ten (10) Business Days, and Borrower sends a second request containing a legend in bold letters stating that Lender’s failure to respond within ten (10) Business Days shall be deemed consent or approval, Lender shall be deemed to have approved or consented to the matter for which Lender’s consent or approval was sought if Lender fails to respond to such second written request before the expiration of such ten (10) Business Day period;
(iii) whenever Lender’s approval or consent is required pursuant to the provisions of this Section 4.1.9 for any matter that Lender has previously approved a term sheet pursuant to Section 4.1.9(c)(i) above, Lender shall use good faith efforts to respond within five (5) Business Days after Lender’s receipt of Borrower’s written request for such approval or consent. If Lender fails to respond to such request within five (5) Business Days, and Borrower sends a second request containing a legend in bold letters stating that Lender’s failure to respond within five (5) Business Days shall be deemed consent or approval, Lender shall be deemed to have approved or consented to the matter for which Lender’s consent or approval was sought if Lender fails to respond to such second written request before the expiration of such five (5) Business Day period, provided that there have been no material deviations from the term sheet and that the aggregate economics of the transaction are no less favorable to Borrower than as set forth in the term sheet;
(iv) in the event that Lender shall have approved (or be deemed to have approved) a term sheet submitted by Borrower with respect to a certain Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment Lender shall not withhold its approval or consent with respect to such defaultLease on the basis of any provisions of such Lease dealing with the items contained in the approved term sheet; and
(v) Borrower shall have the right, but may not discountwithout the consent or approval of Lender in any instance, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or to terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or that is notified by any Tenant of not a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Major Lease).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Loan Agreement (Wells Real Estate Investment Trust Inc)
Leases. Other than the Leases and as expressly set forth in the Condition of Title, no Seller has entered into any leases, tenancy or occupancy agreements with respect to its Property. No Seller has received any written notice from a Lessee of its Property of any default or breach on the part of such Seller as the landlord under one of the Leases of its Property nor does any Seller have actual knowledge of any payment default to such Seller by any of the Lessees of its Property. Other than with respect to the remaining leasing commission that will be due and payable in connection with the initial term of the HFT Lease (awhich commission shall be the obligation of RMV and shall be paid through Escrow upon the Close of Escrow), each Seller has paid current all leasing and brokerage fees and commissions that have become due and payable by such Seller under any brokerage agreements Sellers have provided Buyer with complete copies of the leasing commission and brokerage agreements described on Exhibit “O”, which agreements represent the only leasing commission and brokerage agreements for future leasing and brokerage fees and commissions payable in connection with the renewal of the existing Leases (or the exercise of any purchase option) that Sellers have entered into with respect to the Properties (collectively, the “Leasing Commission Representation”). Buyer’s obligation with respect to the Leasing Commission Representation shall survive the Close of Escrow for a period of eighteen (18) months. Except as expressly stated in the rent rolls attached as Exhibit “F”, all tenant improvement obligations, concessions and other tenant inducements required for the term of a Lease to commence, have been fully paid and satisfied by such Seller and no such obligations, concessions or inducements become payable in the future for the commencement date under a Lease to occur. Except as set forth in said rent rolls, as of the date of this Agreement, Sellers have not received from any Lessee any written notice to cancel, renew or extend any Lease. In addition, and as more particularly described in Exhibit F hereof, certain of the Sellers have entered into landlord agreements with certain of the Lessees’ lenders (the “Landlord Agreements”). Buyer acknowledges that the Landlord Agreements shall be assigned to Buyer as part of the Assignment of Leases and that Sellers have met their obligation to Buyer to disclose to Buyer the existence of such Landlord Agreements, to the extent contemplated in each of such agreements. Notwithstanding anything to the contrary hereinset forth above, Mortgagor shall not enter into any Lease without Mortgageeif an Estoppel from a Lessee is obtained that contains a certification that expressly covers and validates the representations made by Seller in this Section 13(f) with respect to the Leases, then Seller’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment representation with respect to such default, but may not discount, compromise, forgive express matter or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender matters shall be deemed of the Lease without the prior written consent of Mortgageeno further force and effect.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Purchase and Sale Agreement (Industrial Income Trust Inc.)
Leases. The Property is not subject to any Material Leases other than the Affiliate Leases and the Leases described in the certified rent roll delivered in connection with the origination of the Loan. To the Best of Borrower's Knowledge (awhich shall include Borrower's consultation with Manager), such certified rent roll is true, complete and correct in all material respects as of the date set forth therein. Except as described in the Ground Leases, no Person has any possessory interest in the Property or right to occupy the same (other than typical short-term occupancy rights of hotel guests which are not the subject of a written agreement) Notwithstanding anything except under and pursuant to the contrary hereinprovisions of the Leases. To the Best of Borrower's Knowledge, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consentthe current Leases are in full force and effect and there are no material defaults thereunder by either party (other than as expressly disclosed on the certified rent roll delivered to Lender or the Tenant estoppel certificates delivered to Lender in connection with the closing of the Loan) and there are no conditions that, and shall furnish to Mortgageewith the passage of time or the giving of notice, upon executionor both, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant would constitute material defaults thereunder. Mortgagee may declare each Lease to be prior or subordinate to this MortgageTo the Best of Borrower's Knowledge, at Mortgagee’s option.
(b) Mortgagor shall, at its cost all construction and expense, perform each obligation other obligations of a material nature to be performed by the landlord Borrower under each Lease; not borrow againstthe Leases have been satisfied and) any required payments by Borrower to the Tenants under the Leases for tenant improvements have been made to the extent required to be satisfied. To the Best of Borrower's Knowledge, pledge or further assign no Tenant under any rents or other payments due thereunder; not permit Lease is entitled to any offsets, abatements, deductions against the prepayment Rent payable under any Lease from and after the date hereof. To the Best of any rents or other payments due for Borrower's Knowledge, the Rent has been paid current under the Leases. To the Best of Borrower's Knowledge, no Rent has been paid more than one (1) month in advance; and not permit advance of its due date, except as disclosed in the Tenant estoppel certificates delivered to Lender in connection with the closing of the Loan. There has been no prior sale, transfer or assignment, hypothecation or pledge by Borrower of any Tenant to assign its Lease or sublet of the premises covered Rents received therein, which will be outstanding following the funding of the Loan, other than those being assigned to Lender concurrently herewith. No Tenant or other Person under any Lease or other agreement has any right or option pursuant to such Lease or other agreement or otherwise to purchase all or any part of the Property (except with respect to the options in the PGA Agreements which are fully insured over by its the Title Policy). Lender hereby agrees that on the date Borrower delivers to Lender a "clean" tenant estoppel certificate in the form attached hereto as Exhibit G regarding any Lease for which Borrower has not delivered a tenant estoppel certificate to Lender on the date hereof (each such Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Leasea CERTIFYING LEASE), Mortgagor shall, Borrower's representations in the ordinary course of business, exercise sound business judgment this Section 4.1.27 with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Certifying Lease or terminate or accept a surrender of the Lease without the prior written consent of Mortgageeshall automatically expire.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Loan and Security Agreement (CNL Hotels & Resorts, Inc.)
Leases. (a) Notwithstanding anything Borrower shall: comply with and observe all landlord obligations under all Leases, including landlord’s obligations pertaining to the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, maintenance and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment disposition of any rents tenant security deposits or any other payments due for refundable fees including entrance fees or community fees; surrender possession of the Mortgaged Property, including all Leases and all security deposits and prepaid Rents, immediately upon appointment of a receiver or Lender’s entry upon and taking of possession and control of the Mortgaged Property, as applicable; require that all Residential Leases have initial terms of not more than twenty-four (24) months and not less than one (1) month (provided that Residential Leases with terms of less than six (6) months are customary for properties comparable to the Mortgaged Property in advancethe applicable market); and not permit promptly provide Lender a copy of any Tenant non-Residential Lease at the time such Lease is executed (subject to assign its Lender’s consent rights for Material Commercial Leases in Section 7.2(dddd) and subject to Lender’s consent rights for the Seniors Housing Facility Lease pursuant to Section 7.2(iiii)(10) and any Operating Lease SNDA), and, upon Lender’s written request, promptly provide Lender a copy of any Residential Lease then in effect. Commercial Leases. With respect to Material Commercial Leases, Borrower shall not: enter into any Material Commercial Lease except with the prior written consent of Lender; or sublet the premises covered by its Lease, unless required to do so by modify the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Leaseof, Mortgagor shallextend, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of any Material Commercial Lease (including any Material Commercial Lease in existence on the Lease Effective Date) without the prior written consent of Mortgagee.
Lender. With respect to any non-Material Commercial Lease, Borrower shall not: enter into any non-Material Commercial Lease that materially alters the use and type of operation of the premises subject to the Lease in effect as of the Effective Date or reduces the number or size of residential units at the Mortgaged Property; or modify the terms of any non-Material Commercial Lease (dincluding any non-Material Commercial Lease in existence on the Effective Date) If Mortgagor fails in any way that materially alters the use and type of operation of the premises subject to perform such non-Material Commercial Lease in effect as of the Effective Date, reduces the number or size of residential units at the Mortgaged Property, or results in such non-Material Commercial Lease being deemed a Material Commercial Lease. With respect to any obligations of Mortgagor under any Material Commercial Lease or non-Material Commercial Lease, Borrower shall cause the applicable tenant to provide within ten (10) days after a request by Borrower, a certificate of estoppel, or if Mortgagee becomes aware not provided by tenant within such ten (10) day period, Borrower shall provide such certificate of estoppel, certifying: that such Material Commercial Lease or non-Material Commercial Lease is notified by any Tenant of a failure on unmodified and in full force and effect (or if there have been modifications, that such Material Commercial Lease or non-Material Commercial Lease is in full force and effect as modified and stating the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from modifications); the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess term of the one month LIBOR Rate Lease including any extensions thereto; the dates to which the Rent and any other charges hereunder have been paid by tenant; the amount of any security deposit delivered to Borrower as landlord; whether or not Borrower is in default (or whether any event or condition exists which, with the passage of time, would constitute an event of default) under such Lease; the address to which notices to tenant should be sent; and any other information as set forth and defined in the Bond Lease)may be reasonably required by Lender.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (ai) Notwithstanding anything The Property is not subject to any Leases other than the Master Lease, and the demised premises under the Master Lease constitute the entirety of the Land and the Improvements. The initial term of the Master Lease does not expire prior to the contrary hereindate that is the later to occur of the date that is (A) fifteen (15) years following the Must-Take Space Commencement Date (as defined in the Master Lease and (B) fifteen (15) years following the Closing Date. Master Tenant is required to commence payment of base rental payments under the Master Lease, Mortgagor shall with respect to Building A, not enter into any later than the Closing Date, and, with respect to the Required Improvements, on the date (such date, the “Master Lease without Mortgagee’s prior written consent, Payment Outside Date”) that is the earlier to occur of (x) the date on which the Project is Substantially Complete and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring (y) the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s optionSubstantial Completion Due Date.
(bii) Mortgagor shallWith respect to each Lease (including, at without limitation, the Master Lease, (A) Borrower is the owner of landlord’s interest in such Lease, (B) other than with respect to Permitted Encumbrances, no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of such Lease, (C) such Lease is in full force and effect, the tenants thereunder have accepted possession of and are in occupancy of all of their respective demised premises (except, prior to the Substantial Completion Due Date, Building B), are open for business, and are paying (except, prior to the Master Lease Payment Outside Date, the Master Lease Payments in respect of Building B) full, unabated rent, and no tenant under such Lease has given Borrower any notice of its cost intent to terminate such Lease or vacate the leased premises (and expenseBorrower has no knowledge that any such tenant intends to so terminate or vacate), perform each obligation (D) Borrower has not received written notice from any tenant under such Lease claiming that Borrower (or any prior landlord) is in default thereunder, and to be performed the knowledge of Borrower there are no defaults under such Lease by the landlord under each Lease; not borrow againstany party thereto, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for (E) no Revenue has been paid more than one (1) month in advance; advance of its due date, (F) all work to be performed by Borrower (or any prior landlord) under such Lease (other than, with respect to the Master Lease, the Required Improvements) has been performed as required and not permit has been accepted by the applicable tenant, (G) any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any tenant has already been received by such tenant, (H) all security deposits are held by Borrower in accordance with the terms of such Lease and applicable Legal Requirements, (I) no tenant under such Lease is a debtor in state or federal bankruptcy, insolvency, or similar proceeding, (J) other than Master Tenant to assign its under the Master Lease, no tenant under such Lease (or any sublease) is an Affiliate of Borrower, (K) except, in each case, in accordance with the express provisions of this Agreement, no tenant has assigned any interest in such Lease or sublet all or any portion of the premises covered by demised thereby, no such tenant holds its Leaseleased premises under assignment or sublease, unless required to do so by the terms thereof nor does anyone except such tenant and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:its
Appears in 1 contract
Sources: Loan Agreement (Instil Bio, Inc.)
Leases. (a) Notwithstanding anything Borrower shall furnish Lender with executed copies of all Leases. Borrower hereby covenants and agrees that all new Leases and renewals or amendments of Leases shall be entered into on an arms-length basis with Tenants whose identity and creditworthiness is appropriate for tenancy in a class A office building, shall provide for rental rates and other economic terms which, taken as a whole, are at least equivalent to then-existing market rates, based on the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consentapplicable market, and shall furnish contain terms and conditions that are Commercially Reasonable (in each case, unless Lender consents to Mortgageesuch Lease in its sole discretion). In connection with and as a condition to any new Major Lease and any renewal or amendment of any Major Lease, upon executionBorrower shall deliver to Lender an Officer’s Certificate certifying that same complies with the preceding sentence. All new Leases shall provide that they are subject and subordinate to any current or future mortgage financing on the Property and that the Tenant agrees to attorn to any foreclosing mortgagee at such mortgagee’s request, a complete and fully executed copy provided such mortgagee agrees not to disturb such Tenant’s tenancy except in accordance with its Lease. Contemporaneously with the execution of each new Major Lease. Mortgagor , Borrower shall provide Mortgagee deliver to Lender an Officer’s Certificate confirming that such Major Lease is in compliance with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s optionSection 5.8(a).
(b) Mortgagor shallAny Lease containing an option or preferential right to purchase any portion of the Property, at its cost and expenseany Lease with an affiliate of Borrower as Tenant, perform each obligation shall be subject to be performed by the landlord prior written approval of Lender. In addition, upon the occurrence and during the continuance of an Event of Default, all new Major Leases, and all terminations, renewals and amendments of Major Leases, and any surrender of rights under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Major Lease, unless required shall be subject to do so by the prior written approval of Lender. Except during the continuance of an Event of Default, each request for approval of a Major Lease which is submitted to Lender in an envelope marked “URGENT – LENDER’S ATTENTION REQUIRED WITHIN 15 BUSINESS DAYS”, together with a copy of the proposed lease, a summary of the economic terms thereof and then only any termination options contained therein, and copies of all written materials obtained by Borrower in connection with its evaluation of the creditworthiness of the proposed Tenant or, with respect to a proposed termination, a description of the reason therefor, shall be deemed approved if such assignment does Lender shall not work to relieve have notified the Tenant of any liability for performance Borrower in writing of its obligations thereunderdisapproval and the reasons therefor within 15 Business Days after Lender’s receipt of such submission. Borrower may also request, pursuant to the procedure described in the preceding sentence, Lender’s approval of the rent and other amounts payable under a proposed Major Lease and the identity of the proposed Tenant even if the form of the proposed Major Lease is not yet available for Lender’s review, provided that the approval or deemed approval of such items shall not constitute Lender’s approval of such Major Lease, and when the proposed Major Lease becomes available Borrower shall be required to submit it for Lender’s approval in accordance with the procedure described in the preceding sentence. If Lender shall have previously consented or been deemed to have consented to the rent and other amounts payable under such proposed Major Lease and the identity of the proposed Tenant, Lender’s approval of such proposed Major Lease shall not be withheld unless the terms of such proposed Major Lease, taken as a whole, are not Commercially Reasonable.
(c) If any Borrower shall (i) deliver to each new Tenant shall default under its a Tenant Notice upon execution of such Tenant’s Lease, Mortgagor shalland promptly thereafter deliver to Lender a copy thereof and evidence of such Tenant’s receipt thereof; (ii) observe and perform all the material obligations imposed upon the lessor under the Leases; (iii) enforce all of the material terms, covenants and conditions contained in the ordinary course Leases on the part of businessthe lessee thereunder to be observed or performed, exercise sound business judgment with respect short of termination thereof, provided that Borrower may terminate any Lease following a material default thereunder by the respective Tenant; (iv) not seek to such default, but may collect any of the rents thereunder more than one month in advance; (v) not discount, compromise, forgive execute any assignment of lessor’s interest in the Leases or waive claims or discharge associated rents other than the Tenant from its obligations under the Lease Assignment of Rents and Leases; and (vi) not cancel or terminate or accept a surrender any guarantee of any of the Lease Major Leases without the prior written consent of MortgageeLender.
(d) If Mortgagor fails to perform Security deposits of Tenants under all Leases, whether held in cash or any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so performother form, Mortgagee may, but shall not be obligated tocommingled with any other funds of Borrower and, without waiving if cash, shall be deposited by Borrower at such commercial or releasing Mortgagor from savings bank or banks as may be reasonably satisfactory to Lender and pledged to Lender. Any bond or other instrument which Borrower is permitted to hold in lieu of cash security deposits under any Obligationapplicable Legal Requirements shall be maintained in full force and effect unless replaced by cash deposits as described above, remedy shall be issued by an institution reasonably satisfactory to Lender, shall (if not prohibited by any Legal Requirements) name Lender as payee or mortgagee thereunder (or at Lender’s option, be fully assignable to Lender) or may name Borrower as payee thereunder so long as such failurebond or other instrument is pledged to Lender as security for the Indebtedness and shall, in all respects, comply with any applicable Legal Requirements and otherwise be reasonably satisfactory to Lender. Borrower shall, upon Lender’s request, provide Lender with evidence reasonably satisfactory to Lender of Borrower’s compliance with the foregoing. During the continuance of any Event of Default, Borrower shall, upon Lender’s request, deposit with Lender in an Eligible Account pledged to and under the sole dominion and control of Lender an amount equal to the aggregate security deposits of the Tenants (and any interest theretofore earned on such security deposits and actually received by Borrower) which Borrower received in cash and had not returned to the applicable Tenants or applied in accordance with the terms of the applicable Lease, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee Lender shall hold such security deposits in remedying any a segregated account and apply or return such failure, together security deposits in accordance with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)applicable Leases.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Loan Agreement (KBS Real Estate Investment Trust II, Inc.)
Leases. (a) Notwithstanding anything Upon Lender’s request, Borrower shall furnish Lender with executed copies of all Leases, together with a detailed breakdown of income and cost associated therewith to the contrary hereinextent the same has been prepared by Borrower. All new Leases and renewals or amendments of Leases must be entered into on an arms-length basis with Tenants whose identity and creditworthiness, Mortgagor shall not enter into any Lease without Mortgageein Borrower’s prior written consentgood faith judgment, is appropriate for tenancy in property of comparable quality, must provide for rental rates and other economic terms which, in Borrower’s good faith judgment, taken as a whole, are at least equivalent to then-existing market rates, based on the applicable market, and shall furnish must contain terms and conditions that are commercially reasonable (in each case, unless Lender consents to Mortgageesuch Lease in its sole discretion). Subject to the terms of the Encumbered Property Debt Documents, upon execution, a complete all new Leases must provide that they are subject and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgageany current or future mortgage financing on the applicable Property and that the Tenant agrees to attorn to any foreclosing mortgagee at such mortgagee’s request, at Mortgageeprovided such mortgagee agrees to not disturb such Tenant’s optiontenancy except in accordance with its Lease.
(b) Mortgagor shallAll new Leases which are Major Leases, at and all terminations, renewals and material amendments of Major Leases, and any surrender of rights under any Major Lease, shall be subject to the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed. To facilitate Borrower’s leasing process, Borrower shall have the right to present prospective leasing transactions to Lender for its cost and expense, perform each obligation approval prior to be performed by the landlord under each negotiation of a final Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit . Such presentation shall include a summary term sheet of all material terms of the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its proposed Lease or sublet a draft of the premises covered proposed Lease together with any additional information concerning such proposed Lease and the proposed Tenant thereunder as may be reasonably requested by its LeaseLender (the “Lease Term Sheet”). Each request for approval of a Lease or a Lease Term Sheet shall be submitted to Lender in an envelope marked “URGENT – LENDER’S ATTENTION REQUIRED WITHIN 7 BUSINESS DAYS”, unless required to do so by together with (i) a copy of the proposed Lease or the Lease Term Sheet, (ii) a summary of the economic terms thereof and then only any termination options contained therein together with a detailed breakdown of income and costs associated with the proposed Lease, and (iii) copies of all written materials obtained by the applicable Borrower in connection with its evaluation of the creditworthiness of the proposed Tenant, and shall be deemed approved if Lender shall not have notified Borrower in writing of its disapproval thereof and the reasons for such assignment disapproval within three Business Days after Borrower shall have given Lender written notice confirming that at least seven Business Days have elapsed since such submission, which written notice shall be submitted to Lender in an envelope marked “URGENT – SECOND AND FINAL NOTICE – LENDER’S ATTENTION REQUIRED BY [DATE]”. If Lender approves or is deemed to have approved the Lease Term Sheet, Lender’s approval of the final Lease shall be limited to Lender’s reasonable confirmation that the final Lease does not work (i) deviate in any material adverse respect from the terms set forth on the Lease Term Sheet or contain any material adverse terms not set forth in the Lease Term Sheet, or (ii) deviate in any material respect from the approved Lease form (and otherwise such final Lease shall be subject to relieve the Tenant Lender’s reasonable written approval). Borrower shall deliver to Lender a copy of any liability for performance of its obligations thereunderLease executed pursuant to a Lease Term Sheet together with an Officer’s Certificate indicating any material deviations from such Lease Term Sheet.
(c) If any Tenant Borrower shall default (i) observe and perform all the material obligations imposed upon the lessor under its Leasethe Leases; (ii) enforce, Mortgagor shallto the extent commercially reasonable, all of the material terms, covenants and conditions contained in the ordinary course Leases on the part of businessthe lessee thereunder to be observed or performed, exercise sound business judgment with respect to such defaultshort of termination thereof, but except that Borrower may terminate any Lease following a material default thereunder by the respective Tenant; (iii) not discount, compromise, forgive collect any of the rents thereunder more than one month in advance; (iv) not execute any assignment of lessor’s interest in the Leases or waive claims or discharge associated rents other than the Tenant from its obligations assignments of rents and leases under the Lease Mortgages and the Encumbered Debt Documents; and (v) not cancel or terminate or accept a surrender any guarantee of any of the Lease Major Leases without the prior written consent of MortgageeLender. Borrower shall deliver to each new Tenant at a Mortgage Loan Collateral Property a Tenant Notice upon execution of such Tenant’s Lease or include same in such Tenant’s Lease or invoices, and promptly thereafter deliver to Lender a copy thereof and evidence of such Tenant’s receipt thereof.
(d) To the extent required by applicable law, security deposits of Tenants under all Leases, whether held in cash or any other form, shall not be commingled with any other funds of Borrower and, if cash, shall be deposited by Borrower in an Eligible Account or such other account at such commercial or savings bank as may be reasonably satisfactory to Lender, which account (if any) is hereby pledged to Lender. Borrower shall, upon Lender’s request, provide Lender with evidence reasonably satisfactory to Lender of Borrower’s compliance with the foregoing. During the continuance of any Event of Default, Subject to the Encumbered Property Debt Documents, Borrower shall, upon Lender’s request, deposit with Lender in an Eligible Account pledged to Lender an amount equal to the aggregate security deposits of the Tenants (and any interest theretofore earned on such security deposits and actually received by Borrower) which Borrower had not returned to the applicable Tenants or applied in accordance with the terms of the applicable Lease.
(e) Whenever a Lease at a Mortgage Loan Collateral Property is terminated, whether by buy-out, cancellation, default or otherwise, and Borrower is entitled to any payment, fee or penalty in respect of such termination, Borrower shall promptly cause such payment, fee or penalty to be deposited into an Eligible Account pledged to Mortgage Lender in accordance with the Mortgage Loan Agreement. Subject to the terms of the Encumbered Property Debt Documents, whenever a Lease at an Other Property is terminated, whether by buy-out, cancellation, default or otherwise, and Borrower or a Property Owner is entitled to any payment, fee or penalty in respect of such termination (a “Termination Fee”), Borrower shall promptly cause such Termination Fee to be deposited into an Eligible Account pledged to Lender. Provided no Event of Default has occurred and is continuing, (i) Lender shall disburse such Termination Fee to Borrower at the written request of Borrower in respect of Leasing Commissions and Tenant Improvement costs incurred by Borrower in connection with replacement Leases at any Properties other than Value Add Pool Properties, Disposition Asset Properties or any Property with an Aggregate Allocated Loan Amount of zero, in each case provided such Lease is entered into in accordance with the terms of this Agreement.
(f) Within ten Business Days after receipt of written request therefor, provided Lender has received a copy of the executed corresponding Lease, Lender shall execute and deliver to Borrower a subordination, non-disturbance and attornment agreement (an “SNDA”). If Mortgagor fails the form of the SNDA shall be prescribed by the Lease in question, and Lender shall have approved (or been deemed, in accordance with Section 5.7(b) hereof, to perform have approved) such Lease (and the form of SNDA was attached to the draft Lease that was delivered to Lender as part of Borrower’s request for approval), Lender shall execute and deliver the SNDA in the form prescribed by such approved Lease. Notwithstanding the foregoing, in the case of any obligations Lease as to which Lender’s approval is not required pursuant to this Section 5.7 where such tenant thereunder requests an SNDA, the SNDA to be executed and delivered by Lender shall be in substantially the form attached hereto as Exhibit G, and such form shall also be attached to Borrower’s standard form of Mortgagor Lease as approved by Lender. Lender agrees to reasonably negotiate the terms of the SNDA with any Tenant under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee mayLease, but shall not be obligated to, without waiving or releasing Mortgagor required to execute an SNDA that differs in any material respect from any Obligation, remedy such failure, the form attached hereto as Exhibit G. All reasonable out-of-pocket attorneys’ fees and Mortgagor agrees to repay upon demand all sums disbursements incurred by Mortgagee Lender in remedying any connection with such failureSNDA shall be payable by Borrower within ten Business Days after Lender’s written request therefor, together with interest thereon from whether or not the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)SNDA is ultimately executed and/or recorded.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
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Leases. (a) Notwithstanding anything Seller and Buyer have agreed to a form of office lease substantially in the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish form attached here to Mortgagee, upon execution, a complete and fully executed copy of each as Exhibit “DD” (the “Office Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease ”) to be prior entered into if EMMR, or subordinate any permitted assignee of EMMR under the Mining Lease, wishes to this Mortgageoccupy certain office premises at the Eagle Mountain Property after the Closing on the terms provided therein; provided, at Mortgagee’s optionhowever, that entry into the Office Lease is not a condition of Closing and is not required of EMMR or any other party.
(b) Mortgagor shallSeller and Buyer have agreed to the form of that certain Warehouse and Maintenance Lease attached hereto as Exhibit “EE” (the “Warehouse and Maintenance Lease”) pursuant to which KEM shall lease space within the Maintenance Building to EMMR and and grant EMMR an option to lease additional space within the Warehouse on the terms provided therein. As of the date hereof, at its cost and expense, perform each obligation the premises to be performed by leased to EMMR under the landlord under each Warehouse and Maintenance Lease are currently leased to FPN-USA, Inc. (“FPN”) pursuant to that certain Warehouse and Maintenance Lease dated June 24, 2015 (the “FPN Lease; not borrow against”), pledge attached hereto as Exhibit “FF”. Should EMMR’s interest in the Mining Agreement be assigned to FPN purusant to the terms thereof, (i) the FPN Lease shall terminate, (ii) KEM and EMMR shall enter into the Warehouse and Maintenance Lease, and (iii) EMMR and FPN shall enter into a sublease pursuant to a sublease agreement substantially in the form of the Warehouse and Maintenance Lease or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant EMMR shall be permitted to assign its interest in the Warehouse and Maintenance Lease pursuant to the provisions thereof. Should the FPN Lease expire or sublet be terminated prior to any permitted assignment of the premises covered by its Mining Lease, unless required to do so by EMMR and KEM shall enter into the terms thereof Warehouse and then only if Maintenance Lease upon such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive termination or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender expiration of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond FPN Lease).
(e) For purposes . The provisions of this Mortgage, Section 21.9 shall survive the following terms shall have the following meanings:Closing.
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Leases. No Borrower shall, without the Administrative Agent’s prior written consent (a) Notwithstanding anything such consent not to the contrary hereinbe unreasonably withheld), Mortgagor shall not enter into any lease for space in the applicable Project if such lease is a Material Lease. All Leases for space at the Project (including Material Leases) shall be (x) on the applicable Borrower’s standard form of lease, a copy of which is attached hereto as Exhibit E, with such non-material changes as shall be commercially reasonable effected as a result of negotiations with the applicable Tenant and, (y) subject and subordinate to the Loan Documents and the Liens granted pursuant to the Collateral Documents (either pursuant to the terms of the Lease or a subordination, non-disturbance and attornment agreement entered into by the Tenant, the applicable Borrower and the Agent). No Borrower will amend any Material Lease without MortgageeAdministrative Agent’s prior written consent, and shall furnish not to Mortgageebe unreasonably withheld, upon executionconditioned or delayed. No Borrower will amend any Lease in effect as of the Closing Date to extend the term to more than five (5) years from the date of such amendment or grant to the Tenant thereunder a renewal option or to expand the premises leased to such Tenant or any Affiliate of such Tenant to more than 7,500 square feet, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring without the prior written consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease Administrative Agent, not to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign unreasonably delayed. No Borrower shall collect any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for Rent more than one (1) month in advance; and not permit advance or, without limitation of the foregoing, amend or modify any Tenant to assign its Lease in any material respect or sublet the premises covered by its hold any security or other deposit under a Lease, unless required to do so by except in accordance with applicable Law and the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its applicable Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with . With respect to any written request (including an e-mail request) by Borrower to Administrative Agent for consent to a Material Lease (or any amendment or modification thereto), Administrative Agent shall either approve or deny such defaultrequest within ten (10) Business Days following receipt of such request, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor and if Administrative Agent fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor respond to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy Borrower within such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent ten (9.5%10) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease).
(e) For purposes of this Mortgageday period, the following terms request shall be deemed to have the following meanings:been denied.
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Leases. (a) Notwithstanding anything Except as permitted pursuant to this Section 4.6, Borrower shall not permit or cause any Borrower Affiliate to enter into, modify, amend, consent to the contrary hereincancellation or surrender of (except to the extent such cancellation or surrender is by the Tenant pursuant to a pre-existing unilateral right under its Lease) or terminate any Lease whether now existing or hereafter entered into, Mortgagor without the prior written consent of Lender, which may be granted or withheld in Lender's sole discretion. Notwithstanding the foregoing, if (a) Borrower makes the First Mandatory Prepayment in accordance with Section 2.3.2(b) hereof and (b) Camp Hill LLC is required, pursuant to the terms of the Camp Hill Loan Documents, to obtain the prior written consent of the Camp Hill Lender to take any of the actions described in this Section 4.6(a) with respect to any Leases affecting the Camp Hill Property, then Borrower shall not enter into any Lease without Mortgagee’s be required to obtain Lender's prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate pursuant to this MortgageSection 4.6(a) with respect to Leases affecting the Camp Hill Property so long as no Event of Default shall have occurred, at Mortgagee’s optionin which case, Lender's prior written consent shall be required hereunder.
(b) Mortgagor shall, at its cost Borrower shall timely cause each Borrower Affiliate to comply with or cause to be timely complied with all material terms and expense, perform each obligation conditions on the landlord's part to be performed by the landlord under each Lease; . Borrower shall cause each Borrower Affiliate to neither do nor neglect to do, nor permit to be done, anything which may cause the termination of any Lease, other than due to the default of the Tenant(s) under such Lease. Borrower shall cause each Borrower Affiliate to not borrow against, pledge or further assign collect any rents rent or other payments due thereunder; not permit the prepayment of payment under any rents or other payments due for Lease more than one (1) month in advance; advance of the due date thereof (except as disclosed on the Rent Rolls) and not permit any Tenant shall cause each Borrower Affiliate to assign use its Lease or sublet best efforts to require the premises covered by its Lease, unless required to do so performance of all of the obligations of Tenants and other Persons bound by the terms thereof Leases and then only if such assignment does not work to relieve enforce the Tenant of any liability for performance of its obligations thereunderLeases, subject, however, to the limitation on termination described in this Section 4.6.
(c) If Borrower may cause each Borrower Affiliate to, without Lender's prior written consent, enter into any Tenant shall default under its Lease which will not be a Major Lease when such Lease comes into effect, provided that each of the following conditions is satisfied: (i) the rent and other material business terms of such Lease are on market terms for similarly situated properties; (ii) the Lease does not provide for the rent to decline at any point during the term of such Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment ; (iii) such Lease does not contain any options to purchase or other rights with respect to the ownership of the applicable Property; (iv) such defaultLease does not contain any restrictions on the landlord's rights to lease remaining portions of the applicable Property, but except that such Lease may contain options to lease additional space in the applicable Property on then existing market terms; (v) such Lease does not discount, compromise, forgive or waive claims or discharge contain any options for the Tenant thereunder to terminate such Lease, other than in the event of the applicable Borrower Affiliate's failure to deliver possession of the applicable premises or a material casualty or condemnation or the applicable Borrower Affiliate's failure to deliver vacant possession; (vi) such Lease does not contain any extraordinary landlord obligations (including obligations which an unaffiliated landlord would have difficulty performing); (vii) such Lease is entered into on the standard form of Lease which Lender has previously approved, with such non-material changes thereto as a proposed tenant may request and the applicable Borrower Affiliate is willing to agree to; (viii) such Lease is entered into on arms length terms, without consideration of any relationship with any Borrower Entity, any Affiliate of any Borrower Entity, may otherwise have with the Tenant thereunder or any Affiliate thereof; and (ix) the Lease shall contain each of the provisions required by this Section 4.6.
(d) Borrower may permit any Borrower Affiliate, without Lender's prior written consent, to modify or amend any Lease which is not a Major Lease, provided that either (i) such modification or amendment is required to be entered into pursuant to the express terms of such Lease, or (ii) each of the following conditions is satisfied: (A) such amendment or modification is entered into on an arms-length basis without consideration of any relationship of any Borrower Entity or any Affiliate of any Borrower Entity with the Tenant thereunder or any Affiliate thereof; (B) such Lease would not be a Major Lease and would, after such amendment or modification, satisfy the conditions set forth in clauses (ii), (iii), (iv), (v), (vi), (vii) and (ix) of Section 4.6(c) hereof; (C) such amendment or modification does not release any party from its obligations liability under the Lease or terminate reduce the square footage demised thereunder; (D) to the extent that any additional space is demised pursuant to such amendment or accept modification, with respect thereto, such amendment or modification satisfies this Section 4.6(d); (E) such amendment or modification does not reduce the rent paid under the Lease; and (F) such amendment or modification does not otherwise have a surrender material adverse effect on the fair market value of the Lease applicable Property. Borrower may permit any Borrower Affiliate, without the prior written consent of Mortgagee.
(d) If Mortgagor fails Lender, to perform any obligations of Mortgagor under terminate any Lease which is not a Major Lease in its good faith exercise of its remedies under such Lease, or if Mortgagee becomes aware of at law or is notified in equity, by any Tenant reason of a failure on material monetary default having continued under such Lease beyond the part expiration of Mortgagor to so performapplicable cure periods. Without first obtaining Lender's prior written consent, Mortgagee may, but Borrower shall not permit or cause any Borrower affiliate to consent to any assignment or subletting of any Lease unless the consent of the applicable Borrower Affiliate may not be obligated withheld under such circumstances under the terms of the applicable Lease, except that Borrower may permit or cause any Borrower Affiliate to, without waiving Lender's prior written consent, consent to any assignment or releasing Mortgagor from subletting which does not release the liability of any ObligationPerson then liable thereunder as tenant, remedy guarantor or otherwise if such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess assignment or subletting is of the one month LIBOR Rate (as set forth and defined in the Bond a Lease which is not a Major Lease).
(e) For purposes Each Lease executed by any Borrower Affiliate after the date hereof shall provide, in a manner satisfactory to Lender, for (i) the Tenant thereunder to give a notice to Lender of this Mortgageeach material default by the landlord or licensor thereunder, simultaneously with the following terms shall giving of notice of such default to such landlord or licensor, (ii) Lender to have the following meanings:right, but not the obligation, to cure any default by the landlord or licensor thereunder after the expiration of the landlord's or licensor's cure period, if any, and (iii) execution and delivery (not more than ten (10) Business Days after a request therefor) of an estoppel certificate reasonably satisfactory to Lender. All actual out of pocket costs and expenses of Lender (including, without limitation, reasonable attorneys' fees and disbursements) in connection with Lender's review of any Lease shall be paid by Borrower within five (5) Business Days after request therefor by Lender. Prior to seeking Lender's consent to any Lease, Borrower shall deliver to Lender a copy of such Lease, blacklined to show the changes from the standard form of Lease previously approved by Lender, together with a detailed term sheet setting forth the material terms of such Lease.
(f) Security Deposits shall not be commingled with any other funds of any Borrower Affiliate and, if cash, shall be deposited at such commercial or savings bank or banks as may be reasonably satisfactory to Lender. Any bond or other instrument which any Borrower Affiliate is permitted to hold in lieu of Security Deposits in the form of cash under any applicable legal requirements (i) shall be maintained in full force and effect in the full amount of such deposits unless replaced by cash deposits as herein above described, (ii) shall be issued by an institution reasonably satisfactory to Lender, and (iii) shall in all respects comply with any applicable Legal Requirements and otherwise be satisfactory to Lender. Borrower shall, upon request, provide Lender with evidence satisfactory to Lender of compliance with the foregoing.
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Leases. (a) Notwithstanding anything Mortgagor may, from time to time, enter into Leases for all or any portion of the contrary hereinPremises without the consent of Mortgagee or notice to Mortgagee, provided, however, the Mortgagor shall not enter into any a Major Lease without Mortgagee’s (as hereafter defined) unless and until (1) Mortgagor shall give Mortgagee fifteen (15) days prior written consentnotice of its intent (the “Major Lease Notice”) to enter the Major Lease, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee together with a copy of each such proposed Major Lease; and (2) Mortgagor shall deliver to Mortgagee simultaneously with such Major Lease requiring Notice a legal opinion from counsel reasonably acceptable to Mortgagee stating that entering into the Major Lease by Mortgagor shall have no material adverse effect on the priority and validity of the lien granted hereunder. subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights as to which no opinion need be expressed. Mortgagee agrees that Mortgagee, at the request of Mortgagor, will enter into a Subordination, Non-Disturbance and Attornment Agreement in the form annexed as Exhibit D (the “Non-Disturbance Agreement”) with the lessee or tenant under any lease. Mortgagor may terminate or consent to the cancellation or surrender of Mortgagee and any of the Leases or of any part thereof, now existing or hereafter to be made, modify any Lease so as to shorten the unexpired term thereof or so as to decrease, waive or compromise in any manner the amount of the rents payable thereunder or modify, release or terminate any guaranties of any Lease or otherwise deal with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgagelease, at Mortgagee’s option.
(b) any of which actions of Mortgagor shall, at its cost and expensehowever, perform each obligation be subject to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment terms of any rents Non-Disturbance Agreement entered into between Mortgagee and Lessee or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet tenant of Mortgagor, if any. Notwithstanding the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so performforegoing, Mortgagee may, but at its discretion, withhold entering into the Non-Disturbance Agreement for a Major Lease if (i) such tenant under the Major Lease does not have a credit rating (according to Dun & Bradstreet or other recognized national credit rating organization) equal to or greater than the borrowers under the Notes on a consolidated basis; (ii) the term of the Lease would not extend beyond the maturity date of the Notes (except that if the Lease is of the entire Premises this clause (ii) shall not be obligated toapply); (iii) the rent is not the fair market rent at the inception of the Lease; and (iv) the use under the Lease violates zoning or other similar laws applicable to the Mortgaged Property or is a use which requires the tenant to register as a generator of hazardous wastes with the appropriate governmental authorities except to the extent such use is now being carried on by Mortgagor at the Mortgaged Property but excluding any such use which violates any governmental laws, without waiving ordinances, orders or releasing directives, rules or regulations affecting the Mortgaged Property, including rules and regulations of any Board of Fire Underwriters (or other agency exercising similar functions) having jurisdiction over the Mortgaged Property. Notwithstanding the foregoing, nothing herein contained shall prohibit or limit Mortgagor from permitting any Obligation, remedy such failure, and corporate affiliate of Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying use or occupy the Premises or any such failure, together with interest thereon from the date incurred at an annual rate equal part thereof without notice to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)Mortgagee.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Open End Mortgage Deed and Security Agreement (General Datacomm Industries Inc)
Leases. (a) Notwithstanding anything Prior to the contrary hereinexecution of any new leases for any Individual Property or the renewal, Mortgagor extension or expansion of any existing Leases for any Individual Property, the applicable Seller shall give notice of its intent to do so to Buyer (which notice may be given by e-mail to the Buyer’s e-mail addresses identified in Section 13.9 and Seller shall not be required to follow such notice with a hard copy thereof notwithstanding the notice requirements of Section 13.9). Such notice shall include a copy of all documentation that Seller wishes to enter into, the amount of space involved, the length of the lease term, the proposed rent and the amount of any leasing commission, tenant improvement costs and other tenant allowances. Buyer shall have five (5) Business Days after receipt of such notice to notify Seller of its objections, if any, to any such proposed lease or extension, renewal or expansion of any existing Lease. During the Due Diligence Period, Buyer shall not have any approval rights over proposed leases or renewals, extensions or expansions of existing Leases. Accordingly, until the fifth (5th) Business Day prior to the end of the Due Diligence Period, Seller may enter into such proposed lease or renewal, extension or expansion of any existing Lease five (5) Business Days after the notice to Buyer required under this Section 9.2.2(b). Seller shall deliver to Buyer true and correct copies of new Leases and amendments, renewals, extensions, expansions or terminations within two (2) Business Days after execution thereof but, with respect to those lease documents entered into during the Due Diligence Period, in no event less than five (5) Business Days prior to the end of the Due Diligence Period. After the fifth (5th) Business Day prior to the end of the Due Diligence Period, Sellers shall not enter into any new lease or renewal, extension, expansion, assignment (other than pursuant to the Assignment of Leases and the Assignment of Ground Lease in connection with Closing) or termination of an existing Lease without MortgageeBuyer’s prior written consentapproval, in Buyer’s sole discretion, except for new leases and shall furnish to Mortgageerenewals, upon executionextensions or expansions of existing Leases evidencing or reflecting the exercise by tenants of any rights or options, a complete and fully executed copy the terms of each Leasewhich are fixed or determinable as of the Effective Date, under existing Leases. Mortgagor shall provide Mortgagee with a copy In the case of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding exception specified in the immediately preceding sentence, Seller may enter into the proposed Tenant thereunderrenewal, extension or expansion of an existing Lease without Buyer’s approval. Mortgagee may declare each Buyer’s failure to object in writing within the five (5) Business Day period described above shall be deemed approval by Buyer. Nothing in this Section 9.2.2 shall be interpreted to require any particular Lease be in place at Closing or require any Seller to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign lease any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, additional space in the ordinary course of businessProperty, exercise sound business judgment with respect as a condition to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender sale of the Lease without the prior written consent of Mortgagee.
(dProperty. All leases or amendments thereto executed in accordance with this Section 9.2.2(b) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not also be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand deemed “Leases” for all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Washington Real Estate Investment Trust)
Leases. (ai) All Leases and all renewals of Leases executed after the date hereof shall (A) provide for rental rates comparable to existing local market rates for similar properties, (B) be on commercially reasonable terms, (C) provide that such Lease is subordinate to the Deed of Trust, that the lessee will attorn to Lender and any purchaser at a foreclosure sale, provided that Lender or purchaser at a foreclosure sale agrees to the non-disturbance of such Lease so long as the tenant thereto pays all rents and other charges as specified in such Lease and is not otherwise in default (beyond applicable notice and cure periods) of any of its obligations and covenants pursuant to the Lease, and (D) not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents. All Leases over 10,000 square feet (“Major Leases”) and all other Leases and all renewals, amendments and modifications thereof executed after the date hereof shall be subject to Lender’s prior approval, which approval shall not be unreasonably withheld or delayed. In connection with any renewal, amendment or modification executed after to any Major Lease or Lease, Borrower shall submit to Lender a term sheet (the “Term Sheet”) identifying the proposed tenant, the proposed leased space, term, rent, tenant options, free rent periods, tenant improvement allowances, and other tenant concessions, and all other material economic terms of such proposed lease, together with all information and materials regarding the financial status, creditworthiness, and reputation of such proposed tenant, and any other information regarding the proposed lease and tenant as Lender shall reasonably request. If such Lease is not a Qualified Lease (a “Non-Qualified Lease”) pursuant to this Section 8(r), Lender shall either approve or disapprove such proposed lease within five (5) Business Days after delivery to Lender of the Term Sheet together with all other materials required to be delivered to Lender hereunder or requested by Lender. If Lender fails to approve or reject the proposed Non-Qualified Lease within such five (5) Business Day period, such proposed lease shall be deemed approved by Lender, provided the Term Sheet was delivered to Lender accompanied by a notice stating in bold face type: “THIS IS A REQUEST FOR LEASE APPROVAL. IF LENDER FAILS TO RESPOND WITHIN FIVE (5) BUSINESS DAYS, THE LEASE WILL BE DEEMED APPROVED.” If Lender approves (or is deemed to have approved) a Term Sheet, Borrower may thereafter execute a lease with such proposed tenant provided that (i) such lease is upon the terms set forth in the Term Sheet in all material respects, and (ii) such lease is on the standard lease form approved by Lender with no material adverse modifications (except as approved by Lender). Such lease form shall provide that the tenant shall attorn to Lender, and that any cancellation, surrender, or amendment of such lease without the prior written consent of Lender shall be voidable by Lender. Notwithstanding anything to the contrary hereincontained in the Loan Documents, Mortgagor Lender’s approval shall not enter into be required with respect to any proposed future Leases or Lease without Mortgagee’s prior written consentextensions or amendments (each, a “Qualified Lease”) if the following conditions are satisfied: (1) there exists no Event of Default; (2) the lease is on the standard lease form approved by Lender with no material adverse modifications; (3) the lease does not conflict with any restrictive covenant affecting the Property or any other lease for space in the Property; (4) the leased premises, when combined with all other space in the Property leased to the same tenant or any Affiliate thereof, is less than 5,000 rentable square feet, (5) loan disbursements for leasing costs for such lease shall not exceed $500,000, (6) the tenant under such lease is not an Affiliate of Borrower and such lease is on terms which are arm’s-length and commercially reasonable given then-current market conditions, and shall furnish (7) Borrower delivers to Mortgagee, upon execution, Lender within five (5) Business Days after its execution of such lease (i) a complete and fully executed copy of each such lease (as amended) certified by Borrower as true and complete, and (ii) a certificate of Borrower certifying that the lease (as amended) satisfies all of the conditions of this Section 8(r) to qualify as a Qualified Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(bii) Mortgagor shallBorrower (i) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) shall enforce the terms, at its cost covenants and expense, perform each obligation conditions contained in the Leases upon the part of the lessee thereunder to be observed or performed by in a commercially reasonable manner, provided, however, Borrower shall not terminate or accept a surrender of a Major Lease without Lender’s prior approval; (iii) shall not collect any of the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advanceadvance (other than security deposits); and (iv) shall not permit execute any Tenant to assign its Lease assignment of lessor’s interest in the Leases or sublet the premises covered by its Lease, unless required to do so rents (except as contemplated by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
Loan Documents); (cv) If any Tenant shall default under its Leasenot, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of MortgageeLender, alter, modify or change any Major Lease so as to change the amount of or payment date for rent, change the expiration date, grant any option for additional space or term, materially reduce the obligations of the lessee or increase the obligations of lessor; and (vi) shall hold all security deposits under all Leases in accordance with Legal Requirements. Upon request, Borrower shall furnish Lender with executed copies of all Leases.
(diii) If Mortgagor fails Notwithstanding anything contained herein to perform the contrary, Borrower shall not willfully withhold from Lender any obligations information regarding renewal, extension, amendment, modification, waiver of Mortgagor under provisions of, termination, rental reduction of, surrender of space of, or shortening of the term of, any Lease or if Mortgagee becomes aware during the term of or is notified by the Loan. Borrower further covenants and agrees that all tenants at the Property as of the date hereof are in physical occupancy of the premises demised under their Leases, are paying full rent under their Leases (except for VA Tech Hydro USA Corp., a Delaware corporation, pursuant to the terms of its Lease), and have not exercised any Tenant right to “go dark” that they may have under the provisions of their Leases. Borrower further agrees to provide Lender with written notice of a tenant “going dark” under such tenant’s Lease within five (5) Business Days after such Tenant “goes dark” and Borrower’s failure on the part to provide such notice shall constitute an Event of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)Default.
(eiv) For purposes Borrower shall notify Lender in writing, within two (2) Business Days following receipt thereof, of this MortgageBorrower’s receipt of any early termination fee or payment or other termination fee or payment paid by any tenant under any Lease, and Borrower further covenants and agrees that Borrower shall hold any such termination fee or payment in trust for the following terms benefit of Lender and that any use of such termination fee or payment shall have be subject in all respects to Lender’s prior written consent in Lender’s sole discretion (which consent may include, without limitation, a requirement by Lender that such termination fee or payment be placed in reserve with Lender to be disbursed by Lender for tenant improvement and leasing commission costs with respect to the following meanings:Property and/or for payment of the Debt or otherwise in connection with the Loan evidenced by the Note and/or the Property, as so determined by Lender).
Appears in 1 contract
Sources: Loan and Security Agreement (NNN 2003 Value Fund LLC)
Leases. (a) Notwithstanding anything to the contrary herein, Mortgagor shall not enter into any Lease without MortgageeA. Without Lender’s prior written consent, and which may be granted or withheld in Lender’s sole discretion, Borrowers shall furnish not enter into or modify, amend, supplement, terminate or cancel any Lease of all or any part of any Property. Any submission by Borrowers for Lender’s consent to Mortgageea Lease or modification, upon executionamendment, a complete and fully executed copy of each Lease. Mortgagor supplement, termination or cancellation thereof shall provide Mortgagee with be accompanied by a copy of such Lease (together with a comparison of such Lease against the Lease Form for the applicable Property, showing all proposed modifications to the Lease Form) or modification, amendment, supplement, termination or cancellation, a then-current Rent Roll for the applicable Property, year-to-date and prior year operating statements for the applicable Property and a cover letter requesting Lender’s consent that contains a signature line on which Lender may evidence Lender’s consent to such Lease or modification, amendment, supplement, termination or cancellation (collectively, the “Lease Approval Deliveries”). Each Lease, and each modification, amendment, supplement, termination or cancellation of any Lease, shall be in writing.
B. Notwithstanding the foregoing provisions of this Section 5.1.18, Borrowers shall have the right to enter into “Safe-Harbor Leases” (as hereinafter defined) without Lender’s prior written consent. A “Safe-Harbor Lease” shall mean any proposed market Lease that meets the following criteria: (i) such Lease provides for base rent in an amount that is greater than or equal to the base rent being paid for the space to be demised under such proposed Lease requiring as of the date hereof, (ii) the rentable area to be demised pursuant to such proposed Lease which, when combined with any other space in the Property leased to Affiliates of the tenant under such proposed Lease, is less than 25,000 square feet, (iii) such proposed Lease shall be for a term of no less than three (3) years and no greater than fifteen (15) years, including any tenants extension options (other than one-year renewals), (iv) such Lease does not contain any options to purchase, rights of first refusal, rights of first offer, or other rights to acquire, the space demised pursuant to such Lease or all or any other portion of the applicable Property or interest therein, (v) such Lease does not contain any material restrictions on the landlord’s rights to lease any remaining portion of the Property not covered by such Lease, (vi) such Lease does not contain any extraordinary, uncustomary and unduly burdensome landlord obligations (including, without limitation, obligations that a landlord unaffiliated with Borrowers would have difficulty performing), (vii) such Lease is entered into on the standard form of Lease approved in writing by Lender, without material modification thereto and with such changes only as are necessitated by the business terms satisfying the requirements of this definition of “Safe-Harbor Lease” and other non-material changes that are commercially reasonable, and provided that such Lease conforms with the leasing guidelines and lease provisions hereunder and under the other Loan Documents, (viii) such Lease is entered into on arms-length terms with Persons that are not Affiliates of Borrowers, Guarantors or any other Borrowers Control Person, (ix) such Lease does not require the consent of Mortgagee the Permitted Mezzanine Lender under the Mezzanine Loan Documents, and (x) not later than the date that is ten (10) days following the execution of such Lease or a modification or amendment of a Safe-Harbor Lease, Borrowers shall provide Lender with a certified copy of such Lease or such modification or amendment of such Safe-Harbor Lease, together with (a) all other items required to be submitted with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgageas Lease Approval Deliveries, at Mortgagee’s option.
and (b) Mortgagor shall, at its cost and expense, perform each obligation a certificate from Borrowers certifying to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under Lender that the Lease (or, if applicable, such Lease together with such modification or terminate or accept amendment) is a surrender of Safe-Harbor Lease and that the Lease (or, if applicable, such Lease together with such modification or amendment) satisfies the requirements set forth herein to qualify as a Safe-Harbor Lease. For the avoidance of doubt, Borrowers may (without the prior written consent of MortgageeLender) enter into any modification or amendment of any Safe-Harbor Leases so long as such Safe-Harbor Lease shall remain a “Safe-Harbor Lease” following such modification or amendment.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. Except as provided in this Section 9(c), a copy of any amendment, renewal, termination or expansion of an Existing Lease or any new Lease that Seller desires to execute during the period commencing upon the date of this Agreement (athe “Lease Approval Period”) shall be submitted to Purchaser prior to execution by Seller (each, a “Submitted Lease”). Seller shall not enter into any Submitted Lease without the approval of Purchaser, such approval not to be unreasonably withheld, delayed or conditioned. It shall be deemed reasonable if Purchaser denies consent to any Submitted Lease if it will in Purchaser’s opinion interfere with any development plans for the Premises. Purchaser agrees to notify Seller in writing within four (4) business days after its receipt thereof of either its approval or disapproval thereof. In the event Purchaser fails to notify Seller in writing of its approval or disapproval within the four (4) business day period set forth above, Purchaser shall be deemed to have approved such Submitted Lease. Notwithstanding the foregoing, a “Submitted Lease” shall not include any amendment to an Existing Lease entered into by Seller solely to evidence the exercise by a tenant of a right or option granted to such tenant in its Lease. Seller shall also provide Purchaser with a copy of any amendment, renewal, termination or expansion of an Existing Lease or any new Lease entered into after the Effective Date, and agrees no such Lease shall contain any option to purchase all or a portion of the Premises. Notwithstanding anything to the contrary hereinherein contained, Mortgagor on or before Closing, the Existing Leases with Tribune Media Company and/or its affiliates shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish be amended and/or restated to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by reflect the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined on Exhibit P attached hereto in a form reasonably satisfactory to Purchaser (the Bond Lease“Tribune Media Lease Amendments”).
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. After the fifth (a5th) Notwithstanding anything day prior to the contrary hereinContingency Date, Mortgagor Seller shall not enter into execute any new lease (“New Lease”) or amend or terminate any existing Lease without Buyer’s approval, which shall not be unreasonably withheld or delayed. Seller shall deliver to Buyer copies of any New Leases, material amendments, expansions and extensions of existing Leases (each a “Lease Transaction”). Buyer’s failure to object to a Lease Transaction after the fifth (5th) day prior to the Contingency Date within five (5) days of notification (and receipt of all material information concerning the applicable Lease Transaction) shall be deemed approval. With respect to any Lease without Mortgagee’s prior written consentTransaction occurring after the Effective Date: (i) at the Closing, Buyer shall reimburse Seller pursuant to Section 8.6.7 above for leasing commissions and shall furnish to Mortgagee, upon execution, a complete and fully executed copy the cost of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed tenant improvements arising under such Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one Transaction if (1) month as to a Lease Transaction occurring prior to the fifth (5th) day prior to the Contingency Date, such Lease Costs were disclosed to Buyer in advancewriting prior to such fifth (5th) day, and (2) as to a Lease Transaction occurring after the fifth (5th) day prior to the Contingency Date, such Lease Costs were approved or deemed approved by Buyer; and not permit (ii) Buyer shall assume (and indemnify, defend, protect, and hold harmless Seller from any Tenant against) all contractual liabilities to assign its Lease pay any brokerage commissions, pay for tenant improvements or sublet reimburse the premises covered tenant for any tenant improvements which were approved or deemed approved by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant Buyer. The termination of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware tenancy prior to Closing by reason of the tenant’s default and not in violation of any restrictions contained in this Agreement shall not affect the obligations of Buyer under this Agreement in any manner or entitle Buyer to an abatement of or is notified by against the Purchase Price or give rise to any Tenant of a failure other claim on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as Buyer. Buyer’s indemnification obligation set forth and defined in this Section 9.1 shall survive the Bond Lease)Closing.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Purchase and Sale Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Leases. (a) Notwithstanding anything Lender acknowledges that no Leases are in effect at the Property as of the Closing Date. All Leases and all renewals of Leases executed after the date hereof shall (i) provide for economic terms, including rental rates, comparable to existing local market rates for similar properties, (ii) be on commercially reasonable terms, (iii) have a term of not less than three (3) years (unless Lender approves in writing a shorter term), (iv) have a term of not more than ten (10) years, including all extensions and renewals (unless Lender approves in writing a longer term), (v) provide that such Lease is subordinate to the contrary hereinMortgage and the Assignment of Leases and that the Tenant thereunder will attom to Lender and any purchaser at a foreclosure sale, Mortgagor (vi) be to Tenants that are creditworthy, (vii) be written substantially in accordance with the standard form of Lease which shall have been approved by Lender (subject to any commercially reasonable changes made in the course of negotiations with the applicable Tenant), (viii) not be to an Affiliate of Borrower or Guarantor, and (ix) not contain any option to purchase, any right of first refusal to purchase, any right to terminate (except in the event of the destruction or condemnation of substantially all of the Property), any requirement for a non-disturbance or recognition agreement, or any other terms which would materially adversely affect Lender's rights under the Loan Documents. All Major Leases and all renewals, amendments and modifications thereof executed after the date hereof shall be subject to Lender's prior approval. Borrower shall not enter into permit or consent to any assignment or sublease of any Major Lease without Mortgagee’s Lender's prior written consent, and shall furnish approval (other than assignments or subleases expressly permitted under any Major Lease pursuant to Mortgagee, upon execution, a complete and fully executed copy unilateral right of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease the Tenant thereunder not requiring the consent of Mortgagee Borrower). Lender, at Borrower's sole cost and expense, shall execute and deliver its then standard form of subordination, non-disturbance and attomment agreement to Tenants under any future Major Lease approved by Lender upon request, with any information such commercially reasonable changes as may be requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease such Tenants and which are acceptable to be prior or subordinate to this Mortgage, at Mortgagee’s optionLender.
(b) Mortgagor shallBorrower (i) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) shall enforce the terms, at its cost covenants and expense, perform each obligation conditions contained in the Leases upon the part of the Tenants thereunder to be observed or performed by in a commercially reasonable manner, provided, however, Borrower shall not terminate or accept a surrender of a Lease without Lender's prior approval; (iii) shall not collect any of the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for Rents more than one (1) month in advanceadvance (other than security deposits); (iv) shall not execute any assignment of lessor's interest in the Leases or the Rents (except as contemplated by the Loan Documents); and (v) shall not permit alter, modify or change any Tenant Lease so as to assign its Lease change the amount of or sublet payment date for rent, change the premises covered by its Leaseexpiration date, unless required to do so by grant any option for additional space or term, materially reduce the terms thereof and then only if such assignment does not work to relieve obligations of the Tenant or increase the obligations of any liability for performance the lessor. Upon request, Borrower shall furnish Lender with executed copies of its obligations thereunderall Leases. Borrower shall promptly send copies to Lender of all written notices of material default which Borrower shall receive under the Leases.
(c) If All security deposits of Tenants, whether held in cash or any Tenant other form, shall default be held in compliance with all Legal Requirements, shall not be commingled with any other funds of Borrower and, if cash, shall be deposited by Borrower at a separately designated account under its LeaseBorrower's control at the Clearing Bank. After the commencement of a Sweep Event Period, Mortgagor Borrower shall, upon Lender's request, if permitted by applicable Legal Requirements, cause all such security deposits (and any interest theretofore earned thereon) to be transferred into the Cash Management Account (which shall then be held by Cash Management Bank in a separate Account), which shall be held by Cash Management Bank subject to the terms of the Leases. Any bond or other instrument which Borrower is permitted to hold in lieu of cash security deposits under any applicable Legal Requirements (i) shall be maintained in full force and effect in the ordinary course full amount of businesssuch deposits unless replaced by cash deposits as herein above described, exercise sound business judgment (ii) shall be issued by an institution reasonably satisfactory to Lender, (iii) shall, if permitted pursuant to any Legal Requirements, name Lender as payee or mortgagee thereunder (or at Lender's option, be fully assignable to Lender), and (iv) shall in all respects comply with respect any applicable Legal Requirements and otherwise be satisfactory to such defaultLender. Borrower shall, but may not discountupon request, compromiseprovide Lender with evidence satisfactory to Lender of Borrower's compliance with the foregoing.
(d) Borrower shall have the right, forgive without the consent or waive claims or discharge the Tenant from its obligations under the Lease or approval of Lender, to terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease that is not a Major Lease so long as such termination or if Mortgagee becomes aware of or surrender is notified (i) by any Tenant reason of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, tenant default and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%ii) in excess of a commercially reasonable manner to preserve and protect the one month LIBOR Rate (as set forth and defined in the Bond Lease)Property.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (a) Notwithstanding anything Borrower shall not, without the express written consent of Lender (not to the contrary hereinbe unreasonably withheld, Mortgagor shall not conditioned or delayed except as to clause (ii) below with respect to which Lender may withhold consent in its sole discretion): (i) enter into any Lease without Mortgageeunless the Lease complies with the Leasing Guidelines, or (ii) except as may be required by law or expressly permitted under either a Lease existing on the date hereof, or any new Lease otherwise approved by Lender in writing, cancel or terminate any Major Lease or accept a surrender of any Major Lease (except in the case of a default) unless Borrower has entered into a new Lease or new Leases (or an amendment or amendments of another Lease or other Leases) covering all of the premises of the Major Lease being terminated or surrendered, or (iii) enter into any material amendment or reduce rent under any Major Lease, or amend any other Lease in a manner that would cause such Lease to deviate from the Leasing Guidelines, or (iv) unless the original Tenant remains liable under such Major Lease, consent to an assignment of a Tenant’s prior written consentinterest or to a subletting of any Major Lease, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy or (v) accept payment of each advance rents (excluding security deposits) in an amount in excess of one (1) month’s rent under any Major Lease. Mortgagor The foregoing restrictions shall provide Mortgagee with not be deemed to apply to agreements for specific events (as distinguished from agreements for continuous use and occupancy over a copy period of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s optiontime).
(b) Mortgagor shallBorrower (i) shall observe and perform in all respects the obligations imposed upon the lessor under the Leases; (ii) shall enforce the terms, at its cost covenants and expense, perform each obligation conditions contained in the Leases upon the part of the lessee thereunder to be performed by the landlord under each Lease; not borrow against, pledge observed or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advanceperformed; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease(iii) shall hold all security deposits under all Leases in accordance with Legal Requirements. Within ten (10) Business Days after Lender’s request, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant Borrower shall furnish Lender with executed copies of any liability for performance of its obligations thereunderall Leases.
(c) If any Tenant of the acts described in this Section 4.1.9 which require the written consent of Lender are done without such written consent, at the option of Lender they shall default under its Lease, Mortgagor shall, in the ordinary course be of business, exercise sound business judgment no force or effect with respect to the Lender and shall, following written notice to Borrower and Borrower’s failure to cure such defaultbreach within ten (10) Business Days, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender constitute an Event of the Lease without the prior written consent of MortgageeDefault.
(d) If Mortgagor fails Except as otherwise permitted in Section 2.6, Borrower shall not, without the express written consent of Lender (which may be withheld in Lender’s sole discretion) enter into any purchase options with respect to perform any obligations the Property. For the avoidance of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on doubt, however, the part of Mortgagor to so perform, Mortgagee may, but foregoing shall not be obligated to, without waiving or releasing Mortgagor preclude Borrower from any Obligation, remedy such failure, and Mortgagor agrees entering into a contract to repay upon demand all sums incurred by Mortgagee sell the Property so long as the Loan is repaid in remedying any such failure, together full in connection with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess consummation of the one month LIBOR Rate (as set forth and defined in the Bond Lease)transactions described therein.
(e) For purposes Each Lease affecting the Property shall be absolutely subordinate to the lien of this Mortgagethe Mortgage and shall also contain a provision, reasonably satisfactory to Lender, to the effect that in the event of the judicial or non-judicial foreclosure of the Property, at the election of the acquiring foreclosure purchaser, the following particular Lease shall not be terminated and the Tenant shall attorn to the purchaser, and that if requested to do so, the Tenant shall enter into a new Lease for the balance of the term upon the same terms and conditions. Lender shall, if requested by Borrower in connection with a Tenant’s request for non-disturbance, enter into a subordination, non-disturbance and attornment agreement with any Tenant of commercial space at the Property under a Major Lease which has been approved by Lender, on Lender’s then current form with any Tenant; provided that:
(i) Borrower shall cooperate with Lender in obtaining any necessary information from or regarding Tenant to comply with Legal Requirements (including, without limitation, any Prescribed Laws), (ii) Borrower shall pay Lender’s actual out-of-pocket costs and expenses (including, without limitation, reasonable attorneys’ fees) in connection with such subordination, non-disturbance and attornment agreement, and (iii) any such Tenant shall be required to make representations and warranties corresponding to the representations and warranties in Section 3.1.41 hereof and, if requested by Lender, provide such additional information as may be requested to evidence compliance.
(f) Except for any Operational Documents with respect to which the applicable Manager enters into a subordination, nondisturbance and attornment agreement with Lender on a form reasonably acceptable to Lender, Borrower covenants and agrees that all contracts and agreements relating to the Property requiring the payment of management fees and entered into after the date hereof, and all contracts and agreements relating to the Property and requiring the payment of leasing commissions shall: (i) provide that the obligation will not be enforceable against Lender and (ii) be subordinate to the lien of the Mortgage. Lender will be provided reasonable evidence of Borrower’s compliance with this Section within ten (10) days after written request.
(g) All security deposits with respect to Leases will be transferred to the purchaser at any foreclosure sale.
(h) Any requests for Lender's approval of a Lease or Lease amendment or other matter with respect to which Lender’s approval is required in accordance with this Section 4.1.9 shall be made in writing and shall include (i) a cover letter which states at the top of the letter in bold, capitalized letters the following: “PLEASE TAKE NOTICE. THIS IS A REQUEST FOR APPROVAL OF A LEASE [OR LEASE AMENDMENT] [OR OTHER MATTER/SPECIFY] FOR THE LOAN SECURED BY THE JW MARRIOTT ESSEX HOUSE HOTEL IN NEW YORK, NEW YORK. YOU HAVE TEN (10) DAYS FROM THE DATE YOU RECEIVE THIS LETTER TO REVIEW AND APPROVE THE ACCOMPANYING LEASE [OR LEASE AMENDMENT] [OR OTHER MATTER/SPECIFY]. IF YOU DO NOT RESPOND WITHIN SUCH TEN (10) DAYS, YOU MAY BE DEEMED TO HAVE APPROVED THE LEASE [OR LEASE AMENDMENT] [OR OTHER MATTER/SPECIFY]”, and (x) a copy of the proposed Lease or Lease amendment or documentation evidencing such other matter, along with such other information as may be reasonably necessary to evaluate Borrower’s request. Lender shall approve or disapprove such submitted Lease or Lease amendment within ten (10) days after receipt by Lender of such request and related documentation. If Lender shall fail to disapprove of any such submitted Lease or Lease amendment for which Lender's approval has been requested within such ten (10) day period, Borrower shall submit a second notice in writing to Lender (“Borrower’s Second Notice”) which shall include (y) a cover letter which states at the top of the letter in bold, capitalized letters the following: “PLEASE TAKE NOTICE. THIS IS THE SECOND AND FINAL REQUEST FOR APPROVAL OF A LEASE [OR LEASE AMENDMENT][OR OTHER MATTER/SPECIFY] FOR THE LOAN SECURED BY THE JW MARRIOTT ESSEX HOUSE HOTEL IN NEW YORK, NEW YORK. IF YOU DO NOT RESPOND WITHIN FIVE (5) DAYS FROM THE DATE YOU RECEIVE THIS NOTICE, YOU WILL BE DEEMED TO HAVE APPROVED THE LEASE [OR LEASE AMENDMENT] [OR OTHER MATTER/SPECIFY]”, and (z) a copy of the proposed Lease or Lease amendment, or documentation evidencing such other matter, along with such other information as may be reasonably necessary to evaluate Borrower’s request. If Lender shall fail to disapprove of any such submitted Lease or Lease amendment or other matter for which Lender’s approval has been requested within such five (5) day period, Lender shall be conclusively deemed to have approved such submitted Lease or Lease amendment or other matter, provided, however, any deemed approval of Lender to a submitted Lease or Lease amendment or other matter shall be effective only if such Lease or Lease amendment or agreement reflecting such other matter is signed by both Borrower as landlord and the following meanings:applicable tenant, (or, if such other matter is not the subject of such an agreement, such other matter is effected) within thirty (30) days of the date of the Borrower’s Second Notice and such Lease or Lease amendment is made, or such other matter is effected, on terms that in all material respects are the same as were contained in the Lease or Lease amendment or documentation regarding such other matter submitted with Borrower’s Second Notice. Any deemed approval of Lender to a submitted Lease or Lease amendment or other matter shall not constitute Lender’s consent to any provision of such submitted Lease or Lease amendment or agreement reflecting such other matter and such deemed approval shall not obligate Lender to take any further action relating to such Lease or Lease amendment or other matter, including but not limited to issuing a subordination, nondisturbance and attornment agreement.
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Leases. Borrower shall only execute Leases on the form of tenant lease approved by Lender (athe “Commercial Form Lease”) Notwithstanding anything as part of the Closing, subject to the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and commercially reasonable negotiations with any information requested by Mortgagee regarding the proposed Tenant thereundersuch Tenant. Mortgagee may declare each Lease to be prior or subordinate to this MortgageBorrower shall not, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails Lender, in Lender’s sole reasonable discretion, materially amend, modify or alter the Commercial Form Lease. Any change to perform the Commercial Form Lease affecting the tenant’s insurance, the tenant’s obligation to reimburse the landlord for the cost of taxes, insurance or operating expenses, the use of insurance or condemnation proceeds, granting any obligations right with respect to the purchase of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor the Property (including without limitation, any right of first offer or refusal or purchase option), or reducing Lender’s rights shall be deemed to so performbe “material” and may not be made without Lender’s consent. If any new Lease is on a form that includes automatic subordination and attornment language consistent with the Commercial Form Lease, Mortgagee may, but then Lender shall not be obligated torequire a subordination, without waiving non-disturbance and attornment agreement. If Borrower requests Lender to review and/or execute any non-disturbance and attornment agreements with future tenants of the Property (as applicable), Lender will only enter into such agreements which are on Lender’s then-current standard form of such agreement or releasing Mortgagor from form approved by Lender in connection with any Obligationcommercial lease now or hereafter affecting the whole or any part of the Property. Any other form or changes to Lender’s then-current standard form submitted by Borrower or tenant are subject to Lender’s review, remedy such failurein Lender’s sole discretion, and Mortgagor agrees shall be subject to repay upon demand payment by Borrower of Lender’s reasonable legal fees (internal or external counsel) for such review. All Leases must (i) be at competitive market rents and (ii) contain a written provision acceptable to Lender whereby all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess rights of the one month LIBOR Rate (as set forth and defined tenant under the Lease are subordinated to the Liens granted in the Bond Lease)Loan Documents or may be made superior to the lien of the Security Instrument at Lender’s option. Borrower shall not enter into or modify any Major Tenant Lease without obtaining Lender’s prior written consent.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Leases. (a) Notwithstanding anything to the contrary herein, Mortgagor Borrower shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring or a proposed renewal, extension (other than a renewal or extension that is being unilaterally exercised by a tenant pursuant to the consent terms of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its an existing Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may which Lender shall not discount, compromise, forgive have any consent rights) or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender modification of the an existing Lease without the prior written consent of Mortgagee.
Lender, which consent shall not, so long as no Event of Default is continuing, be unreasonably withheld or delayed. Prior to seeking Lender’s consent to any Lease, Borrower shall deliver to Lender a copy of such proposed lease (da “Proposed Lease”) and, if such Proposed Lease is based on the standard form of Lease approved by Lender, blacklined to show changes from the standard form of Lease approved by Lender and then being used by Borrower. Lender shall approve or disapprove each Proposed Lease or proposed renewal, extension or modification of an existing Lease for which Lender’s approval is required under this Agreement within 10 Business Days of the submission by Borrower to Lender of a written request for such approval, accompanied by a final copy of the Proposed Lease or proposed renewal, extension or modification of an existing Lease. If Mortgagor requested by Borrower, Lender will grant conditional approvals of Proposed Leases or proposed renewals, extensions or modifications of existing Leases at any stage of the leasing process, from initial “term sheet” through negotiated lease drafts, provided that Lender shall retain the right to disapprove any such Proposed Lease or proposed renewal, extension or modification of an existing Lease, if subsequent to any preliminary approval material changes are made to the terms previously approved by Lender, or additional material terms are added that had not previously been considered and approved by Lender in connection with such Proposed Lease or proposed renewal, extension or modification of an existing Lease. Provided that no Event of Default is continuing, if Borrower provides Lender with a written request for approval (which written request shall be marked in bold lettering with the following: “LENDER’S RESPONSE IS REQUIRED WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF SECTION 5.10.2 OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER” and the envelope containing the request must be marked “PRIORITY”, and explicitly state that failure by Lender to approve or disapprove within 10 Business Days will constitute a deemed approval) and Lender fails to perform any obligations reject the request in writing delivered to Borrower within 10 Business Days after receipt by Lender of Mortgagor under any the request, the Proposed Lease or if Mortgagee becomes aware proposed renewal, extension or modification of an existing Lease shall be deemed approved by Lender, and Borrower shall be entitled to enter into such Proposed Lease or proposed renewal, extension or modification of an existing Lease. Notwithstanding anything to the contrary in this Section 5.10, unless expressly agreed to in writing by Lender or unless Lender’s approval of the Capital Expense budget described in Section 5.10.3 hereof is notified given, any approval or deemed approval by any Tenant Lender of a failure on the part proposed Lease or proposed renewal, extension or modification of Mortgagor an existing Lease pursuant to so perform, Mortgagee may, but this Section 5.10 shall not be obligated to, without waiving deemed to constitute (in and of itself) an approval or releasing Mortgagor from deemed approval by Lender of any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee Approved Leasing Expenses in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)connection therewith.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Loan Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Leases. (a) Notwithstanding anything Borrower shall deliver to Lender quarterly leasing reports and monthly rent rolls of all executed leases covering any part of the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and Premises. Borrower shall furnish to MortgageeLender for its approval as soon as possible after the date of this Agreement a lease schedule (hereinafter called the “Lease Schedule”) showing proposed rent (including escalations), upon execution, a complete term and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information other material provisions as requested by Mortgagee regarding Lender, which Borrower intends to incorporate into leases of space within the proposed Tenant thereunderPremises. Mortgagee may declare each Any modified Lease Schedule intended to be used by Borrower shall be similarly furnished to Lender. Prior to the execution of any lease covering the Premises or any part thereof, Borrower will obtain the prior written approval of the Lender of the form, rate and term of such lease; provided, however, that the prior written approval of Lender shall not be required for leases that (i) cover 3,000 or subordinate less square feet of rentable area, (ii) provide for rent of not less than (x) with respect to this Mortgageretail leases, at Mortgagee$25 per square foot on a triple net basis, and (y) with respect to office leases, $23 per square foot plus electricity, (iii) provide for tenant improvements of not more than $20 per square foot for retail leases, or $22 per square foot for office leases and (iv) are on arm’s optionlength market terms and conditions with third parties unrelated to Borrower or Guarantor, and on substantially the lease form for the Premises approved by Lender.
(b) Mortgagor shallBorrower has delivered true, at its cost correct and expense, perform each obligation complete copies of all leases affecting any portion of the Premises as of the date of this Agreement and Borrower shall promptly deliver to be performed by Lender copies of all leases hereafter executed covering any part of the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunderPremises.
(c) If any Tenant Borrower shall default under its Leaseobtain and deliver to Lender subordination, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept non-disturbance and attornment agreements (each a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%“SNDA”) in excess form acceptable to Lender for each lease covering 3,000 square feet or more of the one month LIBOR Rate (as set forth and defined in the Bond Lease)rentable area.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract
Sources: Construction Loan Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Leases. (a) Notwithstanding anything Perform in a timely manner all of Seller's obligations under the Leases, consistent with Seller's ordinary business practices in effect as of the date hereof. Subsequent to the contrary hereinexpiration of the Inspection Period, Mortgagor Seller shall not enter into any Lease new Leases without Mortgagee’s Buyer's prior written consent, and which consent shall furnish to Mortgageenot be unreasonably withheld or delayed, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested except for new Leases entered into by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one (1) month in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, Seller in the ordinary course of businessbusiness for terms not exceeding one year and at rentals at least equal to those currently being charged (and to promptly deliver to Buyer copies of any such new Leases). In addition, exercise sound business judgment with respect to such default, but may Seller shall not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease modify or terminate or accept a surrender any of the Lease Leases without the Buyer's prior written consent, which consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated tounreasonably withheld or delayed. If Seller desires to enter into a new Lease subsequent to the expiration of the Inspection Period, without waiving or releasing Mortgagor from any Obligation, remedy such failure, which Lease requires the consent of Buyer thereto as provided in this Section 15.1 Seller shall deliver written notice to Buyer requesting Buyer's approval thereof and Mortgagor providing therewith the most current draft of the proposed new Lease. Seller also agrees to repay upon demand all sums incurred by Mortgagee in remedying provide any such failure, together with interest thereon from other information concerning the date incurred at an annual rate equal new Lease and proposed tenant which Buyer reasonably requests. Buyer shall respond to nine and one half percent (9.5%) in excess Seller's request for approval of the one month LIBOR Rate new Lease transaction within two (as set forth and defined in 2) business days after the Bond Lease).
delivery of Seller's notice. Unless Buyer shall deliver written notice to Seller disapproving the proposed new Lease within such two (e2) For day period, Buyer shall be deemed to have approved such Lease transaction for all purposes of this Mortgage, Agreement and Seller may proceed to consummate such new Lease in the following terms shall have the following meanings:form most recently approved (or deemed approved) by Buyer.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Boettcher Western Properties Iii LTD)
Leases. (a) Notwithstanding anything to the contrary herein, Mortgagor shall not enter into any Lease without Mortgagee’s prior written consent, and shall furnish to Mortgagee, upon execution, a complete and fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder. Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord Landlord under each Lease; not borrow against, pledge or further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than one thirty (130) month days in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of MortgageeLease.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligationobligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (9.5%) in excess of the one month LIBOR Rate (as set forth and defined in the Bond Lease)incurred.
(e) For purposes of this Mortgage, the following terms shall have the following meanings:
Appears in 1 contract