Leases. (a) All Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 2 contracts
Sources: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Leases. (aA) All Leases entered into by Borrowers shall provide for rental rates comparable to then-existing local market rates and terms and conditions commercially reasonable and consistent with then-prevailing local market terms and conditions for similar type properties, and in no event shall any Borrower, absent Lender’s prior written consent, enter into any Leases (i) other rental arrangements than residential apartment leases having lease terms not in excess of two (2) years, or (ii) with Affiliates of any Borrower Party. Borrowers shall pay to Lender upon demand all costs and expenses of Lender, including reasonable attorneys’ fees, incurred in all respects connection with Lender’s review of any Lease.
(B) All Leases entered into after the Closing Date with new tenants (i.e. not renewals of existing tenants as of the Closing Date) shall be written on Borrowers’ standard lease form currently in use which has been approved by Lender and shall be on a standard or such other form of Lease form previously reasonably approved by Lender with no material modifications (except as approved in writing by Lender). Such Lease ; provided that notwithstanding the foregoing, the Borrowers may modify any standard lease form shall provide that (i) the Lease is subordinate without such approval to the Mortgage, (ii) the tenant shall attorn extent necessary to Lender, provided Lender has agreed not conform such form to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lenderapplicable Legal Requirements. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval Borrowers shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on materially change the standard Lease lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; , which consent shall not be unreasonably withheld or delayed, or except as necessary to comply with applicable Legal Requirements.
(C) Each Borrower shall comply with, observe and perform all such Borrower’s obligations as landlord under all Leases of such Borrower’s Applicable Individual Property and shall not do or permit to be done anything to materially impair the value of the Leases as security for the Obligations. Borrowers shall promptly send Lender copies of any notices of default received from the tenant under any Lease does not conflict with any restrictive covenant affecting and shall enforce all of the Property or any other Lease for space material terms, covenants and conditions contained in the Property; (D) Leases upon the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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) lessees thereunder to be observed or performed and shall not further assign effect a termination or encumber any Lease; (vii) shall not, except with Lender’s prior written consent, cancel diminution of the obligations of tenants under leases only in a manner that a prudent owner of a similar property to the Properties would enforce such terms covenants and conditions or accept surrender effect such termination or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into diminution in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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.
(cD) Within thirty Borrowers shall not collect any of the Rents under Leases more than one (301) days month in advance (not including Security Deposits).
(E) Borrowers shall make all Leases available to Lender or, at Lender’s request upon the occurrence and during the continuance of an Event of Default, shall furnish Lender with executed copies of all Leases hereafter made (to the extent not theretofore provided to Lender). Each Lease at an Individual Property shall specifically provide that such Lease is subordinate to the Mortgage encumbering such Individual Property; and that in no event shall Lender, as holder of such Mortgage or as successor landlord, be liable to the tenant for any act or omission of any prior landlord or for any liability or obligation of any prior landlord occurring prior to the date that Lender or any subsequent owner acquire title to such Individual Property. Each Lease entered into after the Closing Datedate hereof, Borrower shall deliver specifically provide that the tenant attorns to Lender Lender, such attornment to be effective upon Lender’s acquisition of title to such Individual Property; that the original tenant agrees to execute such further evidences of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit attornment as Lender may from time to time reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from request; and that the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms attornment of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender tenant shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall not be deposited in the Clearing Accountterminated by foreclosure.
Appears in 2 contracts
Sources: Loan and Security Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.), Loan and Security Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Leases. Any Leases in excess of three thousand (a3,000) All Leases and other rental arrangements shall in all respects be approved by Lender and square feet (each such Lease a “Material Lease”) written after the date hereof shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn subject to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender approval, which approval shall not be voidable by Lenderunreasonably withheld, conditioned or delayed. Within ten (10) days after Lender’s Upon request, Borrower shall furnish to Lender a statement of all tenant security deposits, and with executed copies of all Leases entered into after the date hereof. All renewals of Leases and all proposed Leases shall provide for rental rates comparable to existing local market rates. All proposed Leases shall be on commercially reasonable terms and shall not previously delivered contain any terms which would materially adversely affect Lender’s rights under the Loan Documents. Prior to Lenderentering into any Lease or any modification thereof, certified Borrower shall cause Owner to obtain or cause the tenant to obtain all licenses, permits, approvals and consents required as a condition to such Lease and/or to tenant’s operation thereunder, including without limitation any and all consents and approvals required under any applicable Franchise Agreement, Ground Lease, Operations Agreement and/or License. All Leases executed after the date hereof shall provide that they are subordinate to the Mortgage encumbering the applicable Individual Property in favor of Mortgage Lender and that the lessee agrees to attorn to Mortgage Lender or any purchaser at a sale by foreclosure or power of sale. Borrower as being true shall, and correct. Notwithstanding anything shall cause the related Manager to, (i) observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) enforce (if and to the extent commercially reasonable to do so under the circumstances) the terms, covenants and conditions contained in the Loan Documents, Lender’s approval shall not Leases upon the part of the lessee thereunder to be required for future Leases observed or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for performed in a commercially reasonable changes agreed manner or terminate or amend such lease, in either case in a manner not to impair materially the value of the Individual Property involved except that no termination by Owner or acceptance of surrender by a tenant of any Material Lease shall be permitted unless by reason of a tenant default and then only in a commercially reasonable manner to preserve and protect the ordinary course of Borrower’s business, Individual Property; provided, however, there that no such termination or surrender of any Material Lease will be permitted without the written consent of Lender; (iii) not collect any of the Rents relating to the Leases more than one (1) month in advance (other than security deposits); (iv) not execute any other assignment of lessor’s interest in the Leases or the Rents or any other Gross Revenues (except as contemplated by the Loan Documents and the Mortgage Loan Documents); (v) not alter, modify or change the terms of the Leases in a manner inconsistent with the provisions of the Loan Documents; and (vi) execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall be no material modification from time to time reasonably require. Notwithstanding anything to the contrary contained herein, Borrower shall not permit Owner to enter into a lease of all or substantially all of any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord Individual Property without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases approved by Lender promptly upon request with such commercially reasonable changes as consent 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 withheld 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications sole and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 Lenderabsolute discretion.
(c) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (W2007 Grace Acquisition I Inc), Mezzanine Loan Agreement (American Realty Capital Hospitality Trust, Inc.)
Leases. (a) All Beneficiary shall approve any Material Lease executed after the date of this Deed of Trust as to form, content and financial strength of the tenant. At any time, within thirty (30) days after Notice from Beneficiary, Grantor will deliver to Beneficiary a written description in such reasonable detail as Beneficiary may request of all of the Leases, including, without limitation, the names of all tenants, the terms of all Leases and other rental arrangements the Rents payable under all Leases. If any Material Lease provides for the giving by the tenant of certificates with respect to the status of such Lease, Grantor shall in exercise its right to require such certificate within ten (10) days after any request by Beneficiary. Following the occurrence of an Event of Default and notice from Beneficiary, Grantor will notify all respects be approved by Lender tenants under existing Leases, and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide agrees to notify all tenants under future Leases, that (i) the Lease is subordinate Grantor collects and receives all Rents pursuant to the Mortgagelicense granted to it hereunder, and (ii) upon Notice from Beneficiary that such license has been revoked, the tenant tenants shall attorn pay all unpaid Rent directly to LenderBeneficiary.
(b) So long as no Event of Default has occurred, Grantor shall have a license (which license shall terminate automatically and without Notice upon the occurrence of an Event of Default) to collect upon, but not prior to accrual, the Rents under the Leases and, where applicable, subleases, such Rents to be held in trust for Beneficiary. Each month, provided Lender no Event of Default has agreed occurred, Grantor may retain such Rents and proceeds from Resident Agreements as were collected that month and held in trust for Beneficiary. Upon revocation of such license and following notification to the tenants under the Leases by Beneficiary or the Trustees that Rents are to be paid to Beneficiary, all Rents shall be paid directly to Beneficiary and not through Grantor. A demand by Beneficiary on any tenant for the payment of Rent shall be sufficient to disturb tenant’s occupancy warrant such tenant to make future payments of Rent to Beneficiary without the necessity of further consent by Grantor.
(c) Grantor, at its leasesole cost and expense, and (iii) that any cancellation, surrenderwill use its best efforts to enforce or secure, or amendment cause to be enforced or secured, the performance of each and every obligation and undertaking of the respective tenants under any Leases and will appear in and defend, at its sole cost and expense, any action or proceeding arising under, or in any manner connected with, such Lease Leases.
(d) Grantor will not assign the whole or any part of the Leases or Rents without the prior written consent of Lender Beneficiary, and any assignment without such consent shall be voidable null and void.
(e) Grantor will promptly perform all of its obligations under any Leases. Grantor will not, without the prior written consent of Beneficiary, (i) cancel, terminate, accept a surrender of, reduce the payment of rent under any Material Leases, or accept any prepayment of rent for more than one (1) month in advance under, any Lease or Resident Agreements, (ii) modify, amend or substitute any Material Leases, or (iii) permit a Lien on the Property superior to any Lease, other than this Deed of Trust. Beneficiary acknowledges that the community fee paid in connection with a Resident Agreement is not a prepayment of rent.
(f) If any Leases are subordinate (either by Lender. Within ten their date, their express terms, or by subsequent agreement of the tenant) to this Deed of Trust, such Leases shall be subject to the condition (10and this Deed of Trust so authorizes) that, in the event of any sale of the Property pursuant to the provisions of Section 7.2 (Foreclosure), the Leases shall, at the sole option of Beneficiary or any purchaser at such sale, either (i) continue in full force and effect as set forth in the required advertisement of sale, and the tenant or tenants thereunder will, upon request, attorn to and acknowledge in writing the purchaser or purchasers at such sale or sales as landlord thereunder, or (ii) upon notice to such effect from Beneficiary, the Trustees or any purchaser or purchasers, terminate within ninety (90) days after Lender’s requestfrom the date of sale. As to any Lease, Borrower neither Beneficiary nor any purchaser or purchasers at foreclosure shall furnish be bound by any payment of rent for more than one (1) month in advance or by any amendment or modification of the Lease made without the prior written consent of Beneficiary or, subsequent to Lender a statement foreclosure sale, such purchaser or purchasers.
(g) Neither the Trustees nor Beneficiary shall be obligated to perform or discharge any obligation of all tenant security depositsGrantor under any Lease. This assignment of the Leases in no manner places on Beneficiary or the Trustees any responsibility for (i) the control, care, management or repair of the Property, (ii) the carrying out of any of the terms and conditions of the Leases, (iii) any waste committed on the Property, or (iv) any dangerous or defective condition on the Property (whether known or unknown). Grantor agrees to indemnify the Trustees and Beneficiary for, and copies of forever hold them harmless from, any and all Leases not previously delivered to LenderClaims arising out of, certified by Borrower as being true and correct. Notwithstanding anything contained or in the Loan Documentsconnection with, Lender’s approval shall not be required for future any Leases or Lease extensions or modifications if the following conditions are satisfied: any assignment thereof.
(Ah) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes Unless otherwise agreed to in by Beneficiary, each Lease shall (i) be at market rents, (ii) be subordinate to the ordinary course lien of Borrower’s businessthis Deed of Trust, provided, however, there shall be no material modification (iii) contain attornment language requiring each tenant to attorn to any provisions with regard subsequent purchaser of the Property, (iv) not contain non-disturbance language entitling such tenant to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting remain at the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) sale of the Lease shall provide for rental rates and landlord concessions comparable Property except as specifically agreed to existing local market rates, shall be an arms length transaction and by Beneficiary in no event be connection with an Affiliate of Borrowerspecified Leases, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 all respects acceptable to Lender.
(b) Borrower (i) shall perform Beneficiary and its counsel. Approved Material Leases may not be amended, modified or terminated without 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 consent of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 LenderBeneficiary.
(c) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 2 contracts
Sources: Deed of Trust, Assignment, Security Agreement and Fixture Filing (Sunrise Senior Living Inc), Deed of Trust, Assignment, Security Agreement and Fixture Filing (Sunrise Senior Living Inc)
Leases. (a) All Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) Trustor shall provide Beneficiary with true, correct and complete copies of all material Leases, together with such other information relating to the Leases, as the Lenders shall reasonably request. Except as otherwise permitted under the Credit Agreement, Trustor shall not accept prepayments of rent for any period in excess of three (3) months and shall perform all covenants of the lessor under all Leases affecting the Trust Estate. Leases, as used herein, includes any extensions or renewals thereof and any amendments thereto. Trustor shall perform and carry out all of the provisions of the Leases to be performed by Trustor and shall appear in and defend any action in which the validity of any Lease is subordinate at issue and commence and maintain any action or proceeding necessary to establish or maintain the Mortgage, validity of any lease and to enforce the provisions thereof,
(ii) If a leasehold estate constitutes a portion of the tenant shall attorn to LenderTrust Estate, provided Lender has agreed then, except as otherwise permitted under the Credit Agreement, Trustor agrees not to disturb tenant’s occupancy of its leaseamend, and (iii) that change, terminate or modify such leasehold estate or any cancellation, surrender, or amendment of such Lease interest therein without the prior written consent of Lender the Lenders. Consent to one amendment, change, agreement or modification shall not be voidable deemed to be a waiver of the right to require consent to other, future or successive amendments, changes, agreements or modifications. Trustor agrees to perform all obligations and agreements under said leasehold and shall not take any action or omit to take any action which would affect or permit the termination of said leasehold. Trustor agrees to promptly notify Beneficiary’ in writing with respect to any default or alleged default by Lender. Within ten (10) days after Lender’s request, Borrower shall furnish any party thereto and to Lender a statement of all tenant security deposits, and deliver to Beneficiary copies of all Leases not previously delivered to Lendernotices, certified demands, complaints or other communications received or given by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses Trustor with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension default or modification, a Major Lease; (E) alleged default. Beneficiary shall have the Lease shall provide for rental rates option to cure any such default and landlord concessions comparable to existing local market rates, perform any or all of Trustor’s obligations thereunder. All sums expended by Beneficiary in curing any such default shall be an arms length transaction and in no event be with an Affiliate of Borrower, secured hereby and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease immediately due and payable without demand or notice and shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right bear interest from date of renewal, extension or expansion by tenant expenditure at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 LenderAgreed Rate.
(biii) Borrower (i) shall perform Subject to the obligations which Borrower is required to perform Credit Agreement and except as otherwise permitted 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 tenantCredit Agreement, 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 each Lease of any part portion of the Property; (vi) Trust Estate shall not further assign or encumber any Lease; (vii) be absolutely subordinate to the lien of this Deed of Trust, but shall not, except with Lender’s prior written consent, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in contain a provision satisfactory to the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease)Lenders, and (ix) in any event, each tenant thereunder, by virtue of executing a Lease termination or cancellation fees shall be paid to Lender and held in covering 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each Premises or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s requestportion thereof, retain possession of each or any Tenant Letter of Credit, provided, howeverhereby agrees, that in the case event of this clause (b) Lender the exercise of the private power of sale or a judicial foreclosure hereunder, such Lease, at the option of the purchaser at such sale, shall take all steps reasonably necessary not be terminated and the tenant thereunder shall attorn to assist Borrower in connection with such purchaser and, if requested to do so, shall enter into a draw new Lease for the balance of the term of such Lease then remaining upon the same in accordance terms and conditions. Each such Lease shall, at the request of the Lenders, be assigned to Beneficiary upon the Lender’s approved form, and each, such assignment shall be recorded and acknowledged by the tenant thereunder. Concurrently with the terms execution of any and all Leases executed after the applicable Lease. Any proceeds date hereof, Trustor shall cause the tenants thereunder to execute a subordination, non-disturbance and attornment agreement in favor of Beneficiary in form and substance satisfactory to the Lenders and immediately thereafter deliver such a draw shall be deposited in the Clearing Accountagreement to Beneficiary.
Appears in 2 contracts
Sources: Deed of Trust (Cadiz Inc), Deed of Trust (Cadiz Inc)
Leases. (a) All Leases to which Borrower is a party executed after the date hereof and other rental arrangements all renewals thereof shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the 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 Mortgage, (ii) Mortgage encumbering the tenant shall applicable Individual Property and that the lessee will attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iiiiv) that not contain any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. Within ten (10) days after terms which would materially adversely affect 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. Notwithstanding anything contained in rights under the Loan Documents, .
(b) All Major Leases to which Borrower is a party executed after the date hereof and all renewals thereof shall be subject to Lender’s prior approval (other than renewals at the option of the tenant at rents specified in the applicable Major Lease). All Leases to which Borrower is a party and all renewals, amendments and modifications thereof executed after the Effective Maturity Date shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modificationssubject to Lender’s prior approval, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord Leases that have been assigned to the Hotel Lessees.
(c) Borrower shall not accept a surrender of any Major Lease to which Borrower is a party without Lender’s prior written consent; approval (C) unless the Lease does lessee has the unilateral right to terminate such Major Lease). Borrower shall not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, terminate a Major Lease; Lease to which Borrower is a party without Lender’s prior approval (E) unless the other party thereto is in material default and the termination of such Major Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall would be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial term shall not exceed fifteen (15) yearsreasonable). Lender shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement in the form annexed hereto as Schedule IV to Tenants under future commercial Major Leases 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.
(bd) Borrower (i) shall observe and perform in all material respects the obligations imposed upon the lessor under the Leases to which Borrower is required to perform under the Leasesa party in a commercially reasonable manner; (ii) shall enforce the obligations material terms, covenants and conditions contained in the Leases to which Borrower is a party upon the part of the lessee thereunder to be observed or performed by the tenantsin a commercially reasonable manner; (iii) shall promptly furnish to Lender not collect any notice of default or termination received by Borrower from any tenant, and any notice of default or termination given by Borrower to any tenantthe rents more than one (1) month in advance (other than security deposits); (iv) shall not collect execute any rents for more than thirty assignment of lessor’s interest in the Leases to which Borrower is a party or the Rents thereunder (30) days in advance of except as contemplated by the time when the same shall become due, except for bona fide security deposits not in excess of an amount equal to two months rentLoan Documents); and (v) shall not enter into alter, modify or change any ground Major Lease to which Borrower is a party so as to decrease the amount of or master Lease of payment date for rent, change the expiration date, grant any part option for additional space or term, materially reduce the obligations of the Property; (vi) shall not further assign lessee or encumber any Lease; (vii) shall not, except with increase the obligations of lessor without Lender’s prior written consentapproval, cancel which approval shall not be unreasonably withheld. Except as specifically provided in clause (v) above, Borrower shall have the right to alter, modify or accept surrender or termination of change any Lease; (viii) shall not, except with Major Lease without Lender’s prior written consentapproval.
(e) Upon request, modify or amend any Borrower shall furnish Lender with executed copies of all Leases.
(f) The Marquis Borrower shall have the right to assign the Marquis Lease (except for minor modifications and amendments entered into in to the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms Hotel Lessee of the Lease), and (ix) any Lease termination or cancellation fees shall be paid to Lender and held in Marriott Marquis without 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 consent of Lender.
(c) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 2 contracts
Sources: Loan Agreement (Host Marriott L P), Loan Agreement (Host Marriott Corp/)
Leases. (a) All Leases Borrower covenants and agrees that, from the date hereof and until payment in full of the Debt, Borrower shall, or shall cause Owner to, comply with the terms and provisions of Section 7.02(a) through (c) of the Mortgage as provided in Section 2.14 hereof, and, to the extent such term, covenants and conditions require any consents, approvals or waivers by Mortgage Lender, Lender shall have the same rights to consent, approve or waive.
(b) Subject to the rights of Mortgage Lender in respect of the Rents under the Mortgage Loan Documents at any time that (i) payments are not being made to the Central Account, or (ii) following repayment of the Mortgage Loan, then Lender shall have the immediate right to notify the bank in which the Collection Account is located to make payments directly to the Lockbox Account. Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, security and other rental arrangements refundable deposits of tenants, whether held in cash or any other form, shall, after and during the continuance of an Event of Default, be turned over to Lender (together with any undisbursed interest earned thereon) upon Lender’s request therefor to be held by Lender subject to the terms of the Leases. Any letter of credit or other instrument which Borrower or Owner holds in lieu of cash security deposit shall be maintained in full force and effect in the full amount of such deposits unless replaced by cash deposits as herein-above described and shall in all respects comply with any applicable Legal Requirements and otherwise be approved by Lender and shall be on a standard Lease form previously approved by satisfactory to Lender. Borrower shall, upon request, provide Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. Within ten (10) days after Lender’s request, Borrower shall furnish evidence satisfactory 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without LenderOwner’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together compliance with the initial 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 commercial Major Leases 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 Lenderforegoing.
(bc) Borrower (i) shall cause Owner or Operating Tenant to observe and perform the all of its material obligations which Borrower is required to perform under the Leases pursuant to applicable Legal Requirements and shall not do or permit to be done anything to impair the value of the Major Space Leases; (ii) shall enforce cause Owner to promptly send copies to Lender of all notices of material default which Owner shall receive under the obligations to be performed by the tenantsMajor Space Leases; (iii) shall promptly furnish shall, consistent with the Approved Manager Standard, enforce all of the terms, covenants and conditions contained in the Leases to Lender any notice of default be observed or termination received by Borrower from any tenant, and any notice of default or termination given by Borrower to any tenantperformed; (iv) shall not permit Owner to collect any rents for of the Rents under the Major Space Leases more than thirty one (301) days month in advance of the time when the same shall become due, (except for bona fide that Owner may collect in advance such security deposits not as are permitted pursuant to applicable Legal Requirements and are commercially reasonable in excess of an amount equal to two months rentthe prevailing market); (v) shall not enter into permit Owner to cancel or terminate any ground Lease or master Lease of any part of the PropertyLeases or accept a surrender thereof in any manner inconsistent with the Approved Manager Standard; (vi) shall not further assign permit Owner to alter, modify or encumber change the terms of any Leaseguaranty of any Major Space Lease or cancel or terminate any such guaranty in a manner inconsistent with the Approved Manager Standard; (vii) shall notcause Owner, except in accordance with Lender’s prior written consentthe Approved Manager Standard, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially make all reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same seek lessees for space as it becomes vacant and enter into Leases in accordance with the terms hereof; and (viii) shall not permit Owner to materially modify, alter or amend any Major Space Lease or Property Agreement without Lender’s consent, which consent will not be unreasonably withheld or delayed. Borrower shall, and shall cause Owner to, promptly send copies to Lender of all notices of material default which Owner shall receive under the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing AccountLeases.
Appears in 2 contracts
Sources: Loan and Security Agreement (Ashford Hospitality Trust Inc), Loan and Security Agreement (Ashford Hospitality Trust Inc)
Leases. (a) All Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. Within ten (10) days after Upon Lender’s request, Borrower shall furnish to Lender a statement of all tenant security deposits, and with executed copies of all Leases, together with a detailed breakdown of income and cost associated therewith to the extent the same has been prepared by Borrower. All new Leases not previously delivered to Lenderand renewals or amendments of Leases must be entered into on an arms-length basis with Tenants whose identity and creditworthiness, certified by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s businessgood faith judgment, providedis appropriate for tenancy in property of comparable quality, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall must provide for rental rates and landlord concessions comparable other economic terms which, in Borrower’s good faith judgment, taken as a whole, are at least equivalent to then-existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrowerbased on the applicable market, and shall be established pursuant must contain terms and conditions that are commercially reasonable (in each case, unless Lender consents to such Lease in its sole discretion). Subject to the Leasing Guidelines attached hereto as Schedule IV; (F) terms of the Lease shall be Encumbered Property Debt Documents, all new Leases must provide that they are subject and subordinate to a tenant which Borrowerany 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 such mortgagee agrees to not disturb such Tenant’s tenancy except in accordance with its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 LenderLease.
(b) All new Leases which are Major Leases, 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 approval prior to the negotiation of a final Lease. Such presentation shall include a summary term sheet of all material terms of the proposed Lease or a draft of the proposed Lease together with any additional information concerning such proposed Lease and the proposed Tenant thereunder as may be reasonably requested by Lender (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”, together with (i) a copy of the proposed Lease or the Lease Term Sheet, (ii) a summary of the economic terms thereof and 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 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 (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 Lender’s reasonable written approval). Borrower shall deliver to Lender a copy of any Lease executed pursuant to a Lease Term Sheet together with an Officer’s Certificate indicating any material deviations from such Lease Term Sheet.
(c) Borrower shall (i) observe and perform all the material obligations which Borrower is required to perform imposed upon the lessor under the Leases; (ii) shall enforce enforce, to the obligations extent commercially reasonable, all of the material terms, covenants and conditions contained in the Leases on the part of the lessee thereunder to be performed observed or performed, short of termination thereof, except that Borrower may terminate any Lease following a material default thereunder by the tenantsrespective Tenant; (iii) shall promptly furnish to Lender not collect any notice of default or termination received by Borrower from any tenant, and any notice of default or termination given by Borrower to any tenantthe 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 and the Encumbered Debt Documents; and (v) not cancel or terminate any guarantee of any of the Major Leases without the prior written consent of Lender. 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 collect be commingled with any rents for more than thirty 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 (30if any) days 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 advance of the time when the same shall become due, except for bona fide security deposits not in excess of an Eligible Account pledged to Lender an amount equal to two months rent; (v) shall not enter into any ground Lease or master Lease of any part the aggregate security deposits of the Property; Tenants (viand any interest theretofore earned on such security deposits and actually received by Borrower) shall which Borrower had 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) any Lease termination or cancellation fees shall be paid returned 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease Tenants or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same applied in accordance with the terms of the applicable Lease. Any proceeds .
(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 draw 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 the form of the SNDA shall be deposited prescribed by the Lease in question, and Lender shall have approved (or been deemed, in accordance with Section 5.7(b) hereof, to 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 Clearing Accountform prescribed by such approved Lease. Notwithstanding the foregoing, in the case of any 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 Lease as approved by Lender. Lender agrees to reasonably negotiate the terms of the SNDA with any Tenant under any Lease, but shall not be required to execute an SNDA that differs in any material respect from the form attached hereto as Exhibit G. All reasonable out-of-pocket attorneys’ fees and disbursements incurred by Lender in connection with such SNDA shall be payable by Borrower within ten Business Days after Lender’s written request therefor, whether or not the SNDA is ultimately executed and/or recorded.
Appears in 2 contracts
Sources: Senior Mezzanine Loan Agreement (Gramercy Capital Corp), Senior Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Leases. (a) 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 other rental arrangements shall 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 all respects be approved by Lender and excess of 4,000 square feet with respect to any Project, shall be on a arms-length transactions. On the Original Date, Borrower has delivered to Lender, and Lender has approved, standard forms of Space Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall for the Projects, which provide that (i) the Lease is they are subordinate to the Mortgage, (ii) Loan and that the tenant shall lessees thereunder will attorn to Lender.
(b) Borrower shall not enter into a proposed Major Space Lease or a proposed renewal, provided Lender has agreed not to disturb tenant’s occupancy extension or modification (affecting monetary terms and/or other terms that are material in nature) of its lease, and (iii) that any cancellation, surrender, or amendment of such an existing Major Space Lease without the prior written consent of Lender which consent shall not, so long as no Event of Default exists, be unreasonably withheld or delayed (it being agreed and acknowledged by Borrower that Lender may consider, in connection with a request for its consent under this subsection (b), inter alia, the funds anticipated to be generated by the Projects and the availability of the same under Sections 5.05 and 5.11 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 voidable 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. Within 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) days Business Days after Lender’s request, the submission by Borrower shall furnish to Lender a statement of all tenant security depositssuch written request for such approval, and copies after which such proposed Major Space Lease shall be deemed to have been approved by Lender. If requested by Borrower, within five (5) Business Days after request therefor, Lender will grant conditional approval of all Leases not previously delivered to Lender, certified by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future proposed Major Space Leases or Lease proposed renewals, extensions or modifications if of existing Major Space Leases based upon the following conditions are satisfied: (A) there exists no Default or Event initial summary of Default; (B) material terms, provided that Lender shall retain the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed right to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after disapprove any such extension proposed Major Space Lease or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of proposed renewal, extension or expansion modification of an existing Major Space Lease, if subsequent to any preliminary approval material changes are made to the terms previously approved by tenant at rental rates which Lender, or additional material terms are below reasonably comparable market rates at the time such Lease is to be executed; added that had not previously been considered and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases approved by Lender promptly upon request in connection with such commercially reasonable proposed Major Space Lease or proposed renewal, extension or modification of an existing Major Space Lease or if 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 as may be 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 TenantsBorrower with respect to a tenant (i) under a proposed Major Space Lease, from time and/or (ii) that is a “national” or “credit” tenant, Lender agrees to timeenter into its standard form of Subordination, Non-disturbance and which Attornment agreement with such tenant, with such revisions to such form as are requested by the proposed tenant and 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 2 contracts
Sources: Loan Agreement (Mack Cali Realty Corp), Loan Agreement (Mack Cali Realty L P)
Leases. (a) All Upon the reasonable request of the Agent, the Borrowers shall furnish the Agent with executed copies of any Major Leases entered into after the Closing Date. The Obligors hereby covenant and agree that, with respect to First Lien Properties and subject to clause (b) below, all new Major Leases and renewals or amendments of Major Leases shall be entered into with Tenants whose identity and creditworthiness are appropriate for tenancy at the applicable Property, shall provide for rental rates and other rental arrangements economic terms which, taken as a whole, are not materially less favorable than then-existing market rates, based on the applicable market, except as otherwise agreed to by the Majority Lenders.
(b) With respect to First Lien Properties, all new Major Leases that do not comply with Section 9.19(a) shall in be subject to the prior written consent of the Majority Lenders (it being understood that all respects other Leases or terminations, renewals and amendments of Leases shall not require the Agent’s prior written consent), which consent shall not be approved by Lender unreasonably withheld, conditioned or delayed. Each Debtor shall have the right to waive or negotiate settlement of defaults (or threatened defaults) under Leases, so long as such waiver or settlement could not reasonably be expected to have a Material Adverse Effect.
(c) Each Obligor shall, and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that cause each other Debtor to (i) observe and perform all material post-petition obligations imposed upon the Lease is subordinate lessor under the Major Leases (other than Major Leases that are rejected pursuant to the MortgageCase), (ii) with respect to First Lien Properties, enforce all material terms, covenants and conditions contained in the tenant shall attorn Major Leases on the part of the lessee thereunder to Lenderbe observed or performed, short of termination thereof (including enforcing the provisions, if any, requiring Tenants to perform all acts necessary to satisfy the requirements of Governmental Authorities and, if applicable, to do such acts as are necessary to maintain their respective certificates of occupancy in full force and effect); provided Lender has agreed not that a Debtor may terminate any Lease, subject to disturb tenant’s occupancy of its leaseSection 9.19(b) above, and following a default thereunder by the respective Tenant, (iii) not collect any of the rents under any Major Lease (exclusive of security deposits) more than one month in advance of the due date thereof, other than in connection with the satisfaction or compromise of Tenant improvements costs, (iv) not execute any assignment of lessor’s interest in the Leases or associated rents other than the assignment of rents and leases contained in the Financing Order and, as applicable, in the documents that create or evidence the Pre-Petition Liens (or any cancellation, surrender, refinancing or amendment extension thereof permitted under this Agreement) and (v) not cancel or terminate any guarantee (except in accordance with the terms thereof) of such Lease any of the Major Leases without the prior written consent of Lender the Majority Lenders (which consent shall not be unreasonably withheld or delayed) unless such cancellation or termination could not reasonably be expected to have a Material Adverse Effect.
(d) At the Borrowers’ written request, the Agent, for and on behalf of the Lenders, shall enter into a subordination, non-disturbance and attornment agreement, in the form (i) in the case of Leases with respect to First Lien Properties, attached hereto as Exhibit F or (ii) in the case of Leases with respect to Negative Pledge Properties, in the form approved by the lender that holds the prior Lien on such Negative Pledge Property, and, in each case with respect to any national Tenant, as such Tenant and the Agent shall reasonably agree. The Agent shall not be required to provide any such subordination, non-disturbance and attornment agreement with respect to First Lien Properties unless it shall receive in exchange an estoppel certificate from the Tenant under the applicable Lease that the Tenant is not aware of any material default by the landlord under the Lease. For avoidance of doubt, the costs and expenses of the Agent in connection with the review of any such subordination, non-disturbance and attornment agreement shall be voidable paid or reimbursable by Lender. Within the Borrowers in accordance with Section 15.6; provided that such fees and expenses shall not exceed $100 per such agreement in the case of agreements set forth in clause (i) which are not negotiated and otherwise $1,000 per agreement.
(e) With respect to any approval by the Majority Lenders of a Major Lease pursuant to Section 9.19(a) or any consent of the Majority Lenders regarding any Major Lease referred to in Section 9.19(b), if no response thereto is received by the General Partner from the Agent within ten (10) days Business Days after Lender’s request, Borrower shall furnish to Lender a statement of all tenant security deposits, and copies of all Leases not previously request for such approval or consent is delivered to Lender, certified by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant writing to the Leasing Guidelines attached hereto Agent, then such approval or consent (as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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(bapplicable) shall be void at deemed to have been given by the election of LenderMajority Lenders.
(c) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 2 contracts
Sources: Senior Secured Debtor in Possession Credit, Security and Guaranty Agreement (General Growth Properties Inc), Senior Secured Debtor in Possession Credit, Security and Guaranty Agreement (General Growth Properties Inc)
Leases. (a) All Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed 5.5.1 Borrower will not to disturb tenant’s occupancy of its lease, and (iii) that enter into any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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 which consent may be granted or withheld in Lender's sole discretion.
5.5.2 Borrower will not modify, amend, consent to the cancellation or surrender of (except to the extent such cancellation or surrender is by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases tenant thereunder pursuant to a pre-existing right to do so under a Lease) or terminate any Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form hereafter approved by Lender with no material modifications, except for commercially reasonable changes agreed to in without the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict consent of Lender, which consent may be granted or withheld in Lender's sole discretion.
5.5.3 Borrower will timely comply with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not all material terms and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in conditions on its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is part to be executed; and (H) the performed under any Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases hereafter approved by Lender promptly upon request with such commercially reasonable changes as may be requested by Tenants, from time and shall neither neglect 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 do nor permit to be performed by done, anything which may cause a termination of any such Lease, other than due to the tenants; (iii) shall promptly furnish to Lender any notice default of default or termination received by the tenant(s). Borrower from any tenant, and any notice of default or termination given by Borrower to any tenant; (iv) shall not collect any rents for rent or other payment under any such Lease more than thirty (30) days one month 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) any Lease termination or cancellation fees shall be paid to Lender and held in the Rollover Funddue date thereof. 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall will use commercially reasonable efforts to obtain from require the Issuing Bank its consent performance of all of the obligations of tenants and other Persons bound by such Leases and to an assignment enforce such Leases.
5.5.4 Any security deposits of each Tenant Letter tenants, whether held in cash or any other form, shall not be commingled with any other funds of Credit Borrower and, if cash, shall be deposited by Borrower at such commercial or savings bank or banks as may be reasonably satisfactory to Lender. Provided no 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 in the full amount of such deposits unless replaced by cash deposits as hereinabove described, shall be issued by an institution reasonably satisfactory to Lender, shall be fully assignable to Lender) and 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 Borrower's compliance with the foregoing. Following the occurrence and during the continuance of any Event of Default existsDefault, upon Lender's demand, Borrower shall turn over to Lender shall the security deposits (aand any interest theretofore earned thereon) at Borrower’s request, promptly return each with respect to all or any Tenant Letter portion of Credit the applicable Property, to Borrower in order be held by Lender subject to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s requestLeases. If Borrower is entitled to retain a security deposit, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of then such a draw amount shall be deposited in transferred by Borrower into the Clearing Account.
Appears in 2 contracts
Sources: Loan Agreement (Golf Ventures Inc), Loan Agreement (Golf Ventures Inc)
Leases. (a) All commercial Leases directly with Mortgage Borrower and other rental arrangements all renewals of commercial Leases executed after the date hereof shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the 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 Mortgage and that, upon the foreclosure of the Mortgage, (ii) sale by power of sale thereunder or deed-in-lieu of foreclosure, the tenant shall Tenant will attorn to the transferee of the Property, (iv) not contain any terms which would materially adversely affect Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, rights under the Loan Documents and (iiiv) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. Within ten (10) days after subject to Lender’s requestprior approval, Borrower shall furnish which approval, with respect to Lender a statement the lease of all tenant security depositsany Commercial Unit or space, and copies of all Leases not previously delivered to Lender, certified by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases unreasonably withheld, conditioned or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there delayed. No Residential Units shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord leased without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, consent in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 Lendersole discretion.
(b) Borrower (i) shall cause Mortgage Borrower to observe and perform the obligations imposed upon the lessor under the Leases to which Borrower is required to perform under the Leasesa party in a commercially reasonable manner; (ii) shall cause Mortgage Borrower to enforce the obligations terms, covenants and conditions contained in the Leases upon the part of the lessee thereunder to be observed or performed by the tenantsin a commercially reasonable manner; provided, however, Borrower shall not permit Mortgage Borrower to terminate or accept a surrender of any Lease without Lender’s prior approval; (iii) shall promptly furnish to Lender not collect any notice of default or termination received by Borrower from any tenant, and any notice of default or termination given by Borrower to any tenantthe Rents more than one (1) month in advance (other than security deposits); (iv) shall not collect permit Mortgage Borrower to execute any rents for more than thirty assignment of lessor’s interest in the Leases or the Rents (30) days in advance of except as contemplated by the time when the same shall become due, except for bona fide security deposits not in excess of an amount equal to two months rentLoan Documents); and (v) shall not enter into any ground Lease or master Lease of any part of the Property; permit Mortgage Borrower to (vi) without Mortgage Lender’s consent which shall not further assign be unreasonably withheld, conditioned or encumber any Lease; (viidelayed) shall not, except with Lender’s prior written consent, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consentalter, modify or amend change any Lease (except so as to change the amount of or payment date for minor modifications and amendments entered into in rent, change the ordinary course of businessexpiration date, consistent with prudent property management practicesgrant any option for additional space or term, not affecting materially reduce the economic terms obligations of the Lease), and (ix) any Lease termination lessee or cancellation fees shall be paid to Lender and held in increase the Rollover Fund. Any action in violation obligations of clauses (v), (vi), (vii), and (viii) of this Section 4.1.9(b) shall be void at the election of Lenderlessor.
(c) Within thirty (30) days after the Closing DateUpon request, Borrower shall deliver to furnish Lender the original with executed copies of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing AccountLeases.
Appears in 2 contracts
Sources: Second Mezzanine Loan Agreement, Second Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Leases. (a) All Leases and other rental arrangements Notwithstanding anything to the contrary herein, Mortgagor shall in all respects be approved by Lender not enter into any Lease without Mortgagee’s prior written consent, and shall be on furnish to Mortgagee, upon execution, a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender)complete and fully executed copy of each Lease. Such Lease form Mortgagor shall provide that 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.
(ib) 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 is subordinate to or terminate or accept a surrender of the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender 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 voidable by Lender. Within ten (10) days after Lender’s requestobligated to, Borrower shall furnish to Lender a statement of all tenant security depositswithout waiving or releasing Mortgagor from any Obligation, remedy such failure, and copies 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 percent (9%) in excess of all Leases not previously delivered to Lender, certified by Borrower the one month LIBOR Rate (as being true set forth and correct. Notwithstanding anything contained defined in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial term shall not exceed fifteen (15) yearsAgreement). Lender shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement in the form annexed hereto as Schedule IV to Tenants under future commercial Major Leases 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.
(be) 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) For purposes of this Section 4.1.9(b) Mortgage, the following terms shall be void at have the election of Lender.
(c) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.following meanings:
Appears in 2 contracts
Sources: Construction Loan Mortgage (Cardinal Ethanol LLC), Construction Loan Mortgage (One Earth Energy LLC)
Leases. (a) All Major Leases and other rental arrangements all renewals of Major Leases executed after the date hereof with respect to the Real Property shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate be subject to the MortgageApproved Annual Budget with respect to such Individual Property, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for economic terms, including rental rates and landlord concessions rates, comparable to existing local market ratesrates for similar properties, shall (iii) be an arms length transaction and on commercially reasonable terms, (iv) have a term of not less than three (3) years (unless Lender approves in no event be with an Affiliate of Borrowerwriting a shorter term), and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (Fv) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for have a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial term shall not exceed fifteen (15) years, including all extensions and renewals (unless Lender approves in writing a longer term), (vi) provide that such Major Lease is subordinate to the related Mortgage and the related Assignment of Leases and that the Tenant thereunder will attorn to Lender and any purchaser at a foreclosure sale, (vii) be to Tenants that are creditworthy, (viii) 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), (ix) not be to an Affiliate of any Borrower Entity or any Mortgagor, and (x) 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 Real Property), any requirement for a non-disturbance or recognition agreement, or any other terms which would 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 or criteria pre-established by Lender in writing. To the extent a Borrower Entity has a consent right under the applicable Major Lease, Borrower shall not, and shall not permit any Borrower Subsidiary to, permit or consent to any assignment or sublease of any Major Lease without Lender’s prior written approval (other than assignments or subleases expressly permitted under any Lease pursuant to a unilateral right of the Tenant thereunder not requiring the consent of any Borrower Entity). Lender Lender, at each Borrower Entity’s sole cost and expense, shall execute and deliver a Subordination Nonits standard form of subordination, non-Disturbance disturbance and Attornment Agreement in the form annexed hereto as Schedule IV attornment agreement to Tenants under any future commercial Major Leases Lease approved by Lender promptly upon request request, with such commercially reasonable changes as may be requested by Tenants, from time to time, such Tenants and which are reasonably acceptable to Lender.
(b) Borrower (i) shall, and shall cause each Borrower Subsidiary to, observe and perform the obligations which Borrower is required to perform imposed upon the lessor under the LeasesLeases in a commercially reasonable manner; (ii) shall, and shall cause each Borrower Subsidiary to, enforce the obligations terms, covenants and conditions contained in the Leases upon the part of the Tenants thereunder to be observed or performed by the tenantsin a commercially reasonable manner, provided, however, Borrower shall not, and shall cause each Borrower Subsidiary not to, terminate or accept a surrender of a Lease without Lender’s prior approval; (iii) shall promptly furnish to Lender any notice of default or termination received by Borrower from any tenantnot, and shall cause each Borrower Subsidiary not to, collect any notice of default or termination given by Borrower to any tenantthe Rents more than one (1) month in advance (other than security deposits); (iv) shall not, and shall cause each Borrower Subsidiary not collect to, execute any rents for more than thirty assignment of lessor’s interest in the Leases or the Rents (30) days in advance of except as contemplated by the time when the same shall become due, except for bona fide security deposits not in excess of an amount equal to two months rentLoan Documents); and (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 consentand shall cause each Borrower Subsidiary not to, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consentalter, modify or amend change any Lease (except so as to change the amount of or payment date for minor modifications and amendments entered into in rent, change the ordinary course of businessexpiration date, consistent with prudent property management practicesgrant any option for additional space or term, not affecting reduce the economic terms obligations of the Lease)Tenant or increase the obligations of the lessor. Borrower shall, and (ix) any Lease termination or cancellation fees shall be paid cause each Borrower Subsidiary to, furnish Lender with executed copies of all Major Leases. Upon Lender's written request, Borrower shall, and shall cause each Borrower Subsidiary to, furnish Lender with executed copies of all Leases that are not Major Leases. Borrower shall, and shall cause each Borrower Subsidiary to, promptly send copies to Lender and held in of all written notices of default which any Borrower Entity shall receive under 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 LenderLeases.
(c) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 2 contracts
Sources: Loan Agreement (IMH Financial Corp), Loan Agreement (IMH Financial Corp)
Leases. (a) All Major Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Major Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Major Lease without the prior written consent of Lender 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 Major Leases not previously delivered to Lender, certified by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; and (DC) if the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 in all material respects the obligations which Borrower is required to perform under the Leases; (ii) shall enforce in all material respects 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 Major Lease; and (viii) shall not, except with Lender’s prior written consent, modify or amend any Major Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 2 contracts
Sources: Loan Agreement (Interstate Hotels & Resorts Inc), Loan Agreement (Interstate Hotels & Resorts Inc)
Leases. (a) All Leases and other rental arrangements all renewals of Leases executed after the date hereof shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the be on commercially reasonable terms, (ii) provide that such Lease is subordinate to the Mortgage, (ii) Mortgage and that the tenant shall lessee will attorn to LenderLender and any purchaser at a foreclosure sale (provided, provided Lender has agreed not however, that Borrower shall be required only to disturb tenant’s occupancy of its lease, use commercially reasonable efforts to obtain such subordination and attornment provisions in the Warehouse Agreements) and (iii) that not contain any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. Within ten (10) days after terms which would materially adversely affect 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. Notwithstanding anything contained in rights under the Loan Documents. Any Major 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 required for future Leases unreasonably withheld or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event delayed, and subject to delivery by Borrower of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses a Rating Agency Confirmation with respect to landlord without Lendersuch Major Lease. Borrower shall pay all reasonable actual out-of-pocket costs and expenses (including reasonable attorney’s prior written consent; (Cfees but excluding internal fees) the Lease does not conflict incurred by Lender or Servicer in connection with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, its review of a Major Lease; (E) , including, without limitation, the Lease shall provide for rental rates fees and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate charges of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial term shall not exceed fifteen (15) years)Rating Agencies. Lender shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement in the form annexed hereto as Schedule IV to Tenants the Tenant under any future commercial Major Leases Lease approved by Lender or any other Lease entered into, subject to and in accordance with this Section 4.1.9
(a) promptly upon request with such commercially reasonable changes as may be requested by Tenantsthe Tenant, from time to time, and which are reasonably acceptable to Lender, provided that Borrower shall pay all reasonable costs and expenses incurred by Lender in connection with such Subordination Non-Disturbance and Attornment Agreement.
(b) Borrower Borrower:
(i) shall perform observe and perform, or cause to be observed and performed, in a commercially reasonable manner the material obligations imposed upon the lessor under Leases in which Borrower is required to perform under the Leases; lessor
(ii) shall enforce the obligations enforce, or cause to be performed enforced as against, the lessees, in a commercially reasonable manner the material terms, covenants and conditions contained in the Leases under which Borrower is the lessor, provided, however, Borrower shall not terminate or accept a surrender of a Major Lease without Lender’s prior approval (which approval may be conditioned upon receipt by Lender of a Rating Agency Confirmation) and shall not terminate or accept a surrender of any other Lease without Lender’s approval, unless such termination or surrender, when taken together with any replacement Lease(s), will not have a material adverse effect on the tenants; applicable Individual Property;
(iii) shall promptly furnish not collect, or cause or permit to Lender be collected, any notice of default or termination received by Borrower from the Rents more than one (1) month in advance and shall not grant its approval of Manager’s collection of any tenant, and any notice of default or termination given by Borrower to any tenant; the Rents more than one (1) month in advance (other than security deposits);
(iv) shall not collect grant any rents for more than thirty assignment of lessor’s interest in the Leases or the Rents (30) days in advance of except as contemplated by 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; Loan Documents);
(v) shall not enter into any ground Lease or master Lease of any part of the Propertyintentionally omitted; and
(vi) in its capacity as lessor, shall not further assign or encumber any Lease; (vii) hold all security deposits under all Leases in accordance with Legal Requirements and upon request, shall not, except furnish Lender with Lender’s prior written consent, cancel or accept surrender or termination executed copies of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 Lenderall Leases.
(c) Within thirty Any proposed Lease, or any amendment, modification or termination of a Lease, that in each case requires Lender’s consent pursuant to this Section 4.1.9 which is, in each case, accompanied by a summary of the material terms of such document(s) (30including any economic terms and any termination options) and which states at the top of such submittal “THIS IS A REQUEST FOR APPROVAL OF A LEASE, AMENDMENT, MODIFICATION OR TERMINATION OF A LEASE PURSUANT TO SECTION 4.1.9 OF THE LOAN AGREEMENT. THIS LEASE OR AN AMENDMENT, MODIFICATION OR TERMINATION THEREOF SHALL BE DEEMED APPROVED BY LENDER IF LENDER DOES NOT NOTIFY BORROWER IN WRITING OF ITS DISAPPROVAL, TOGETHER WITH THE GROUNDS FOR SUCH DISAPPROVAL, WITHIN FIFTEEN (15) CALENDAR DAYS,” shall be deemed approved if Lender shall have not notified Borrower in writing of its disapproval (together with a statement of the grounds of such disapproval) within fifteen (15) calendar days after Borrower has submitted such Lease, or any such amendment, modification or termination of a Lease in such manner to Lender.
(d) Borrower shall use good faith efforts to obtain, within sixty (60) days after the Closing DateLender’s request therefor, Borrower shall deliver to Lender the original of each Tenant Letter of CreditSubordination, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that Non-Disturbance and Attornment Agreements in the case of this clause (b) Lender shall take form annexed as Schedule IV from all steps reasonably necessary to assist Borrower Major Tenants then in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Accountexistence.
Appears in 1 contract
Leases. (a) All Leases and other rental arrangements shall There are no leases, concessions or occupancy agreements in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender effect with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate respect to the Mortgage, (ii) Real Property other than the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, Leases listed on the Rent Roll attached as SCHEDULE 3.12; and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. Within ten (10) days after Lender’s request, Borrower shall furnish to Lender SCHEDULE 3.12 attached hereto is a statement of all tenant security deposits, complete and copies correct list of all Leases not previously delivered to Lender, certified by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is effect on the standard Lease form approved by Lender with no material modificationsdate of this Agreement. Neither Brandywine OP, except for commercially reasonable changes agreed to in Tysons Partnership, BRSCO nor any of the ordinary course Subsidiary Entities has sent out any written notice of Borrower’s business, provided, however, there shall be no material modification any default to any provisions with regard tenant under any Lease which has not been cured except as set forth on Schedule 3.12. To Brandywine OP's knowledge, the lessor has performed all obligations required of it under all of the Leases and there remain no unfulfilled obligations of lessor under the Leases, the nonperformance of which could entitle a tenant to subordination and attornmentdamages under such Lease or could cause lessor to be in default under such Lease. Except as shown on SCHEDULE 3.12, estoppels and other such certificates no tenant has given written notice to Brandywine OP, Tysons Partnership, BRSCO or liability or indemnification clauses any of the Subsidiary Entities of its intention to institute litigation with respect to landlord without Lender’s prior written consent; (C) the any Lease does that has not conflict with any restrictive covenant affecting the Property been dismissed, and neither Brandywine OP, Tysons Partnership, BRSCO or any of the Subsidiary Entities has been served with a citation notifying it of any litigation with respect to any Lease that has not been dismissed. None of the Leases and none of the rents or other Lease amounts payable thereunder have been assigned, pledged or encumbered except for space in any assignments, pledges or encumbrances which will be fully released on or before the Property; (D) the Lease is not Closing Date and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established except pursuant to the Leasing Guidelines attached hereto Mass Mutual Loan Documents. The Rent Roll is true, correct and complete in all material respects as Schedule IV; (F) of the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial term shall not exceed fifteen (15) years). Lender shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement date shown in the form annexed hereto as Schedule IV Rent Roll and, to Tenants under future commercial Major Leases approved by Lender promptly upon request Brandywine OP's knowledge, there has been no material adverse change 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 respect to any tenant; (iv) shall not collect any rents for more than thirty (30) days in advance of the time when items shown on the same shall become dueRent Roll during the period from the date thereof to the date of this Agreement, 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 Lenderas shown thereon.
(c) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 1 contract
Sources: Contribution Agreement (Prentiss Properties Trust/Md)
Leases. (a) All Leases and other rental arrangements A. Without Lender’s prior written consent, which may be granted or withheld in Lender’s sole discretion, Borrowers shall in not enter into or modify, amend, supplement, terminate or cancel any Lease of all respects be approved or any part of any Property. Any submission by Lender and Borrowers for Lender’s consent to a Lease or modification, amendment, supplement, termination or cancellation thereof shall be on accompanied by a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment copy of such Lease without or modification, amendment, supplement, termination or cancellation, a then-current Rent Roll for the applicable Property, year-to-date and prior written 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 (collectively, the “Lease Approval Deliveries”). Each Lease, and each modification, amendment, supplement, termination or cancellation of Lender any Lease, shall be voidable by Lender. 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 correctin writing. Notwithstanding anything contained to the contrary in the Loan Documents, Lender’s approval shall written consent will not be required for future Leases prior to entering into any new Safe Harbor Lease or any modification, amendment, or supplement thereof after the Closing Date (so long as such Lease extensions remains a Safe Harbor Lease after giving effect to any such modification, amendment or modifications if the following conditions are satisfied: (A) there exists supplement), provided that no Default or Event of Default; (B) the Default exists and Borrowers deliver a copy of each such Safe Harbor Lease is on the standard Lease form approved by to Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than within ten (10) years, exclusive of renewal options or rights, which 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 initial term shall not exceed fifteen (15) years). Lender shall execute conditions set forth in this sentence and deliver a Subordination Non-Disturbance and Attornment Agreement in the form annexed hereto as Schedule IV to Tenants under future commercial Major Leases 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 Lenderdefinition of “Safe Harbor Lease” have been satisfied.
(b) Borrower (i) shall perform the obligations B. Lender agrees that for any proposed Lease 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 a proposed Lease after five (5) Business Days after its receipt thereof, together with any additional information 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 same.
C. With respect to each Lease, Borrowers:
(a) shall neither do, nor neglect to do, anything that may 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 done anything to impair the Leases; value of the Lease as security for the Secured Obligations, the Second Mortgage Secured Obligations, the Third Mortgage Secured Obligations and the Pledge and Security Agreement Obligations;
(ii) shall enforce the obligations promptly send copies to be performed by the tenants; Lender of all written notices of default that Borrowers shall send or receive under any Lease;
(iii) shall promptly furnish enforce all of the terms, covenants and conditions contained in the Lease upon the part of the lessee or any other party that is not Borrowers thereunder to Lender any notice be observed or performed and shall not effect a termination or diminution of default or termination received by Borrower from any tenant, and any notice the obligations of default or termination given by Borrower to any tenant; tenants under Lease;
(iv) shall not collect any rents for rent under any Lease more than thirty one (301) days month in advance of the time when the same shall become due, except for bona fide (other than security deposits not in excess of an amount equal to two months rent; deposits);
(v) shall not enter into execute any ground Lease other assignment of Borrowers’ interest in the Leases or master Lease of any part of Revenue, except pursuant to the Property; Security Documents;
(vi) shall not further assign alter, modify or encumber change the terms of any Leaseguaranty of the Leases or cancel or terminate such guaranty without the prior written consent of Lender; and
(vii) shall notnot consent to any assignment of or subletting under the Lease not in accordance with their terms, except with Lender’s without the prior written consent, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 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 (cor at Lender’s option, be fully assignable to Lender) Within thirty (30) days after 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 Closing Dateforegoing. Upon the occurrence and during the continuance of any Event of Default, Borrower shall deliver Borrowers shall, upon Lender’s written request, if permitted by any applicable Legal Requirements, turn over to Lender the original 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 each Tenant Letter any Property, to be held by Lender subject to the terms of Creditthe Leases.
(i) Without limiting the generality of the foregoing, together (a) Borrowers shall notify Lender in writing of any cancellation penalties, termination fees or other consideration payable to Borrowers in connection with any cancellation, termination or surrender of any Lease (any such penalties or 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 surrender such Lease, but in any event prior to the payment by the applicable tenant under such Lease of any such Termination Fees to such Borrower and (b) Lender may, but shall not be required to, (i) require that such Borrowers deposits such Termination Fees into a blank assignment for each Tenant Letter reserve held by Lender or Servicer pursuant to a tenant improvement and leasing commissions reserve agreement, which agreement shall be in form and substance reasonably satisfactory to Lender, and (ii) impose such restrictions and conditions on the timing and amount of Credit disbursements of the Termination Fees from such reserve account as Lender may reasonably require. While , including, without limitation (x) requiring that (1) the space left vacant as a result of such cancellation, termination or surrender be relet to a tenant and under a Lease consented to by Lender unless such consent is either not required or deemed given in accordance with this Section 5.1.18 (any such Lease an “Approved Lease”), (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 such Approved Lease, (3) Borrowers provide to Lender a tenant estoppel certificate from the tenant under such Approved Lease in a form and in substance reasonably acceptable to Lender, and (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 accordance with such Approved Lease, and (y) limiting the amount of any such disbursement to the lesser of (1) the actual cost of re-tenanting such space and (2) the 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.
(ii) 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, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default existsexists 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 (a) at Borrower’s requestprovide Lender with a Rent Roll on an annual basis, promptly return each or any Tenant Letter of Credit certified by Borrowers to Borrower in order to allow Borrower to apply or realize upon Lender as true, correct and complete. Without limiting the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case provisions of this clause (b) Lender Section 5.1.18, the Rent Roll shall take include all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing AccountLeases whether or not evidenced by written instruments.
Appears in 1 contract
Sources: Loan Agreement (GTJ REIT, Inc.)
Leases. (a) All Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) Trustor shall provide Beneficiary with true, correct and complete copies of all material Leases, together with such other information relating to the Leases, as Beneficiary shall reasonably request. Trustor shall not accept prepayments of rent for any period in excess of three (3) months and shall perform all covenants of the lessor under all Leases affecting the Trust Estate. Leases, as used herein, includes any extensions or renewals thereof and any amendments thereto. Trustor shall perform and carry out all of the provisions of the Leases to be performed by Trustor and shall appear in and defend any action in which the validity of any Lease is subordinate at issue and shall commence and maintain any action or proceeding necessary to establish or maintain the Mortgage, validity of any lease and to enforce the provisions thereof.
(ii) If a leasehold estate constitutes a portion of the tenant shall attorn to LenderTrust Estate, provided Lender has agreed Trustor agrees not to disturb tenant’s occupancy of its leaseamend, and (iii) that change, terminate or modify such leasehold estate or any cancellation, surrender, or amendment of such Lease interest therein without the prior written consent of Lender Beneficiary. Consent to one amendment, change, agreement or modification shall not be voidable deemed to be a waiver of the right to require consent to other, future or successive amendments, changes, agreements or modifications. Trustor agrees to perform all obligations and agreements under said leasehold and shall not take any action or omit to take any action which would effect or permit the termination of said leasehold. Trustor agrees to promptly notify Beneficiary in writing with respect to any default or alleged default by Lender. Within ten (10) days after Lender’s request, Borrower shall furnish any party thereto and to Lender a statement of all tenant security deposits, and deliver to Beneficiary copies of all Leases not previously delivered to Lendernotices, certified demands, complaints or other communications received or given by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses Trustor with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension default or modification, a Major Lease; (E) alleged default. Beneficiary shall have the Lease shall provide for rental rates option to cure any such default and landlord concessions comparable to existing local market rates, perform any or all of Trustor's obligations thereunder. All sums expended by Beneficiary in curing any such default shall be an arms length transaction and in no event be with an Affiliate of Borrower, secured hereby and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease immediately due and payable without demand or notice and shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right bear interest from date of renewal, extension or expansion by tenant expenditure at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 LenderAgreed Rate.
(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 Subject to Lender any notice of default or termination received by Borrower from any tenantthe Credit Agreement, 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 each Lease of any part portion of the Property; (vi) Trust Estate shall not further assign or encumber any Lease; (vii) be absolutely subordinate to the lien of this Deed of Trust, but shall not, except with Lender’s prior written consent, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease)contain a provision satisfactory to Beneficiary, and (ix) in any event, each tenant thereunder, by virtue of executing a Lease termination or cancellation fees shall be paid to Lender and held in covering 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each Premises or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s requestportion thereof, retain possession of each or any Tenant Letter of Credit, provided, howeverhereby agrees, that in the case event of this clause (b) Lender the exercise of the private power of sale or a judicial foreclosure hereunder, such Lease, at the option of the purchaser at such sale, shall take all steps reasonably necessary not be terminated and the tenant thereunder shall attorn to assist Borrower in connection with such purchaser and, if requested to do so, shall enter into a draw new Lease for the balance of the term of such Lease then remaining upon the same in accordance terms and conditions. Each such Lease shall, at the request of Beneficiary, be assigned to Beneficiary upon Beneficiary's approved form, and each such assignment shall be recorded and acknowledged by the tenant thereunder. Concurrently with the terms execution of any and all Leases executed after the applicable Lease. Any proceeds date hereof, Trustor shall cause the tenants thereunder to execute an attornment agreement in favor of Beneficiary in form and substance satisfactory to Beneficiary and immediately thereafter deliver such a draw shall be deposited in the Clearing Accountagreement to Beneficiary.
Appears in 1 contract
Sources: Credit Agreement (Cadiz Inc)
Leases. Notwithstanding the foregoing provisions of the foregoing paragraphs regarding termination of the Leases, upon a termination or rejection of the Leases, the Grantor acknowledges that the Beneficiary may enter into (1) an instrument recognizing, confirming and giving legal effect to the continued existence of the Leases in favor of the Beneficiary or its designee, or (2) a new lease in favor of the Beneficiary or its designee (in either event the “Beneficiary’s Lease”) for the Collateral pursuant to the terms of the Leases, or the provisions of a separate agreement between the Beneficiary and Lessor, under the following terms and conditions:
(a) All Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenantThe Beneficiary’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant encumbered by the lien and security interest of this Deed of Trust which Borrower, in its professional shall constitute the first and commercially reasonably judgment, has determined is creditworthy; (G) senior lien on the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 LenderBeneficiary’s Lease.
(b) Borrower (i) The Beneficiary’s execution of the Beneficiary’s Lease shall perform the obligations which Borrower is required to perform under the Leases; (ii) shall enforce the obligations not be deemed to be performed by the tenants; (iii) shall promptly furnish to Lender any notice of default in satisfaction in whole 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications Secured Obligations and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms all of the Lease)other terms, covenants and (ix) any Lease termination or cancellation fees conditions contained in this Grantor shall be paid to Lender and held in remain as a lien on 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 LenderCollateral.
(c) Within thirty (30) days after The Grantor hereby releases, remises, and quitclaims to the Closing DateBeneficiary any interest Grantor may have in the Beneficiary’s Lease and further agrees and acknowledges that the Beneficiary may assign the Beneficiary’s Lease without notice, Borrower shall deliver consent or joinder of the Grantor. The Grantor further waives any right the Grantor may have to Lender challenge the original adequacy of each Tenant Letter any consideration received therefore provided that in the event of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit the Beneficiary’s Lease, the proceeds thereof, if any, less costs and fees, including, but not limited to, customary closing costs and reasonable attorneys’ fees, shall be applied to Lender. Provided no Event of Default exists, Lender reduce the Secured Obligations.
(d) The Beneficiary or its designee shall (a) pay or cause to be paid to the Lessor at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms time of the applicable lease or (b) execution and delivery of such Beneficiary’s Lease, any and all sums which are at Borrower’s request, retain possession the time of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms execution and delivery of the applicable Beneficiary’s Lease due under the Leases and in addition, all reasonable expenses, including reasonable attorneys’ fees which the Lessor shall have incurred by reason of the actual or deemed rejection of the Leases and the execution and delivery of the Beneficiary’s Lease. Any proceeds of such a draw Such payments by the Beneficiary to the Lessor shall be deposited in deemed to have been made for the Clearing Accountprotection of the Grantor and shall constitute part of the Secured Obligations.
Appears in 1 contract
Sources: Leasehold Deed of Trust, Security Agreement and Fixture Filing
Leases. (a) All Leases and other rental arrangements shall Each lease that is to be used in all respects be approved leasing any of the real property owned by Lender and Borrower or any Subsidiary shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate subject to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the Administrative Agent's prior written consent of Lender shall be voidable by Lender. Within ten (10) days after Lender’s requestapproval, 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. Notwithstanding anything contained in the Loan Documents, Lender’s which approval shall not be required for future Leases unreasonably withheld. Each such lease shall have been entered into by Borrower or Lease extensions such Subsidiary in good faith and at arm's length. Borrower shall, or modifications if the following conditions are satisfied: (A) there exists no Default or Event shall cause its Subsidiary to, assign to Administrative Agent all of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modificationsits right, except for commercially reasonable changes agreed title and interest in and to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination all leases and attornment, estoppels rents and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial term shall not exceed fifteen (15) years). Lender shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement to Administrative Agent written assignments thereof in the form annexed hereto as Schedule IV satisfactory to Tenants under future commercial Major Leases approved by Lender promptly upon Administrative Agent. 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing DateAdministrative Agent, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain Administrative Agent individual estoppel certificates from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall all tenants under such leases certifying: (a) at Borrower’s requestthat the leased premises have been completed to the satisfaction of that tenant, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s requestthat the lease is in full force and effect and there are no existing defaults to the knowledge of that tenant, retain possession (c) the date upon which the term of each the lease commenced and the date to which rentals have been paid, (d) that there are no setoffs or any Tenant Letter of Credit, provided, however, that counterclaims against the rent payments and no credits against the rent payments except as set forth in the case lease, (e) that the lease has not been amended or modified and there are no representations, warranties, understandings or agreements pertaining to the subject matter thereof other than as expressly stated in the written lease, and (f) that the tenant has no knowledge of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms any prior assignment or pledge of the applicable Leaselease or of rentals thereunder. Any proceeds For purposes of such a draw clarification, this Section 5.12 shall be deposited in only apply to real property owned by the Clearing AccountBorrower and/or any Subsidiary and does not apply to leases or subleases to any Subsidiary, nor does it apply to any leases of real property pursuant to which Borrower and/or any Subsidiary is the lessee.
Appears in 1 contract
Leases. (a) All Leases and other rental arrangements Each applicable Obligor shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by furnish Lender with no material modifications (except as approved by 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). Such 's approval, provided that, in the case of the execution of a new Lease form shall provide that is not a Major Lease or amendment or renewal of a Lease which is not a Major Lease, (i) the Lease is subordinate 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 Mortgage, landlord thereunder (taken as a whole) are "market" rate and (ii) the tenant 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 contained in this Section 5.8, and in addition thereto, Lender agrees that Lender's consent shall be given with respect to a proposed Major Lease if (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 made or provided Lender has agreed not to disturb tenant’s occupancy of its leaseby the landlord under such proposed Major Lease (taken as a whole) is at "market" rates, and (ii) the proposed terms of such proposed Major Lease (taken as a whole) are Commercially Reasonable. In addition, Lender's approval of any extension or renewal of a Major Lease (whether such extension or renewal is by way of a modification of a Tenant's existing Lease or by way of a new Lease with such Tenant) shall not be required if such extension or renewal is required pursuant to the 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, and Lender's approval of any amendment of a Major Lease shall not be required if such amendment is required pursuant to 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 respective Tenant.
(c) Any proposed new Major Lease, and 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) that any cancellationenforce all of the material terms, surrendercovenants 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, or amendment in the reasonable judgment of such Lease Obligor, in the best interests of the applicable Property; (iv) not seek to 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 Leases; and (vi) not cancel or terminate any guarantee of any of the Major Leases without the prior written consent of Lender Lender, not to be unreasonably withheld, delayed or qualified (clause (vi) of this Section 5.8(d) shall be voidable by Lender. Within ten (10) days after Lender’s request, Borrower shall furnish subject 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. Notwithstanding anything the deemed approval requirement contained in Section 5.8(c), mutatis mutandis).
(e) Following the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if occurrence and during the following conditions are satisfied: (A) there exists no Default or continuance of any Event of Default; (B) , the Lease is on the standard Lease form approved by Lender with no material modificationsObligors shall, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s businessupon Lender's request, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrowerextent not prohibited by applicable Legal Requirements, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 remit 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 the aggregate amount of the Property; security deposits (viand any interest theretofore earned thereon to which Tenants are entitled) shall not further assign or encumber any Lease; (vii) shall notunder all Leases, except with Lender’s prior written consent, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) any Lease termination or cancellation fees shall which security deposits will thereafter be paid held by Lender subject 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession Leases until such Event of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing AccountDefault is cured.
Appears in 1 contract
Leases. Borrower shall not execute (aor permit Mortgage Borrower or Maryland Owner to execute) All Leases any Lease for all or any portion of any Individual Property (a "New Lease"), except for the Master Lease, the Operating Lease and other rental arrangements any Non-Material Lease, without Lender's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Borrower shall cause to be performed at all times promptly and faithfully in all material respects and subject to any grace and cure periods set forth therein, if any, all of the material covenants, conditions and agreements contained in the Master Lease, now or hereafter existing, on the part of the landlord and tenant thereunder to be approved kept and performed. Borrower shall not permit Mortgage Borrower or Maryland Owner to do or cause to be done or to be suffered to be done any act that would reasonably be expected to result in a default by Lender and Mortgage Borrower or Maryland Owner under the Master Lease, a default by Master Tenant under any Operating Lease or permit the Master Tenant or the Operator thereunder to withhold any payment of Rent and, shall be on a standard not assign, sublet or otherwise Transfer, except for Permitted Encumbrances, or permit the assignment, sublet or other Transfer of, the Master Lease form previously approved by Lender with or the Operating Lease or any Rents thereunder or other payments. Borrower, at no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn cost or expense to Lender, provided Lender has agreed not shall cause to disturb tenant’s occupancy be performed and observed each and every material condition and covenant under the Master Lease to be performed or observed by the landlord thereunder and enforce (short of termination) the performance and observance by Master Tenant of each and every material condition and covenant under the Master Lease to be performed or observed by the tenant thereunder, and shall, through the exercise of its leaserights under the Master Lease, cause the Master Tenant to enforce (short of termination) the performance and (iii) that any cancellationobservance by the Operator of each and every material covenant and condition under the Operating Lease to be performed by the tenant thereunder. Borrower shall not, surrender, or amendment of such Lease without the prior written consent of Lender Lender, permit the modification, amendment, supplement or restatement of the Master Lease or the Operating Lease (provided, however, that an Operating Lease may be terminated and/or surrendered and the Master Lease may be amended to reflect same solely in connection with a Permitted Release, Unlicensed Facility Release, Affected Property Release, Limited Cure Release or substitution of an Individual Property pursuant to Sections 2.6, 5.1.28, 6.4(d), 8.1(c) and 2.5 of the Mortgage Loan Agreement, respectively and pursuant to Sections 2.6, 5.1.33, 8.1(c) and 2.5 hereof), or permit the termination or surrender of the Master Lease or the Operating Lease, or permit the release or waiver of the Master Tenant or the Operator from the performance or observance of any material obligation or condition under the Leases (other than Non-Material Leases), and at all times during the term of the Loan, and each Operator shall be voidable by Lenderguaranty the payment obligations of each other Operator under its respective Operating Lease. Within ten (10) days after Lender’s requestExcept with respect to occupancy or residency agreements for residents at the Facilities and Non-Material Leases, Borrower shall furnish not permit the prepayment of any rents under the Leases for more than one (1) month prior to the due date thereof. Notwithstanding the foregoing, Lender a statement shall not unreasonably withhold its consent to any modification, amendment or waiver of all tenant security depositsany provision of an Operating Lease or the Master Lease as may be reasonably necessary to comply with the requirements of this Agreement, and copies any other Loan Document or any Mortgage Loan Document, any Legal Requirement or Health Care Requirement, or that makes the provisions of all Leases not previously delivered to Lenderthe Operating Lease and/or the Master Lease consistent with the provisions of this Agreement, certified by Borrower as being true and correctany other Loan Document or any Mortgage Loan Document. Notwithstanding anything contained in this Section 5.1.22 to the Loan Documentscontrary, (a) Lender’s approval 's consent to any material amendment, modification, supplement or restatement of the Master Lease shall not also be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: conditioned on (A) there exists no Default or Event of Default; (B1) the delivery by Borrower of an Additional Insolvency Opinion and an Additional True-Lease is on the standard Lease form approved by Opinion acceptable to Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C2) the Lease does not conflict with any restrictive covenant affecting satisfaction of the Property or any other Lease for space in the Property; (D) the Lease is not applicable REIT Representations and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable Covenants related to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of BorrowerLeases, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 Lender's consent to (i) shall perform the obligations which Borrower is required to perform under the any New Lease other than Non-Material 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.,
Appears in 1 contract
Sources: Loan Agreement (Hcp, Inc.)
Leases. (a) Borrower shall furnish Lender with executed copies of all Leases then in effect. All renewals of Leases and other all proposed leases shall provide for rental arrangements shall in all respects be approved by Lender rates and shall be on a standard Lease form previously approved by Lender with no material modifications (except as terms comparable to existing local market rates and, unless otherwise approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lenderarm’s length transactions with bona fide, independent third-party Tenants. Within ten (10) days after Lender’s requestthe execution of a Lease or any renewals, amendments or modification of a Lease, Borrower shall furnish deliver to Lender a statement 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 all tenant security deposits, and copies of all Leases not previously delivered to Lender, certified by this Agreement.
(b) Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases permit or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification consent to any provisions with regard to subordination and attornment, estoppels and other such certificates assignment or liability or indemnification clauses with respect to landlord sublease of any Lease without Lender’s prior written consent; approval, not to unreasonably withheld (C) other than assignments or subleases expressly permitted under any Lease pursuant to a unilateral right of the Lease does Tenant thereunder not conflict with any restrictive covenant affecting requiring the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate consent of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial term shall not exceed fifteen (15) years). Lender Lender, at Borrower’s sole cost and expense, shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement in the its standard form annexed hereto as Schedule IV of SNDA (i) to Tenants under any future commercial Major Leases Lease approved by Lender promptly upon request request, with such commercially reasonable changes as may be requested by Tenants, from time to time, such Tenants and which are reasonably acceptable to Lender.
(b) Borrower (i) shall perform the obligations which Borrower is required to perform under the Leases; Lender and (ii) shall enforce the obligations to be performed by the tenants; (iii) shall promptly furnish to Lender Tenants under 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 future 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent accordance with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 LenderAgreement.
(c) Within thirty (30) days after Borrower shall cause all Tenants under Leases to execute and deliver a SNDA and Estoppel to Lender on or before the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 1 contract
Sources: Term Loan Agreement
Leases. (a) All Leases and other rental arrangements all renewals of Leases executed after the date hereof shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the be on commercially reasonable terms, (ii) provide that such Lease is subordinate to the Mortgage, (ii) Mortgage and that the tenant shall lessee will attorn to LenderLender and any purchaser at a foreclosure sale (provided, provided Lender has agreed not however, that Borrower shall be required only to disturb tenant’s occupancy of its lease, use commercially reasonable efforts to obtain such subordination and attornment provisions in the Warehouse Agreements) and (iii) that not contain any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. Within ten (10) days after terms which would materially adversely affect 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. Notwithstanding anything contained in rights under the Loan Documents. Any Major 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 required for future Leases unreasonably withheld or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event delayed, and subject to delivery by Borrower of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses a Rating Agency Confirmation with respect to landlord without Lendersuch Major Lease. Borrower shall pay all reasonable actual out-of-pocket costs and expenses (including reasonable attorney’s prior written consent; (Cfees but - excluding internal fees) the Lease does not conflict incurred by Lender or Servicer in connection with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, its review of a Major Lease; (E) , including, without limitation, the Lease shall provide for rental rates fees and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate charges of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial term shall not exceed fifteen (15) years)Rating Agencies. Lender shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement in the form annexed hereto as Schedule IV to Tenants the Tenant under any future commercial Major Leases Lease approved by Lender or any other Lease entered into, subject to and in accordance with this Section 4.1.9
(a) promptly upon request with such commercially reasonable changes as may be requested by Tenantsthe Tenant, from time to time, and which are reasonably acceptable to Lender, provided that Borrower shall pay all reasonable costs and expenses incurred by Lender in connection with such Subordination Non-Disturbance and Attornment Agreement.
(b) Borrower Borrower:
(i) shall perform observe and perform, or cause to be observed and performed, in a commercially reasonable manner the material obligations imposed upon the lessor under Leases in which Borrower is required to perform under the Leases; lessor;
(ii) shall enforce the obligations enforce, or cause to be performed enforced as against, the lessees, in a commercially reasonable manner the material terms, covenants and conditions contained in the Leases under which Borrower is the lessor, provided, however, Borrower shall not terminate or accept a surrender of a Major Lease without Lender’s prior approval (which approval may be conditioned upon receipt by Lender of a Rating Agency Confirmation) and shall not terminate or accept a surrender of any other Lease without Lender’s approval, unless such termination or surrender, when taken together with any replacement Lease(s), will not have a material adverse effect on the tenants; applicable Individual Property;
(iii) shall promptly furnish not collect, or cause or permit to Lender be collected, any notice of default or termination received by Borrower from the Rents more than one (1) month in advance and shall not grant its approval of Manager’s collection of any tenant, and any notice of default or termination given by Borrower to any tenant; the Rents more than one (1) month in advance (other than security deposits);
(iv) shall not collect grant any rents for more than thirty assignment of lessor’s interest in the Leases or the Rents (30) days in advance of except as contemplated by 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; Loan Documents);
(v) shall not enter into any ground Lease or master Lease of any part of the Propertyintentionally omitted; and
(vi) in its capacity as lessor, shall not further assign or encumber any Lease; (vii) hold all security deposits under all Leases in accordance with Legal Requirements and upon request, shall not, except furnish Lender with Lender’s prior written consent, cancel or accept surrender or termination executed copies of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 Lenderall Leases.
(c) Within thirty Any proposed Lease, or any amendment, modification or termination of a Lease, that in each case requires Lender’s consent pursuant to this Section 4.1.9 which is, in each case, accompanied by a summary of the material terms of such document(s) (30including any economic terms and any termination options) and which states at the top of such submittal “THIS IS A REQUEST FOR APPROVAL OF A LEASE, AMENDMENT, MODIFICATION OR TERMINATION OF A LEASE PURSUANT TO SECTION 4.1.9 OF THE LOAN AGREEMENT. THIS LEASE, OR AN AMENDMENT, MODIFICATION OR TERMINATION THEREOF SHALL BE DEEMED APPROVED BY LENDER IF LENDER DOES NOT NOTIFY BORROWER IN WRITING OF ITS DISAPPROVAL, TOGETHER WITH THE GROUNDS FOR SUCH DISAPPROVAL, WITHIN FIFTEEN (15) CALENDAR DAYS,” shall be deemed approved if Lender shall have not notified Borrower in writing of its disapproval (together with a statement of the grounds of such disapproval) within fifteen (15) calendar days after Borrower has submitted such Lease, or any such amendment, modification or termination of a Lease in such manner to Lender.
(d) Borrower shall use good faith efforts to obtain, within sixty (60) days after the Closing DateLender’s request therefor, Borrower shall deliver to Lender the original of each Tenant Letter of CreditSubordination, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that Non-Disturbance and Attornment Agreements in the case of this clause (b) Lender shall take form annexed as Schedule IV from all steps reasonably necessary to assist Borrower Major Tenants then in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Accountexistence.
Appears in 1 contract
Leases. (a) All Leases and other rental arrangements Borrower shall in all respects be approved by Lender not enter into or amend any Lease without Lender's prior written consent, and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn furnish to Lender, provided upon execution, a complete and fully executed copy of each Lease. Borrower shall provide Lender has agreed not to disturb tenant’s occupancy with a copy of its lease, and (iii) that any cancellation, surrender, or amendment of such each proposed Lease without requiring the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved with any information requested by Lender with no material modifications, except for commercially reasonable changes agreed to in regarding the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the proposed Tenant thereunder. Lender may declare each Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) yearsprior or subordinate to this Mortgage, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 at Lender's option.
(b) Borrower (i) shall shall, at its cost and expense, perform the obligations which Borrower is required to perform under the Leases; (ii) shall enforce the obligations each obligation to be performed by the tenantslandlord under each Lease; (iii) shall promptly furnish to Lender any notice of default not borrow against, pledge 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 further assign any rents or other payments due thereunder;not permit the prepayment of any rents or other payments due for more than thirty (30) days in advance of the time when the same shall become due, except for bona fide security deposits advance; and not in excess of an amount equal permit any Tenant to two months rent; (v) shall not enter into any ground assign its Lease or master Lease 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 part liability for performance of the Property; its obligations thereunder.
(vic) If any Tenant shall not further assign or encumber any default under its Lease; (vii) shall not, except with Lender’s prior written consentBorrower shall, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent exercise sound business judgment with prudent property management practicesrespect to such default, not affecting but may discount, compromise, forgive or waive claims or discharge the economic terms Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease), and (ix) 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.
(cd) Within thirty (30) days after If Borrower fails to perform any obligations of Borrower under any Lease or if Lender becomes aware of or is notified by any Tenant of a failure on the Closing Datepart of Borrower to so perform, Lender may, but shall not be obligated to, without waiving or releasing Borrower shall deliver from any obligation in this Agreement or any of the other Loan Documents, remedy such failure, and Borrower agrees to repay upon demand all sums incurred by Lender the original of each Tenant Letter of Creditin remedying any such failure, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain interest thereon from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of date incurred at the Default exists, Lender shall Rate (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that as defined in the case Note).
(e) For purposes of this clause (b) Lender Mortgage, the following terms shall take all steps reasonably necessary to assist Borrower in connection with a draw upon have the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.following meanings:
Appears in 1 contract
Leases. (a) All Leases and other rental arrangements all renewals of Leases executed after the date hereof shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (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 Mortgage, (ii) Mortgage and that the tenant shall lessee will attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and any purchaser at a foreclosure sale and (iiiiv) that not contain any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. Within ten (10) days after terms which would materially adversely affect 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. Notwithstanding anything contained in 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, which approval shall not be required for future Leases unreasonably withheld, conditioned or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Defaultdelayed; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornmentthat Borrower may, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; consent (Cx) the Lease does enter into renewals, modifications, amendments, expansions and terminations of existing Leases that are not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; Leases and (Hy) the Lease is for a term of enter into new Leases that are not more than ten (10) years, exclusive of renewal options or rights, which together with the initial term shall not exceed fifteen (15) years)Major Leases. Lender shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement in the form annexed hereto as Schedule IV to Tenants under future commercial Major 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 which provides for an excess of $50.00 per rentable square foot for tenant improvements, tenant allowances and 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 fund such excess before Lender disburses same out of the various Reserve Funds.
(b) Borrower (i) shall observe and perform the obligations which Borrower is required to perform imposed upon the lessor under the LeasesLeases in a commercially reasonable manner; (ii) shall use commercially reasonable efforts to enforce the obligations 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, 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 tenants; Senior Mezzanine Lender or the Junior A Mezzanine Lender or the Junior B Mezzanine Lender (or any holder of any loan which refinanced such mezzanine loans) do not approve such termination or surrender, (iii) shall promptly furnish to Lender not collect any notice of default or the Rents more than one (1) month in advance (other than security deposits and lease termination received by Borrower from any tenant, and any notice of default or termination given by Borrower to any tenantpayments permitted under Leases permitted hereunder); (iv) shall not collect execute any rents for more than thirty assignment of lessor’s interest in the Leases or the Rents (30) days in advance of except as contemplated by the time when the same shall become due, except for bona fide security deposits not in excess of an amount equal to two months rentLoan Documents); and (v) shall not enter into any ground Lease or master Lease hold all security deposits under all Leases in accordance with Legal Requirements. Upon request, Borrower shall furnish Lender with executed copies 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 Lenderall Leases.
(c) Within thirty Notwithstanding anything to the contrary contained in this Section 4.1.9:
(30i) days after whenever Lender’s approval or consent is required pursuant to the Closing Dateprovisions of this Section 4.1.9, Borrower shall deliver 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 original proposed Major Lease (or renewal, modification or amendment thereof) including, without limitation, identity of each Tenant Letter 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 Credit, together with a blank assignment Borrower’s written request for each Tenant Letter approval or consent of Credit as such term sheet. If Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts fails to obtain from the Issuing Bank its consent respond to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default existssuch request within ten (10) Business Days, Lender shall be deemed to have approved or consented to such term sheet;
(aii) at 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 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 requestwritten 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, promptly return 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, a 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 new 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, 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 Lease on the basis of any provisions of such Lease dealing with the items contained in the approved term sheet or any Tenant Letter other provisions which do not materially adversely affect the Property, Borrower or Lender; and
(v) Borrower shall have the right, without the consent or approval of Credit Lender in any instance, to Borrower in order to allow Borrower to apply terminate or realize upon the same in accordance with the terms accept a surrender of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, Lease that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with is not a draw upon the same in accordance with the terms of the applicable Major Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 1 contract
Leases. (a) All 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 and other rental arrangements shall in or agreements to lease all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) or any part of the Lease is Mortgaged Property or to modify, amend, terminate or consent to the surrender 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 the this Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable thereof by Lender. Within ten Mortgagee.
(10b) 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 Upon receipt by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases approved by Lender promptly upon request with such commercially reasonable changes as may be requested by TenantsMortgagor, 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 deposit such sum in a separate escrow account with a national or state bank having banking offices in the state in which the Mortgaged Property is located. Mortgagor shall promptly give Mortgagee written notice of the 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 to receive any information requested by Mortgagee from the bank as to the status and balance of such account. Said sums shall be held in trust by Mortgagor and disbursed only upon the prior written approval of Mortgagee, which are reasonably acceptable to Lender.
approval shall not be unreasonably withheld. The prior written consent of Mortgagee shall not be required when by law (bor agreement approved by Mortgagee) Borrower (i) shall perform the obligations which Borrower Mortgagor is required to perform return any of such 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 that after an Event of Default by Mortgagor under the Leases; (ii) shall enforce Loan Documents, 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 tenantsums in said bank accounts shall, 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing DateMortgagee, Borrower shall deliver be payable to Lender the original Mortgagee as assignee of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, such bank account; provided, however, that in the case Mortgagee shall have no liability for any prior misapplication of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Accountsaid sums by Mortgagor.
Appears in 1 contract
Sources: Mortgage, Security Agreement and Fixture Filing (Blonder Tongue Laboratories Inc)
Leases. (a) 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 and other rental arrangements shall of space in all respects be approved by Lender and 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, shall provide for market rents then prevailing in the market area of the Premises and substantially all of the Leases at the Property shall be for a standard Lease form previously approved by Lender with no material modifications term of not less than six (except as approved by Lender)6) months or greater than one (1) year. Such Lease form Leases may also provide for security deposits in reasonable amounts consistent with prevailing market conditions. Borrower shall provide that (i) the Lease is subordinate also submit to Lender for Lender’s approval, which approval shall not be unreasonably withheld, prior to the Mortgageexecution thereof, (ii) any proposed Lease of the tenant Improvements or any portion thereof that differs materially and adversely from the aforementioned form Lease. Borrower shall attorn 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. Borrower shall furnish to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. Within within ten (10) days after Lender’s requesta request by Lender to do so, Borrower shall furnish to Lender but in any event by January 1 of each year, a statement of all tenant security deposits, and copies of all Leases not previously delivered to Lendercurrent Rent Roll, certified by Borrower as being true and correct. Notwithstanding anything contained in , containing the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event names of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses all Tenants with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) , the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of their respective Leases, the Lease)spaces occupied and the rentals or fees payable thereunder and the amount of each Tenant’s security deposit, and (ix) any Lease termination or cancellation fees shall be paid to Lender and held in if any. Upon 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 request of Lender.
(c) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original a copy of each such Lease. Borrower shall not do or suffer to be done any act, or omit to take any action, that might result in a default by the landlord, lessor or licensor under any such Lease or allow the Tenant Letter thereunder to withhold payment of Creditrent or cancel or terminate same and shall not further assign any 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 except to the extent consistent with prudent collection practices. 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 party from the performance or observance of any obligation or condition under such Leases except 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 represents, warrants and covenants that no Rents have been anticipated, discounted, released, waived, compromised or otherwise discharged, except for prepayment of rent of not more than one (1) month prior to the accrual thereof, except for prepayments for up to thirty percent (30%) of the Leases at the Property consistent with sound and customary leasing practices for similar properties in the community in which the Property is located.
(b) 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 part thereof personally, or by its agent or attorneys. In such event, Lender shall have, and Borrower hereby gives and grants to Lender, the right, power and authority to make and enter into Leases with respect to the Property or portions thereof for such rents and for such periods of occupancy and upon conditions and provisions as Lender may deem desirable in its sole discretion, 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 be revocable by Borrower so long as any portion of the Debt is outstanding, shall 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, Lender shall not be liable for any loss sustained by Borrower resulting from any failure to let the Property, or 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 any obligation, duty or liability under any Lease covering the Property or any part thereof or under or by reason of this instrument or 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 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 court of competent jurisdiction to have resulted solely from the gross negligence or willful misconduct of Lender. Should Lender incur any such liability, the amount thereof, including, without limitation, costs, expenses and reasonable attorneys’ fees, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of interest thereon at the Default exists, Borrower shall use commercially reasonable efforts to obtain Interest Rate from the Issuing Bank its consent date incurred by Lender until actually paid by Borrower, shall be immediately due and payable to an assignment Lender by Borrower on demand and shall be secured hereby and by all of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each the other Loan Documents securing all or any Tenant Letter part of Credit to Borrower the Debt. Nothing in order to allow Borrower to apply this Section shall impose on Lender any duty, obligation or realize upon responsibility for the same in accordance with control, care, management or repair of the Property, or for the carrying out of any of the terms and 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 applicable lease Property, or (b) at Borrower’s request, retain possession of each or for any Tenant Letter of Credit, provided, however, that negligence in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms management, upkeep, repair or control of the applicable LeaseProperty. Any proceeds Borrower hereby assents to, ratifies and confirms any and all actions of such a draw shall be deposited in Lender with respect to the Clearing AccountProperty taken under this Section.
Appears in 1 contract
Sources: Deed of Trust, Security Agreement and Fixture Filing (Campus Crest Communities, Inc.)
Leases. Any Major Leases with respect to any Individual Property executed after the Closing Date (aother than Separate Leases (as defined in the Master Lease) to Master Tenant and/or its Affiliates that may be required from time to time pursuant to the Master Lease) shall be subject to the prior written approval of Lender, which approval shall not be unreasonably withheld, conditioned or delayed. Upon request, Borrower shall furnish Lender with executed copies of all Leases in Borrower’s possession or reasonably obtainable by Borrower or Manager. All renewals of Leases and other all proposed Leases shall provide for rental arrangements shall in all respects be approved rates required by Lender and the terms of the respective Leases and, if no such rates are required or specified, or if such Lease is a new Lease, rental rates that are comparable to existing local market rates. All proposed Leases shall be on commercially reasonable terms and shall not contain any terms which would materially affect Lender’s rights under the Loan Documents. All Leases executed after the date hereof shall provide that they are subordinate to the Mortgage encumbering the applicable Individual Property and that the lessee agrees to attorn to Lender or any purchaser at a standard Lease form previously approved sale by Lender with foreclosure or power of sale. 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 and in a manner not to impair the value of the Individual Property involved except that no material modifications termination by Borrower or acceptance of surrender by a Tenant of any Leases shall be permitted unless by reason of a tenant default and then only in a commercially reasonable manner to preserve and protect the Individual Property; (iii) shall not collect any of the rents more than one (1) month in advance (other than security deposits); (iv) shall not execute any other assignment of lessor’s interest in the Leases or the Rents (except as approved contemplated by Lenderthe Loan Documents). Such Lease form ; (v) shall provide that not alter, modify or change the terms of the Leases in a manner inconsistent with the provisions of the Loan Documents; (ivi) shall execute and deliver at the Lease is subordinate request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require; and (vii) to the Mortgageextent Borrower has an approval right over the same, (ii) Borrower shall not approve any sublease of any portion of the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease Property by Master Tenant without the prior written consent of Lender shall not to be voidable by Lender. Within ten (10) days after Lender’s requestunreasonably withheld, 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 correctconditioned or delayed. Notwithstanding anything to the contrary contained in the Loan Documentsherein, Lender’s approval (x) Borrower shall not be required for future Leases enter into a Lease of all or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event substantially all of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord Individual Property without Lender’s prior written consent; , (Cy) the Lease does not conflict all new Leases and all amendments, modifications, extensions, and renewals of existing Leases with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, Tenants that are Affiliates of Borrower shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant subject to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right prior written consent of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; Lender and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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.
(bz) 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 amendment, modification, restatement or termination of, or accept the surrender of, any Major Lease or master Lease of any part of without the Property; (vi) shall not further assign or encumber any Lease; (vii) shall not, except with Lender’s prior written consent, cancel such consent to be granted or accept surrender or termination of any Lease; (viii) shall not, except with withheld in Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 Lendersole discretion.
(c) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 1 contract
Leases. (a) All Leases Mortgagor warrants and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide represents that (i) the Lease 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 subordinate to the Mortgagea part is true, correct and complete, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its leaseall leases described in said schedule are presently in effect, and (iii) that to the best of Mortgagor's knowledge, no default exists under any cancellationsuch lease (other than any default disclosed in said schedule). Upon request of Mortgagee, surrenderMortgagor shall provide Mortgagee with a 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 amendment hereafter affecting all or any part of the Mortgaged Property, and Mortgagor shall use reasonable efforts to require each tenant under any such Lease 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 all such leases and all amendments thereto.
(b) Mortgagor shall not, without the prior written consent of Lender shall be voidable by Lender. Within ten Mortgagee, accelerate the payment of rent or accept payment of rent more than one (101) days after Lender’s requestmonth in advance, Borrower shall furnish to Lender a statement grant any reduction, deferral or abatement of all rent payable under any such lease, grant any rights of termination or cancellation in favor of the tenant security depositsunder any such lease, and copies shorten the term of all Leases not previously delivered to Lenderany such lease, certified by Borrower as being true and correct. Notwithstanding anything or change the terms or renewal or extension provision under any such lease.
(c) The assignment contained in paragraph (H) of the Loan Documents, Lender’s approval section of this Mortgage entitled "The Mortgaged Property" shall not be required deemed to impose upon Mortgagee any 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 have 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 from time to time shall specifically assign to Mortgagee as additional security for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form Indebtedness, by a written instrument approved by Lender with no material modificationsMortgagee, except for commercially reasonable changes agreed to all right, title and interest of Mortgagor in the ordinary course of Borrower’s business, provided, however, there shall be no material modification and to any provisions and all leases now or hereafter affecting all or any part of the Mortgaged Property, together with regard all security therefor and all money payable thereunder, subject to subordination the conditional permission given to Mortgagor to collect and attornmentuse the rents, estoppels income and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after benefits arising under any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto lease as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial term shall not exceed fifteen (15) years)provided above. Lender Mortgagor also shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement in to Mortgagee any notice, financing statement or other document required by Mortgagee to perfect the form annexed hereto foregoing assignment as Schedule IV to Tenants under future commercial Major Leases approved by Lender promptly upon request with any such commercially reasonable changes as may lease. The provisions of this Section 1.12 shall be requested by Tenants, from time subject to time, and which are reasonably acceptable to Lenderthe provisions of said paragraph (H).
(bd) 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) Mortgagor shall not enter into any ground Lease or master Lease new lease for the Property without the prior approval 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable such lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Creditby Mortgagee, provided, however, that in the case Mortgagee notify Mortgagor of this clause it approval or disapproval within ten (b10) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds days of such a draw shall be deposited in the Clearing Accountproposed lease being submitted to Mortgagee.
Appears in 1 contract
Sources: Open End Mortgage Deed and Security Agreement (Griffin Land & Nurseries Inc)
Leases. (a) Borrower shall furnish Lender with executed copies of all Leases hereafter entered into. All new Leases and other rental arrangements renewals or Modifications of Leases shall in all respects be approved by Lender entered into on an arms-length basis, at market rates for similar properties, and shall be on a standard Lease form previously approved by Lender with no material modifications contain terms and conditions that are commercially reasonable.
(except as approved by Lender). Such Lease form shall provide that (ib) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its leaseAll new Leases which are Major Leases, and (iii) that all terminations, renewals and material Modifications of Major Leases, and any cancellation, surrender, or amendment surrender of such rights under any Major Lease without shall be subject to the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed; provided however that Borrower may, without Lender’s consent (x) enter into Modifications and terminations of existing Leases that are not Major Leases; and (y) subject to Section 4.1.8(c) below, enter into new Leases that are not Major Leases.
(c) All new Leases executed after the date hereof which are not Major Leases shall be substantially in the form of Exhibit B attached hereto (the “Form Lease”); provided that the Form Lease may be Modified by Borrower to the extent such Modifications are negotiated on an arms-length basis and reflect commercially reasonable market terms, as reasonably determined by Borrower. 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 which provides for in excess of $50.00 per rentable square foot for tenant improvements, tenant allowances and leasing commissions in the aggregate unless Borrower provides Lender evidence that it has the financial liability (e.g., adequate funds on deposit with Lender which are available for the payment of same) to fund such excess before such amounts are disbursed out of the various Reserve Funds.
(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; (ii) observe and perform all the material obligations imposed upon the lessor under the Leases; (iii) to the extent commercially reasonable, 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, provided that Borrower may terminate any Lease that is not a Major Lease following a material default thereunder by the respective Tenant; (iv) not seek to 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 Major Lease or guarantee of any of the Major Leases except as set forth in Section 4.1.8(b) above.
(e) Notwithstanding anything to the contrary contained in this Section 4.1.8:
(i) whenever Lender’s approval or consent is required pursuant to the provisions of this Section 4.1.8, Borrower shall have the right to submit a term sheet for any Lease or any Modification 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 Lease (or Modification thereof) including, without limitation, identity of tenant, square footage, term, rent, rent credits, abatements, work allowances and tenant improvements to be voidable constructed by Borrower (and shall be accompanied by copies of all written materials obtained by Borrower in connection with their evaluation of the creditworthiness of the proposed Tenant) and shall include a request containing a legend in bold letters stating that Lender. Within ’s failure to respond within ten (10) days Business Days shall be deemed consent or approval of the term sheet. Lender shall respond within ten (10) Business Days after Lender’s requestreceipt 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, Borrower Lender shall furnish be deemed to have approved or consented to such term sheet. Approval of the term sheet in accordance with this subsection (i) does not constitute approval of the Lease itself and such approval of the Lease, if such Lease is required to be approved under this Section 4.1.8, must be obtained in accordance with subsection (iii) hereof;
(ii) whenever Lender’s approval or consent is required pursuant to the provisions of this Section 4.1.8 for any matter that Lender has not previously approved a statement term sheet pursuant to Section 4.1.8(e)(i) above, Lender shall respond within ten (10) Business Days after Lender’s receipt of all tenant security depositsBorrower’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 approval. If Lender fails to respond to such request within ten (10) Business Days, Lender shall have been deemed to have approved or consented to the matter for which Lender’s consent or approval was sought. Such request for approval shall be accompanied by a copy of the proposed lease, a summary of the material economic terms thereof and any termination and other material options contained therein, and copies of all Leases not written materials obtained by Borrower in connection with their evaluation of the creditworthiness of the proposed Tenant or, with respect to a proposed termination, a description of the reason therefore;
(iii) whenever Lender’s approval or consent is required pursuant to the provisions of this Section 4.1.8 for any matter that Lender has previously approved a term sheet pursuant to Section 4.1.8(e)(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 (aa) a new Major Lease or an amended and restated Major Lease, (bb) a term sheet has been approved by Lender, (cc) a blacklined copy of the new document against the Form Lease, and (dd) an Officer’s Certificate is delivered to Lender, certified by Borrower in each case, indicating that the new document’s only differences with the Form Lease are as being true and correct. Notwithstanding anything contained reflected in the Loan Documentsapproved term sheet, are those which do not materially adversely affect the Property, Borrower or Lender’s , or are those which Lender has otherwise approved, which approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) reasonable so long as there exists is no Default or Event of Default; and
(Biv) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there event that Lender shall have approved (or be no material modification deemed to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses have approved) a term sheet submitted by Borrower with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major certain Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each not withhold its approval or consent with respect to such Lease on the basis of any Tenant Letter provisions of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance such Lease dealing with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that items contained in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Accountapproved term sheet.
Appears in 1 contract
Sources: Junior B Mezzanine Loan Agreement (Thomas Properties Group Inc)
Leases. (a) All Upon the reasonable request of the Agent, the Borrowers shall furnish the Agent with executed copies of any Major Leases entered into after the Closing Date. The Debtors hereby covenant and agree that, with respect to First Lien Properties and subject to clause (b) below, all new Major Leases and other rental arrangements shall in all respects be approved by Lender and renewals or amendments of Major Leases shall be entered into with Tenants whose identity and creditworthiness are appropriate for tenancy at the applicable Property, shall provide for rental rates and other economic terms which, taken as a whole, are not materially less favorable than then-existing market rates, based on a standard Lease form previously approved by Lender with no material modifications (the applicable market, except as approved otherwise agreed to by Lenderthe Agent.
(b) With respect to First Lien Properties, all new Major Leases that do not comply with Section 9.19(a) shall be subject to the prior written consent of the Agent (it being understood that all other Leases or terminations, renewals and amendments of Leases shall not require the Agent’s prior written consent), which consent shall not be unreasonably withheld, conditioned or delayed. Such Lease form Each Debtor shall provide that have the right to waive or negotiate settlement of defaults (or threatened defaults) under Leases, so long as such waiver or settlement could not reasonably be expected to have a Material Adverse Effect.
(c) Each Debtor shall (i) observe and perform all material post-petition obligations imposed upon the Lease is subordinate lessor under the Major Leases (other than Major Leases that are rejected pursuant to the MortgageCase), (ii) with respect to First Lien Properties, enforce all material terms, covenants and conditions contained in the tenant shall attorn Major Leases on the part of the lessee thereunder to Lenderbe observed or performed, short of termination thereof (including enforcing the provisions, if any, requiring Tenants to perform all acts necessary to satisfy the requirements of Governmental Authorities and, if applicable, to do such acts as are necessary to maintain their respective certificates of occupancy in full force and effect); provided Lender has agreed not that a Debtor may terminate any Lease, subject to disturb tenant’s occupancy of its leaseSection 9.19(b) above, and following a default thereunder by the respective Tenant, (iii) not collect any of the rents under any Major Lease (exclusive of security deposits) more than one month in advance of the due date thereof, other than in connection with the satisfaction or compromise of Tenant improvements costs, (iv) not execute any assignment of lessor’s interest in the Leases or associated rents other than the assignment of rents and leases contained in the Financing Order and, as applicable, in the documents that create or evidence the Pre-Petition Liens (or any cancellation, surrender, refinancing or amendment extension thereof permitted under this Agreement) and (v) not cancel or terminate any guarantee (except in accordance with the terms thereof) of such Lease any of the Major Leases without the prior written consent of Lender the Agent (which consent shall not be voidable by Lender. Within ten unreasonably withheld or delayed) unless such cancellation or termination could not reasonably be expected to have a Material Adverse Effect.
(10d) days after Lender’s At the Borrowers’ written request, Borrower the Agent, for and on behalf of the Lenders, shall furnish to Lender enter into a statement of all tenant security depositssubordination, non-disturbance and copies of all Leases not previously delivered to Lenderattornment agreement, certified by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documentsform (i) in the case of Leases with respect to First Lien Properties, Lender’s approval attached hereto as Exhibit F or (ii) in the case of Leases with respect to Second Lien Properties, in the form approved by the lender that holds the prior Lien on such Second Lien Property, and, in each case with respect to any national Tenant, as such Tenant and the Agent shall reasonably agree. The Agent shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modificationsto provide any such subordination, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination non-disturbance and attornment, estoppels and other such certificates or liability or indemnification clauses attornment agreement with respect to landlord without Lender’s prior written consent; (C) First Lien Properties unless it shall receive in exchange an estoppel certificate from the Tenant under the applicable Lease does not conflict with any restrictive covenant affecting that the Property or any other Lease for space in the Property; (D) the Lease Tenant is not aware of any material default by the landlord under the Lease. For avoidance of doubt, the costs and would not be, after expenses of the Agent in connection with the review of any such extension or modificationsubordination, a Major Lease; (E) the Lease shall provide for rental rates non-disturbance and landlord concessions comparable to existing local market rates, attornment agreement shall be an arms length transaction paid or reimbursable by the Borrowers in accordance with Section 15.6; provided that such fees and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial term expenses 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 commercial Major Leases approved by Lender promptly upon request with $100 per 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that agreement in the case of this agreements set forth in clause (bi) Lender shall take all steps reasonably necessary which are not negotiated and otherwise $1,000 per agreement.
(e) With respect to assist Borrower in connection with any approval by the Agent of a draw upon the same in accordance with the terms Major Lease pursuant to Section 9.19(a) or any consent of the applicable Lease. Any proceeds Agent regarding any Major Lease referred to in Section 9.19(b), if no response thereto is received by the General Partner from the Agent within five (5) Business Days of a request for such a draw approval or consent is delivered in writing to the Agent, then such approval or consent (as applicable) shall be deposited in deemed to have been given by the Clearing AccountAgent.
Appears in 1 contract
Leases. (a) All Leases and other rental arrangements A. Without Lender’s prior written consent, which may be granted or withheld in Lender’s sole discretion, Borrowers shall in not enter into or modify, amend, supplement, terminate or cancel any Lease of all respects be approved or any part of any Property. Any submission by Lender and Borrowers for Lender’s consent to a Lease or modification, amendment, supplement, termination or cancellation thereof shall be on accompanied by a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment copy of such Lease without or modification, amendment, supplement, termination or cancellation, a then-current Rent Roll for the applicable Property, year-to-date and prior written 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 (collectively, the “Lease Approval Deliveries”). Each Lease, and each modification, amendment, supplement, termination or cancellation of Lender any Lease, shall be voidable by Lender. 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 correctin writing. Notwithstanding anything contained to the contrary in the Loan Documents, Lender’s approval shall written consent will not be required for future Leases prior to entering into any new Safe Harbor Lease or any modification, amendment, or supplement thereof after the Closing Date (so long as such Lease extensions remains a Safe Harbor Lease after giving effect to any such modification, amendment or modifications if the following conditions are satisfied: (A) there exists supplement), provided that no Default or Event of Default; (B) the Default exists and Borrowers deliver a copy of each such Safe Harbor Lease is on the standard Lease form approved by to Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than within ten (10) years, exclusive of renewal options or rights, which 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 initial term shall not exceed fifteen (15) years). Lender shall execute conditions set forth in this sentence and deliver a Subordination Non-Disturbance and Attornment Agreement in the form annexed hereto as Schedule IV to Tenants under future commercial Major Leases 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 Lenderdefinition of “Safe Harbor Lease” have been satisfied.
(b) Borrower (i) shall perform the obligations B. Lender agrees that for any proposed Lease 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 a proposed Lease after five (5) Business Days after its receipt thereof, together with any additional information 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 same.
C. With respect to each Lease, Borrowers:
(a) shall neither do, nor neglect to do, anything that may 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 done anything to impair the Leases; value of the Lease as security for the Secured Obligations;
(ii) shall enforce the obligations promptly send copies to be performed by the tenants; Lender of all written notices of default that Borrowers shall send or receive under any Lease;
(iii) shall promptly furnish enforce all of the terms, covenants and conditions contained in the Lease upon the part of the lessee or any other party that is not Borrowers thereunder to Lender any notice be observed or performed and shall not effect a termination or diminution of default or termination received by Borrower from any tenant, and any notice the obligations of default or termination given by Borrower to any tenant; tenants under Lease;
(iv) shall not collect any rents for rent under any Lease more than thirty one (301) days month in advance of the time when the same shall become due, except for bona fide (other than security deposits not in excess of an amount equal to two months rent; deposits);
(v) shall not enter into execute any ground Lease other assignment of Borrowers’ interest in the Leases or master Lease of any part of Revenue, except pursuant to the Property; Security Documents;
(vi) shall not further assign alter, modify or encumber change the terms of any Leaseguaranty of the Leases or cancel or terminate such guaranty without the prior written consent of Lender; and
(vii) shall notnot consent to any assignment of or subletting under the Lease not in accordance with their terms, except with Lender’s without the prior written consent, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 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 (cor at Lender’s option, be fully assignable to Lender) Within thirty (30) days after 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 Closing Dateforegoing. Upon the occurrence and during the continuance of any Event of Default, Borrower shall deliver Borrowers shall, upon Lender’s written request, if permitted by any applicable Legal Requirements, turn over to Lender the original 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 each Tenant Letter any Property, to be held by Lender subject to the terms of Creditthe Leases.
(i) Without limiting the generality of the foregoing, together (a) Borrowers shall notify Lender in writing of any cancellation penalties, termination fees or other consideration payable to Borrowers in connection with any cancellation, termination or surrender of any Lease (any such penalties or 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 surrender such Lease, but in any event prior to the payment by the applicable tenant under such Lease of any such Termination Fees to such Borrower and (b) Lender may, but shall not be required to, (i) require that such Borrowers deposits such Termination Fees into a blank assignment for each Tenant Letter reserve held by Lender or Servicer pursuant to a tenant improvement and leasing commissions reserve agreement, which agreement shall be in form and substance reasonably satisfactory to Lender, and (ii) impose such restrictions and conditions on the timing and amount of Credit disbursements of the Termination Fees from such reserve account as Lender may reasonably require. While , including, without limitation (x) requiring that (1) the space left vacant as a result of such cancellation, termination or surrender be relet to a tenant and under a Lease consented to by Lender unless such consent is either not required or deemed given in accordance with this Section 5.1.18 (any such Lease an “Approved Lease”), (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 such Approved Lease, (3) Borrowers provide to Lender a tenant estoppel certificate from the tenant under such Approved Lease in a form and in substance reasonably acceptable to Lender, and (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 accordance with such Approved Lease, and (y) limiting the amount of any such disbursement to the lesser of (1) the actual cost of re-tenanting such space and (2) the 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.
(ii) 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, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default existsexists 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 (a) at Borrower’s requestprovide Lender with a Rent Roll on an annual basis, promptly return each or any Tenant Letter of Credit certified by Borrowers to Borrower in order to allow Borrower to apply or realize upon Lender as true, correct and complete. Without limiting the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case provisions of this clause (b) Lender Section 5.1.18, the Rent Roll shall take include all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing AccountLeases whether or not evidenced by written instruments.
Appears in 1 contract
Sources: Loan Agreement (GTJ REIT, Inc.)
Leases. (a) 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 applicable Mortgaged Property, must provide for rental rates and other rental arrangements 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 apply to any renewal or amendment of any existing Lease which 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, in each case, to the extent the terms of such renewal or amendment are dictated by the provisions of such existing Lease. All new Leases must provide 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 subordination, non-disturbance and attornment agreement substantially in the form attached as Exhibit B to the Mortgage Loan Agreement and with such changes as may be commercially reasonably requested by Tenant. To the extent any such Tenant’s subordination and attornment obligations under any such new Lease are conditioned on the receipt of a subordination, non-disturbance and attornment agreement from Mortgage Lender, Borrower shall, or shall cause Property Owner to, pay all respects be approved by reasonable, out-of-pocket costs and expenses (including attorney’s fees) of Lender and Mortgage Lender incurred in connection with the preparation, negotiation, execution and delivery of such subordination, non-disturbance and attornment agreement.
(b) All new Leases which are Major Leases and all new TRS Leases, and all terminations, renewals and amendments of Major Leases or TRS Leases (other than in accordance with Section 2.4 hereof and of the Mortgage Loan Agreement), and any surrender of rights under any Major Lease or TRS Lease (other than in accordance with Section 2.4 hereof and of the Mortgage Loan Agreement), shall be on subject to the prior written consent of Lender, which consent, in the absence of a standard 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, a summary of the material economic terms thereof and 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 submission. For the avoidance of doubt, the deemed approval provision of the immediately preceding sentence shall not apply to 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 future Major Lease shall be subject to the approval of Lender, 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 previously approved attached as Exhibit B to the Mortgage Loan Agreement, with such changes as may be commercially reasonably requested by Lender with no material modifications Tenant and a fully executed copy thereof is delivered to Lender.
(except as approved by Lender). Such Lease form c) Borrower shall provide that cause Property Owner to (i) observe and perform (or cause to be observed and performed) in a commercially reasonable manner all the Lease is subordinate to material obligations imposed upon the Mortgage, lessor under the Leases and the TRS Lease; (ii) enforce in a commercially reasonable manner all of the tenant shall attorn 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 Lenderbe observed or performed, provided Lender has agreed 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 or, in the case of Leases which are not to disturb tenant’s occupancy of its leaseMaterial Leases, and if such termination would not have a Material Adverse Effect; (iii) that not collect any cancellation, surrender, of the rents thereunder more than one month in advance of its due date (other than security deposits held in accordance with the terms of this Agreement); (iv) not execute any assignment of lessor’s interest in the Leases or amendment TRS Leases or associated rents other than the assignments of such Lease rents and leases under the Mortgages; and (v) not cancel or terminate any guarantee of any of the Major Leases or TRS Leases without 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. 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) 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, 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 voidable 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). Within ten Borrower shall (10) days after or shall cause Property Owner or TRS Lessee to), upon Lender’s request, Borrower shall furnish provide Lender with evidence reasonably satisfactory to Lender a statement of all tenant security depositsBorrower’s, Property Owner’s and copies TRS Lessee’s compliance with the foregoing. During the continuance of all Leases not previously delivered any Event of Default, subject to Lender, certified by Borrower as being true and correct. Notwithstanding anything contained in the rights of Mortgage Lender under the Mortgage Loan Documents, Borrower shall (or shall cause Property Owner or TRS Lessee to), upon Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by request, deposit with Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 Eligible Account pledged 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 the aggregate security deposits of the Property; Tenants (viand any interest theretofore earned on such security deposits and actually received by Property Owner or TRS Lessee) shall which Property Owner or TRS Lessee had 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) any Lease termination or cancellation fees shall be paid returned 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease Tenants or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same applied in accordance with the terms of the applicable Lease. Any proceeds , and Lender shall hold such security deposits in a segregated account in accordance with the applicable Lease.
(e) Borrower shall provide a copy of such a draw shall be deposited in each notice of default or event of default delivered or received by Property Owner under the Clearing AccountTRS Leases.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (W2007 Grace Acquisition I Inc)
Leases. (a) All Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate Notwithstanding anything to the Mortgagecontrary herein, (ii) the tenant Mortgagor shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that enter into any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without LenderMortgagee’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant 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 Leasing Guidelines attached hereto as Schedule IV; (F) consent of Mortgagee and with any information requested by Mortgagee regarding the proposed Tenant thereunder, Mortgagee may declare each Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) yearsprior or subordinate to this Mortgage, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 Lenderat Mortgagee’s option.
(b) Borrower (i) shall Mortgagor shall, at its cost and expense, perform the obligations which Borrower is required to perform under the Leases; (ii) shall enforce the obligations each obligation to be performed by the tenantsLandlord under each Lease; (iii) shall promptly furnish to Lender any notice of default not borrow against, pledge 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 further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than thirty (30) days in advance of the time when the same shall become due, except for bona fide security deposits advance; and not in excess of an amount equal permit any Tenant to two months rent; (v) shall not enter into any ground assign its Lease or master Lease 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 part liability for performance of the Property; its obligations thereunder.
(vic) If any Tenant shall not further assign or encumber any default under its Lease; (vii) shall not, except with Lender’s prior written consentMortgagor shall, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent exercise sound business judgment with prudent property management practicesrespect to such default, but may not affecting discount, compromise, forgive or waive claims or discharge the economic terms Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease), and (ix) 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.
(cd) Within thirty (30) days after 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 Closing Datepart of Mortgagor to so perform, Borrower Mortgagee may, but shall deliver not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to Lender the original of each Tenant Letter of Creditrepay upon demand all sums incurred by Mortgagee in remedying any such failure, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain interest thereon from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of date incurred at the Default exists, Lender shall Rate (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that as defined in the case Loan Agreement).
(e) For purposes of this clause (b) Lender Mortgage, the following terms shall take all steps reasonably necessary to assist Borrower in connection with a draw upon have the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.following meanings:
Appears in 1 contract
Leases. (a) All Except as otherwise provided in this Agreement to the contrary, all Leases and other rental arrangements executed after the date hereof shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (the “Lease Form”) (except as approved by LenderLender not to be unreasonably withheld; provided, that, Lender shall not unreasonably withhold its consent to changes to the Lease Form). Such Lease form Form shall provide that (i) the Lease is subordinate to the Mortgage, and (ii) the tenant shall attorn to LenderLender following an Event of Default, provided provided, that the Lender has agreed delivered to the tenant a commercially reasonably form of non-disturbance and attornment agreement. To the extent required by applicable law, Borrower shall hold, in trust, all tenant security deposits in a segregated account and shall not to disturb tenant’s occupancy commingle any such funds with any other funds of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by LenderBorrower. Within ten (10) days Business 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease modifications or extensions or modifications if the following conditions are satisfied: :
(A) there exists no Default or Event of Default; Default has occurred and is continuing;
(B) the Lease is in effect as of the date of this Agreement or is on the standard Lease form approved by Lender Form with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, howeverthat, in no event shall there shall be no any material modification modifications to any provisions with regard to subordination and the subordination, attornment, estoppels estoppel clauses (other than to provide for the execution of a subordination, non-disturbance and other such certificates attornment agreement by Lender in the form attached hereto as Schedule IV) or “so-called” exculpation clauses that limit the landlord’s liability or indemnification clauses to the Landlord’s interest in the Property (including the proceeds thereof) without the prior written consent of Lender, which consent will not be unreasonably withheld;
(C) with respect to landlord without Lender’s prior written consent; the modifications of any Lease, such Lease and such modification(s) (Cw) is entered into in the ordinary course of business, consistent with prudent property management practices, (x) would not cause such Lease to constitute a Major Lease (subject to clause (z) below), (y) would not have a Material Adverse Effect and (z) if the Lease is a Major Lease, such modification constitutes a Non-Material Lease Modification;
(D) the Lease does not conflict with any restrictive covenant Operating Agreements affecting the Property or any other Lease for space in the Property; ;
(DE) the Lease is not and would not be, after any such extension or modification, a Major Lease; ;
(EF) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, rates and shall be an arms arm’s-length transaction and transaction, provided, that in no event shall the Lease be with an Affiliate of Borrower, and ;
(G) the Lease shall be established pursuant to not contain any options for renewal or expansion by the Leasing Guidelines attached hereto as Schedule IV; tenant at rental rates which are below reasonable comparable market levels for renewals or expansions at the time the Lease is executed;
(FH) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably reasonable judgment, has determined is creditworthycreditworthy taking into account the obligations of the landlord and the tenant thereunder; and
(G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (HI) the Lease is for a term of not more than ten fifteen (1015) years, years (exclusive of renewal options or rights, which together with the initial lease term shall not exceed fifteen twenty (1520) years). Lender shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement in the form annexed hereto as Schedule IV to Tenants under any future commercial Major Leases approved by Lender Lease demising in excess of 10,000 square feet 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 LeasesLeases in a commercially reasonable manner; (ii) shall enforce the obligations to be performed by the tenantstenants in a commercially reasonable manner; (iii) shall promptly furnish to Lender any notice of material default or termination received by Borrower from any tenanttenant whose Lease demises one floor or more at the Property, and any notice of material default or termination given by Borrower to any tenanttenant whose Lease demises one floor or more at the Property; (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 rentdeposits; (v) shall not enter into any ground Lease or master Lease lease of any part of the PropertyProperty (except for the Ground Lease); (vi) shall not further assign or encumber any Lease; (vii) shall not, except with Lender’s prior written consentconsent (which consent will not be unreasonably withheld and it shall be deemed reasonable for Lender to withhold its consent to any such Lease cancellation or acceptance of termination or surrender if after giving effect thereof, such cancellation, surrender or termination would cause an NOI Trigger Event to occur), cancel or accept surrender or termination of (A) any Lease other than a Major Lease unless such cancellation, termination or acceptance of surrender is entered into in the ordinary course of business, consistent with prudent property management practices or (B) any Major Lease, provided, that, the Borrower shall be permitted to accept such cancellation, surrender or termination of a Major Lease if such action is being taken in accordance with the express provisions of such Major Lease which is in existence as of the date of this Agreement, or has been approved by the Lender (such approval not to be unreasonably withheld) in accordance with the terms hereof or; provided, that, if no Cash Sweep Period is then in effect, such termination or surrender is contemporaneous with the releasing of the space demised under such Major Lease (or applicable portion thereof) at a rental rate equal to or greater than such Major Lease; (viii) shall not, except with Lender’s prior written consentconsent (such consent not to be unreasonably withheld), modify or amend any Lease unless such modification or amendment complies with the provisions of Section 4.1.9(a)(C) hereof, (except for minor modifications and amendments entered into in the ordinary course of businessix) shall deposit any Major Lease termination, consistent default or cancellation fees with prudent property management practicesLender, not affecting the economic terms of the Lease), to be held by Lender as Rollover Funds; and (ix) shall not enter into any Major Lease termination or cancellation fees shall without the prior written consent of Lender (such consent not to be paid to Lender and held in the Rollover Fundunreasonably withheld). Any action in violation of clauses (v), (vi), (vii), and (viii) or (ix) of this Section 4.1.9(b) shall be void as against Lender at the election of Lender.
(c) Within thirty (30) days after the Closing DateLender shall respond to a request for Lender’s approval to any Lease or other matter under Section 4.1.9 hereof delivered, Borrower shall deliver to Lender the original of each Tenant Letter of Creditif applicable, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms copies of the applicable lease documents, and, if applicable, a budget setting forth the applicable tenant improvement costs and leasing commissions for which Lender’s consent is required (i) within ten (10) Business Days after Borrower’s written request therefore, or (bii) at within five (5) Business Days after Borrower’s request, retain possession of each or any Tenant Letter of Creditwritten request therefore, provided, howeverthat, prior to such five (5) Business Day period Lender has approved all of the economic material terms of such Lease as set forth in a written summary thereof provided by Borrower to Lender. If the correspondence from Borrower requesting such approval contains the following statement at the top of the first page thereof in capitalized, bold faced, 14 point type stating that in “IF YOU FAIL TO RESPOND TO OR TO EXPRESSLY DENY THIS REQUEST FOR APPROVAL IN WRITING WITHIN TEN (10) or FIVE (5) BUSINESS DAYS (as the case of this clause (b) may be), YOUR APPROVAL SHALL BE DEEMED GIVEN,” and if Lender shall take all steps fail to respond to or to expressly deny such request for approval in writing (stating in reasonable detail the reason for such disapproval) within ten (10) or five (5) Business Days (as the case may be) after receipt of Borrower’s written request then Lender’s consent to the action or matter in question with respect to such Lease shall be deemed given. Borrower shall also provide any other information reasonably necessary to assist Borrower requested by Lender in writing in connection with a draw upon such Lease prior to the same in accordance with the terms of the applicable Lease. Any proceeds expiration of such a draw shall be deposited ten (10) or five (5) Business Day (as the case may be) period in order to adequately review the Clearing Accountsame.
Appears in 1 contract
Leases. (a) All Leases and other rental arrangements Borrower shall in all respects be approved by Lender not enter into or amend any Lease without Lender's prior written consent, and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn furnish to Lender, provided upon execution, a complete and fully executed copy of each Lease. Borrower shall provide Lender has agreed not to disturb tenant’s occupancy with a copy of its lease, and (iii) that any cancellation, surrender, or amendment of such each proposed Lease without requiring the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved with any information requested by Lender with no material modifications, except for commercially reasonable changes agreed to in regarding the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the proposed Tenant thereunder. Lender may declare each Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) yearsprior or subordinate to this Mortgage, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 at Lender's option.
(b) Borrower (i) shall shall, at its cost and expense, perform the obligations which Borrower is required to perform under the Leases; (ii) shall enforce the obligations each obligation to be performed by the tenantslandlord under each Lease; (iii) shall promptly furnish to Lender any notice of default not borrow against, pledge 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 further assign any rents or other payments due thereunder; not permit the prepayment of any rents or other payments due for more than thirty (30) days in advance of the time when the same shall become due, except for bona fide security deposits advance; and not in excess of an amount equal permit any Tenant to two months rent; (v) shall not enter into any ground assign its Lease or master Lease 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 part liability for performance of the Property; its obligations thereunder.
(vic) If any Tenant shall not further assign or encumber any default under its Lease; (vii) shall not, except with Lender’s prior written consentBorrower shall, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent exercise sound business judgment with prudent property management practicesrespect to such default, but may not affecting discount, compromise, forgive or waive claims or discharge the economic terms Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease), and (ix) any Lease termination or cancellation fees shall be paid to Lender and held in without 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 prior written consent of Lender.
(cd) Within thirty (30) days after If Borrower fails to perform any obligations of Borrower under any Lease or if Lender becomes aware of or is notified by any Tenant of a failure on the Closing Datepart of Borrower to so perform, Lender may, but shall not be obligated to, without waiving or releasing Borrower shall deliver from any obligation in this Agreement or any of the other Loan Documents, remedy such failure, and Borrower agrees to repay upon demand all sums incurred by Lender the original of each Tenant Letter of Creditin remedying any such failure, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain interest thereon from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of date incurred at the Default exists, Lender shall Rate (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that as defined in the case Note).
(e) For purposes of this clause (b) Lender Mortgage, the following terms shall take all steps reasonably necessary to assist Borrower in connection with a draw upon have the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.following meanings:
Appears in 1 contract
Leases. (a) All Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) The Property is not subject to any Leases other than the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its leaseSpecified Tenant Lease, and (iii) that any cancellation, surrender, or amendment the demised premises under the Specified Tenant Lease constitute the entirety of such Lease without the prior written consent Land and the Improvements. The initial term of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Specified Tenant Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant expire prior to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined date that is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial term shall not exceed fifteen (15) years)years following the First Amendment Date, subject to the rights of Specified Tenant under Section 13 of the Specified Tenant Lease. Lender shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement Specified Tenant is required to commence payment of base rental payments under the Specified Tenant Lease on the Commencement Date (as defined in the form annexed hereto Specified Tenant Lease), which is the date of mutual execution and delivery of the Specified Tenant Lease by Borrower and Specified Tenant (except during the Rent Abatement Period (as Schedule IV to Tenants under future commercial Major Leases approved by Lender promptly upon request with such commercially reasonable changes defined in the Specified Tenant Lease) as may be requested by Tenants, from time to time, and which are reasonably acceptable to Lenderexpressly set forth in Section 4(D) thereof).
(bii) With respect to each Lease (including, without limitation, the Specified Tenant Lease), (A) Borrower is the owner of landlord’s interest in such Lease, (iB) shall perform other than with respect to Permitted Encumbrances, no Person has any possessory interest in the obligations which 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 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 required in default thereunder, and to perform the knowledge of Borrower there are no defaults under the Leases; such Lease by any party thereto, (iiE) shall enforce the obligations no Revenue has been paid more than one (1) month in 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 has been accepted by the tenants; (iii) shall promptly furnish to Lender any notice of default or termination received by Borrower from any applicable tenant, and (G) any notice payments, free rent, partial rent, rebate of default rent or termination other payments, credits, allowances or abatements required to be given by Borrower to any tenant; tenant has already been received by such tenant (ivexcept, with respect to Specified Tenant only, the abatement
(g) shall not collect any rents for more than thirty (30Section 5.1.1(b)(i)(G) days in advance of the time when Loan Agreement is hereby deleted in its entirety from the same shall become due, except for bona fide security deposits not in excess of an amount equal Loan Agreement and replaced with the following provision: “cease to two months rent; (v) shall not enter into any ground Lease or master Lease of any part of operate the Property; , or permit the Property to cease to be operated, exclusively as a life sciences research related manufacturing and office facility together with other appurtenant and related uses (vi) shall not further assign or encumber other than temporary cessation in connection with any Lease; (vii) shall not, except with Lender’s prior written consent, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease continuous and diligent
1.1 (except for minor modifications the definitions of “Borrower Party”, “Complete”, “Master Lease”, “Master Lease Payments”, “Master Lease SNDA”, “Master Tenant” and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease“Third Party Sale”), and (ix) any Lease termination or cancellation fees shall be paid to Lender and held in the Rollover Fund. Any action in violation of clauses (vSection 2.1.6(x), (viSection 2.3.1(f), (viiSection 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 (viii) of this Section 4.1.9(b) shall be void at the election of LenderExhibit 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”.
(c) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 1 contract
Sources: Loan Agreement (Instil Bio, Inc.)
Leases. (a) All Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. Within ten (10) days after Lender’s request, Borrower shall furnish to Lender a statement of all tenant security deposits, and Administrative Agent with executed copies of all Major Leases, together with a detailed breakdown of income and cost associated therewith. All Leases not previously delivered 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 is appropriate for tenancy in a property of comparable quality and nature to Lenderthe applicable Property, certified by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall must provide for rental rates and landlord concessions comparable other economic terms which, taken as a whole, are at least equivalent to then-existing local market rates, based on the applicable market, and must contain terms and conditions that are commercially reasonable (in each case, unless Administrative Agent consents to such Lease in its sole discretion, unless with respect to any renewal or amendment, Borrower is obligated to execute and deliver the same pursuant to a Lease in effect as of the date hereof or entered into subsequent to the date hereof and in accordance with the terms hereof). All new Leases must provide that they are subject and subordinate to any current or future mortgage financing on the Properties and that the Tenants agree to attorn to any foreclosing mortgagee at such mortgagee’s request. Upon Borrower’s request, at Borrower’s sole cost and expense, Administrative Agent, on behalf of Lender, shall be an arms length transaction and reasonably promptly (but in no event be with an Affiliate of later than 10 Business Days following Borrower, and shall be established pursuant ’s request therefor as long as the Required Lenders have given a direction to the Leasing Guidelines attached hereto as Schedule IV; (FAdministrative Agent before such time) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial term shall not exceed fifteen (15) years). Lender shall execute and deliver a Subordination Subordination, Non-Disturbance and Attornment Agreement to the Tenant of any future Lease, in substantially the form annexed attached hereto as Schedule IV to Tenants under future commercial Major Leases approved by Lender promptly upon request Exhibit C and with such commercially reasonable changes as may be reasonably requested by Tenants, Tenant from time to time, and which are reasonably acceptable to Lender.
(b) All Leases executed after the date hereof which are Major Leases, and all terminations (other than as a result of a material default by the Tenant thereunder), renewals (other than as required pursuant to any Major Lease) and material amendments of Major Leases (other than as required pursuant to any Major Lease), and any surrender of landlord’s material rights under any Major Lease, shall be subject to the prior written consent of Administrative Agent, which consent shall be granted or withheld at the direction of the Required Lenders and, 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 Administrative Agent in an envelope marked “URGENT — LENDER’S ATTENTION REQUIRED WITHIN 10 BUSINESS DAYS”, together with a copy of the proposed Lease, a summary of the material economic terms thereof and any termination and other material 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 Administrative Agent shall not have notified the Borrower in writing of its disapproval within 10 Business Days after receipt of such submission. Notwithstanding the foregoing, the deemed approval provision of the immediately preceding sentence shall not apply to any Operating Lease or any amendment thereof.
(c) Borrower shall (i) shall observe and perform in a commercially reasonable manner all the material obligations which Borrower is required to perform imposed upon the lessor under the Leases; (ii) shall enforce in a commercially reasonable manner all of the obligations material terms, covenants and conditions contained in the Leases on the part of the lessee thereunder to be performed observed or performed, short of termination thereof, except that Borrower may terminate any Lease following a material default thereunder by the tenantsrespective Tenant or, in the case of Leases which are not Material Leases, if such termination would not have a Material Adverse Effect; (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 of the rents for thereunder more than thirty (30) days one month in advance of the time when the same shall become due, except for bona fide its due date (other than 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of this Agreement); (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 Mortgage; and (v) not cancel or terminate any guarantee of any of the Major Leases without the prior written consent of Administrative Agent, which consent shall be granted or withheld at the direction of the Required Lenders and, in the absence of a continuing Event of Default, shall not be unreasonably withheld, delayed or conditioned. Any request for Administrative Agent’s consent pursuant to this Section 5.7(c)(v) shall be submitted to Administrative Agent in an envelope marked “URGENT — LENDER’S ATTENTION REQUIRED WITHIN 10 BUSINESS DAYS”, together with a detailed description of the request for which Administrative Agent’s consent is sought and any documentation needed for Administrative Agent to evaluate such request, and shall be deemed approved if Administrative Agent shall not have notified Borrower in writing of its disapproval thereof and the reasons for such disapproval within five Business Days after Borrower shall have given Administrative Agent written notice confirming that at least ten Business Days have elapsed since such submission, which written notice shall be submitted to Administrative Agent in an envelope marked “URGENT — SECOND AND FINAL NOTICE — LENDER’S ATTENTION REQUIRED BY [DATE]”).
(d) 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 at such commercial or savings bank or banks as may be reasonably acceptable to Administrative Agent and Borrower’s rights thereto pledged to Collateral Agent. Any bond or other instrument which Borrower is permitted to hold in lieu of cash security deposits under any applicable lease 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 acceptable to Administrative Agent, shall (if not prohibited by any Legal Requirements) name Collateral Agent as payee or mortgagee for the benefit of Lender thereunder (bor be fully assignable to Collateral Agent for the benefit of Lender) at Borroweror may name Borrower as payee thereunder so long as such bond or other instrument is pledged to Collateral Agent as security for the Indebtedness and shall, in all respects, comply with any applicable Legal Requirements and otherwise be reasonably acceptable to Administrative Agent. Borrower shall, upon Administrative Agent’s request, retain possession provide Administrative Agent with evidence reasonably acceptable to Administrative Agent of each Borrower’s compliance with the foregoing. During the continuance of any Event of Default, Borrower shall, upon Administrative Agent’s request, deposit with Collateral Agent in a segregated Eligible Account pledged to Collateral Agent for the benefit 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 had not returned to the applicable Tenants or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same applied in accordance with the terms of the applicable Lease, and Collateral Agent shall hold such security deposits in a segregated account in accordance with the applicable Lease.
(e) Notwithstanding anything to the contrary contained in this Section 5.7, neither (i) the failure to pay rent or any other amounts under any Operating Lease as a result of the Lessee Borrower under such Operating Lease having insufficient funds to pay such rent or other amounts nor (ii) the failure to observe any non-monetary covenants or obligations under any Operating Leases (except, in the case of (ii) only, to the extent that such failure would result in a Material Adverse Effect or otherwise impair the value of the Lease as Collateral) shall result in a breach, Default or Event of Default under this Agreement or any of the other Loan Documents. Any proceeds Lessee Borrower hereby agrees that the failure by the lessor under any Operating Lease to enforce any provision thereof (including, without limitation, the obligation to pay rent or any other amounts due under any Operating Lease), or any waiver of any provision of any Operating Lease by the lessor thereunder, shall not constitute a waiver of such provision by Administrative Agent or Lender and, upon a draw foreclosure of any Collateral subject to such Operating Lease, all such provisions shall be deposited remain in the Clearing Accountfull force and effect and enforceable against Lessee Borrower by Administrative Agent, Lender or its designee.
Appears in 1 contract
Sources: Loan Agreement (American Casino & Entertainment Properties LLC)
Leases. (a) All Subject to the conditions set forth below, MONY shall assign all of the Leases and other rental arrangements listed on Schedule 5.14 hereto (the "Assigned Leases") to AUSA Life, or, at the option of AUSA Life, shall in all respects be approved by Lender and enter into subleases with respect to such Assigned Leases (the "Subleases") with AUSA Life, which Subleases shall be on a standard Lease in form previously approved by Lender with no material modifications (except as approved by Lender)and substance reasonably satisfactory to MONY and AUSA Life. Such Lease form MONY shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for use commercially reasonable changes agreed efforts to obtain and deliver to AUSA Life consents and estoppel certificates from the landlords of each of the Assigned Leases, such estoppel certificates and consents to be in the ordinary course of Borrower’s business, form and substance reasonably acceptable to AUSA Life; provided, however, there that AUSA Life shall be no material modification to any provisions cooperate with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, MONY in its professional and commercially reasonably judgmentefforts to obtain such documents, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion including by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases approved by Lender promptly upon request with such commercially providing reasonable changes as may be requested by Tenants, from time to time, and which are reasonably acceptable to Lenderfinancial information concerning AUSA Life.
(b) Borrower (i) In addition to the foregoing, MONY shall perform cooperate with AUSA Life in an attempt to obtain from 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 landlords 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 Leased Real Property amendments of the Property; Assigned Leases amending any of the material terms of such Leases which are not reasonably acceptable to AUSA Life.
(vic) Prior to Closing, MONY 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into operate the Leased Real Property relating to the Assigned Leases in the ordinary course of business, consistent including without limitation, compliance in all material respects with prudent property management practicesthe terms of all Leases, not affecting service contracts, mortgages or other contractual obligations relating to such Leased Real Property.
(d) At the economic time of the Closing, any work required to be performed by MONY pursuant to written notice received by MONY from any public authority or under the terms of the Lease), and (ix) Leases or the Service Contracts with respect to any Lease termination or cancellation fees shall be paid Leased Real Property 103 which relates 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same Assigned Leases will have been completed in accordance with the terms of the applicable lease or (b) at Borrower’s requestplans and specifications thereto, retain possession of each or any Tenant Letter of Creditif any, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Accountand fully paid for by MONY.
Appears in 1 contract
Sources: Asset Transfer and Acquisition Agreement (Mony Holdings LLC)
Leases. (a) All Leases Prior to the Closing, Sellers shall use commercially reasonable efforts (but without any obligation to pay any money or other consideration) to obtain and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that deliver to Buyers (i) estoppel certificates from each counterparty under the Lease Real Property Leases and Third Party Leases, substantially in the form required by the applicable lease or, if no form is subordinate provided for, in a form mutually agreeable to the MortgageParties (each, a “Lease Estoppel”), and (ii) to the tenant shall attorn to Lenderextent reasonably requested by Buyers, provided Lender has agreed not to disturb tenant’s occupancy of its lease, Subordination and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. Within ten (10) days after Lender’s request, Borrower shall furnish to Lender a statement of all tenant security deposits, Non-Disturbance Agreements from third party landlords and copies of all Leases not previously delivered to Lender, certified by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses their lenders with respect to landlord without Lender’s prior written consent; the Leased Real Properties, in a form mutually agreeable to the Parties (C) the each, an “SNDA”). Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, Estoppels shall be an arms length transaction and in dated no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 prior to the time when Closing Date; provided, however, that Sellers shall be obligated for any amounts required by 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the LeaseReal Property Leases to be paid by the signatories to the Lease Estoppels and SNDAs.
(b) Notwithstanding anything to the contrary set forth herein, if, despite the exercise of commercially reasonable efforts, any Seller is unable to obtain any Lease Estoppel for any reason (including if Seller obtains a Lease Estoppel from any tenant but reasonably believes any disclosure on such Lease Estoppel is inaccurate), then Sellers shall deliver to Buyers an estoppel certificate with respect to the applicable Real Property Lease or Third Party Lease, in a form reasonably acceptable to Buyers (each, a “Seller Estoppel”) and, in the case of any Seller Estoppel that Sellers deliver to Buyers due to a reasonable belief that any disclosure on the Lease Estoppel received for the applicable Station Property is inaccurate, Sellers shall inform Buyers of such belief and (ix) issue. Delivery of a Seller Estoppel for a Station Property shall not waive or limit any indemnification rights that any Buyer Indemnified Party has pursuant to Section 8.2 in respect of any breach or violation of or default under the applicable Real Property Lease termination or cancellation fees Third Party Lease; provided, however that to the extent a Lease Estoppel is obtained and delivered with respect to any Leased Real Property following the delivery of the Seller Estoppel, such Seller Estoppel shall be paid of no further force or effect for any purpose under this Agreement with respect 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 Lendersuch Leased Real Property.
(c) Within thirty Subject to Section 5.13(b), (30i) days after no Lease Estoppel will be acceptable if it reflects any fact or circumstance that is not consistent in all material respects with or reflected in this Agreement or any representation or warranty by Sellers hereunder (including, without limitation, in any Ancillary Agreements) and (ii) no Seller Estoppel will be acceptable if it reflects any fact or circumstance that is not consistent in all material respects with or reflected in this Agreement or any representation or warranty by Sellers hereunder (including, without limitation, in any Ancillary Agreements) (each such fact or circumstance described in the Closing Dateforegoing clauses (i) and (ii), Borrower shall deliver an “Objectionable Disclosure”) or if it reflects or discloses any actual material uncured breach or default by any Seller under a Real Property Lease or Third Party Lease that has not previously been disclosed to Lender Buyers. To the original of each Tenant Letter of Creditextent a Lease Estoppel or Seller Estoppel discloses an actual or alleged breach or default by a Seller under a Real Property Lease or Third Party Lease, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower Sellers shall use commercially reasonable efforts to obtain from commence curing such matter, if and to the Issuing Bank its consent extent curable, not later than delivery to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms Buyers of the applicable lease Lease Estoppel or (b) at Borrower’s requestSeller Estoppel, retain possession of each and shall thereafter use commercially reasonable efforts to complete such cure prior to the Closing. In the event Sellers fail to cure such breach or any Tenant Letter of Credit, provided, however, that default prior to the Closing as provided in the case preceding sentence, and/or in the event Buyers disapprove of this clause any Objectionable Disclosure disclosed by any Lease Estoppel or Seller Estoppel, then, at Buyers’ option, exercisable by written notice to Sellers prior to the consummation of the Closing, (bA) Lender shall take all steps the Purchase Price will be reduced by an amount reasonably necessary to assist Borrower cure the applicable breach or default, such amount to be mutually agreed upon in connection with good faith by Buyers and Sellers, or (B) Buyers may elect to proceed to the Closing without a draw upon the same in accordance with the terms reduction of the applicable Lease. Any proceeds Purchase Price and bring a claim for indemnification pursuant to Section 8.2(d) for (1) the actual documented out-of-pocket Losses, if any, suffered, sustained, incurred or required to be paid at any time from and after the Closing by any Buyer Indemnified Party to the extent based upon, arising out of, resulting from or because of such a draw shall be deposited uncured breach or default, plus (2) the Assigned Drop Value assigned to the applicable Station Property on Schedule 2.7 in the Clearing Accountevent the applicable Real Property Lease or Third Party Lease is terminated following the Closing as a result of such uncured breach or default.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sunoco LP)
Leases. 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 the prior written approval of Buyer (a) All Leases and other rental arrangements shall than consents to assignment or subleasing which in all respects Seller’s reasonable judgment are required to be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form granted under the applicable Lease, provided that Seller shall provide that (i) 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 Lease is subordinate to Leases including commencing any legal action against a tenant or applying any security deposits or draw upon letters of credit, as applicable, without the Mortgageprior written consent of Buyer, (ii) the tenant shall attorn to Lenderwhich may be withheld in Buyer’s sole discretion, provided Lender has agreed not to disturb tenant’s occupancy that Seller may draw down a letter of its lease, credit any amount of rent in default past any applicable notice and (iii) that any cancellation, surrender, or amendment of such cure period under the applicable Lease without the prior written consent of Lender Buyer provided that Seller shall be voidable by Lenderprovide Buyer with notice of any such draw down at least 2 Business Days prior to the expiration of the Review Period. Within ten 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 (105) business days after Lenderof receipt. Buyer’s requestfailure to expressly approve or disapprove of any such proposed Lease modification, Borrower amendment, termination, expansion, renewal, assignment or sublease or exercise of remedies within said five (5) business day period 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. Notwithstanding anything contained in the Loan Documents, Lenderconclusively constitute Buyer’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial term shall not exceed fifteen (15) years)same. Lender shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement in the form annexed hereto as Schedule IV to Tenants under future commercial Major Leases 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing Date, Borrower Seller shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s requestBuyer, promptly return each 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 Tenant Letter Lease modification, amendment or lease assignment entered into with Buyer’s consent between the date hereof and the Close of Credit to Borrower in order to allow Borrower to apply or realize upon the same Escrow in accordance with this Section 7.3 and which first become due following the terms Close of Escrow, such obligation to survive the applicable lease or (b) at Borrower’s request, retain possession Close of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing AccountEscrow.
Appears in 1 contract
Sources: Purchase and Sale Agreement (CIM Commercial Trust Corp)
Leases. (a) All a. Borrower shall not enter into any new Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) or renewals of any Leases now existing or executed after the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease date hereof without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in provided that the Loan Documents, Lender’s approval foregoing shall not be required for future apply to the Existing Leases or Lease extensions or modifications if other than the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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) 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 tenantsTenants thereunder; (iii) shall promptly furnish to Lender any notice of default or termination received by Borrower from any tenantTenant, and any notice of default or termination given by Borrower to any tenantTenant; (iv) shall not collect any rents Rents for more than thirty one (301) days month 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 (2) 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 LeaseLease or the Rents (except as contemplated by the Loan Documents); (vii) shall not, except with Lender’s 's prior written consent, cancel or accept surrender or termination of any LeaseLease not permitted by the terms thereof; and (viii) shall not, except with Lender’s 's prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) any Lease termination or cancellation fees shall be paid to Lender and held in the Rollover Fund. Any action in violation of clauses clause (v), (vi), (vii), and ) or (viii) of this Section 4.1.9(b4.1.10(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 or sublease of the Major Lease (cexcept 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 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 review of any proposed Lease, any other matter requiring Lender's consent under this Section 4.1.10 or execution and delivery of any subordination, non-disturbance and attornment agreement in accordance with this Section 4.1.10.
f. Within thirty ten (3010) days after the Closing DateLender's request, Borrower shall deliver 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 other form, shall 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 Borrower's control with Lender. After the original occurrence of each Tenant Letter an Event of CreditDefault, together with 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 blank assignment Lease should become the subject of any proceeding under the Federal Bankruptcy Code or any other federal, state, or local statute that provides for each Tenant Letter the possible termination or rejection of Credit the Lease, Borrower covenants and agrees that in the event the Lease is so rejected, no damage settlement shall be made without the prior written consent of Lender;
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 the Borrower and Lender;
iii. Borrower hereby assigns any such payment to Lender and further covenants and agrees that upon request of Lender, it will duly endorse to the order of Lender any such check, the proceeds of which will be applied to any portion of the indebtedness secured by the Security Instrument in such manner as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Accountelect.
Appears in 1 contract
Leases. (a) Prior to execution of any Leases of space in the Improvements after the date hereof, Borrower shall submit to Lender, for L▇▇▇▇▇’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 and other rental arrangements shall of space in all respects be approved by Lender and the Improvements or at the Property shall be on a standard Lease form previously approved by Lender terms consistent with no material modifications (except as approved by Lender)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 Lease form Leases shall also provide that (i) the Lease is subordinate 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 Mortgageexecution thereof, (ii) any proposed Lease of the tenant Improvements or any portion thereof that differs materially and adversely from the aforementioned form Lease. Borrower shall attorn to Lendernot execute any Lease for all or a substantial portion of the Property, provided Lender has agreed not to disturb tenant’s except for an actual occupancy of its leaseby the Tenant, lessee or licensee thereunder, and (iii) that any cancellation, surrendershall at all times promptly and faithfully perform, or amendment cause to be performed, all of such Lease without the prior written consent covenants, conditions and agreements contained in all Leases with respect to the Property, now or hereafter existing, on the part of Lender shall the landlord, lessor or licensor thereunder to be voidable by Lenderkept and performed. Within ten (10) days after Lender’s request, Borrower shall furnish to Lender, within sixty (60) days after a request by Lender to do so, but in any event by January 1 of each year, a statement of all tenant security deposits, and copies of all Leases not previously delivered to Lendercurrent Rent Roll, certified by Borrower as being true and correct. Notwithstanding anything contained in , containing the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event names of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses all Tenants with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) , the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of their respective Leases, the Lease), spaces occupied and (ix) any Lease termination the rentals or cancellation fees shall be paid to Lender payable thereunder and held in the Rollover Fundamount of each Tenant’s security deposit. Any action in violation Upon the request of clauses (v), (vi), (vii), and (viii) of this Section 4.1.9(b) shall be void at the election of Lender.
(c) Within thirty (30) days after the Closing DateL▇▇▇▇▇, Borrower shall deliver to Lender the original a copy of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably requiresuch Lease. While any Event of Default exists, Borrower shall use commercially reasonable efforts not do or suffer to obtain from be done any act, or omit to take any action, that might result in a default by the Issuing Bank its consent landlord, lessor or licensor under any such Lease or allow the Tenant thereunder to an assignment withhold payment of rent or cancel or terminate same and shall not further assign any 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 Tenant Letter and every condition and covenant of Credit 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 Lender. Provided no Event of Default existstime, Lender shall be entitled to, and Borrower hereby grants to Lender the right to, undertake any and all action as may be required (ain the sole discretion of Lender) at Borrower’s requestto cure any default, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance event which with the terms 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 applicable lease Leases, terminate or accept the surrender of any Leases, waive or release any other 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) at Borrower’s requestEach Lease executed after the date hereof affecting any of the Premises or the Improvements must provide, retain possession in a manner approved by L▇▇▇▇▇, that the Tenant will recognize as its landlord, lessor or licensor, as applicable, and attorn to any person succeeding to the interest of each Borrower upon any foreclosure of this Deed of Trust or any deed in lieu of foreclosure. Each such Lease shall also provide that, upon request of said successor-in-interest, the Tenant Letter of Credit, shall execute and deliver an instrument or instruments confirming its attornment as provided for in this Section; provided, however, that neither L▇▇▇▇▇ nor any successor-in-interest shall be bound by any payment of rent for more than one (1) month in advance, or any amendment or modification of said Lease made without the express written consent of Lender or said successor-in-interest.
(c) 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 L▇▇▇▇▇ shall be entitled to take actual possession of, the Property or any part thereof personally, or by its agent or attorneys. In such event, Lender shall have, and Borrower hereby gives and grants to Lender, the right, power and authority to make and enter into Leases with respect to the Property or portions thereof for such rents and for such periods of occupancy and upon conditions and provisions as Lender may deem desirable in its sole discretion, 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 be revocable by Borrower so long as any portion of the Debt is outstanding, shall 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, Lender shall not be liable for any loss sustained by Borrower resulting from any failure to let the Property, or 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 any obligation, duty or liability under any Lease covering the Property or any part thereof or under or by reason of this instrument or 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 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 court of competent jurisdiction to have resulted solely from the gross negligence or willful misconduct of Lender. Should Lender incur any such liability, the amount thereof, including, without limitation, costs, expenses and reasonable attorneys’ fees, together with interest thereon at the Default Interest Rate from the date incurred by L▇▇▇▇▇ until actually paid by Borrower, shall be immediately due and payable to Lender by Borrower on demand and shall be secured hereby and by all of the 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 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 case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms management, upkeep, repair or control of the applicable LeaseProperty. Any proceeds Borrower hereby assents to, ratifies and confirms any and all actions of such a draw shall be deposited in Lender with respect to the Clearing AccountProperty taken under this Section.
Appears in 1 contract
Sources: Deed of Trust, Security Agreement and Fixture Filing (NNN Apartment REIT, Inc.)
Leases. (a) All Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) Trustor shall provide Beneficiary with true, correct and complete copies of all material Leases, together with such other information relating to the Leases, as the Lenders shall reasonably request. Except as otherwise permitted under the Credit Agreement, Trustor shall not accept prepayments of rent for any period in excess of three (3) months and shall perform all covenants of the lessor under all Leases affecting the Trust Estate. Leases, as used herein, includes any extensions or renewals thereof and any amendments thereto. Trustor shall perform and carry out all of the provisions of the Leases to be performed by Trustor and shall appear in and defend any action in which the validity of any Lease is subordinate at issue and commence and maintain any action or proceeding necessary to establish or maintain the Mortgage, validity of any lease and to enforce the provisions thereof.
(ii) If a leasehold estate constitutes a portion of the tenant shall attorn to LenderTrust Estate, provided Lender has agreed then, except as otherwise permitted under the Credit Agreement, Trustor agrees not to disturb tenant’s occupancy of its leaseamend, and (iii) that change, terminate or modify such leasehold estate or any cancellation, surrender, or amendment of such Lease interest therein without the prior written consent of Lender the Lenders. Consent to one amendment, change, agreement or modification shall not be voidable deemed to be a waiver of the right to require consent to other, future or successive amendments, changes, agreements or modifications. Trustor agrees to perform all obligations and agreements under said leasehold and shall not take any action or omit to take any action which would affect or permit the termination of said leasehold. Trustor agrees to promptly notify Beneficiary’ in writing with respect to any default or alleged default by Lender. Within ten (10) days after Lender’s request, Borrower shall furnish any party thereto and to Lender a statement of all tenant security deposits, and deliver to Beneficiary copies of all Leases not previously delivered to Lendernotices, certified demands, complaints or other communications received or given by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses Trustor with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension default or modification, a Major Lease; (E) alleged default. Beneficiary shall have the Lease shall provide for rental rates option to cure any such default and landlord concessions comparable to existing local market rates, perform any or all of Trustor’s obligations thereunder. All sums expended by Beneficiary in curing any such default shall be an arms length transaction and in no event be with an Affiliate of Borrower, secured hereby and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease immediately due and payable without demand or notice and shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right bear interest from date of renewal, extension or expansion by tenant expenditure at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 LenderAgreed Rate.
(biii) Borrower (i) shall perform Subject to the obligations which Borrower is required to perform Credit Agreement and except as otherwise permitted 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 tenantCredit Agreement, 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 each Lease of any part portion of the Property; (vi) Trust Estate shall not further assign or encumber any Lease; (vii) be absolutely subordinate to the lien of this Deed of Trust, but shall not, except with Lender’s prior written consent, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in contain a provision satisfactory to the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease)Lenders, and (ix) in any event, each tenant thereunder, by virtue of executing a Lease termination or cancellation fees shall be paid to Lender and held in covering 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each Premises or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s requestportion thereof, retain possession of each or any Tenant Letter of Credit, provided, howeverhereby agrees, that in the case event of this clause (b) Lender the exercise of the private power of sale or a judicial foreclosure hereunder, such Lease, at the option of the purchaser at such sale, shall take all steps reasonably necessary not be terminated and the tenant thereunder shall attorn to assist Borrower in connection with such purchaser and, if requested to do so, shall enter into a draw new Lease for the balance of the term of such Lease then remaining upon the same in accordance terms and conditions. Each such Lease shall, at the request of the Lenders, be assigned to Beneficiary upon the Lender’s approved form, and each, such assignment shall be recorded and acknowledged by the tenant thereunder. Concurrently with the terms execution of any and all Leases executed after the applicable Lease. Any proceeds date hereof, Trustor shall cause the tenants thereunder to execute a subordination, non-disturbance and attornment agreement in favor of Beneficiary in form and substance satisfactory to the Lenders and immediately thereafter deliver such a draw shall be deposited in the Clearing Accountagreement to Beneficiary.
Appears in 1 contract
Sources: Credit Agreement (Cadiz Inc)
Leases. Borrower shall not execute (aor permit Mortgage Borrower or Maryland Owner to execute) All Leases any Lease for all or any portion of any Individual Property (a “New Lease”), except for the Master Lease, the Operating Lease and other rental arrangements any Non-Material Lease, without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Borrower shall cause to be performed at all times promptly and faithfully in all material respects and subject to any grace and cure periods set forth therein, if any, all of the material covenants, conditions and agreements contained in the Master Lease, now or hereafter existing, on the part of the landlord and tenant thereunder to be approved kept and performed. Borrower shall not permit Mortgage Borrower or Maryland Owner to do or cause to be done or to be suffered to be done any act that would reasonably be expected to result in a default by Lender and Mortgage Borrower or Maryland Owner under the Master Lease, a default by Master Tenant under any Operating Lease or permit the Master Tenant or the Operator thereunder to withhold any payment of Rent and, shall be on a standard not assign, sublet or otherwise Transfer, except for Permitted Encumbrances, or permit the assignment, sublet or other Transfer of, the Master Lease form previously approved by Lender with or the Operating Lease or any Rents thereunder or other payments. Borrower, at no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn cost or expense to Lender, provided Lender has agreed not shall cause to disturb tenant’s occupancy be performed and observed each and every material condition and covenant under the Master Lease to be performed or observed by the landlord thereunder and enforce (short of termination) the performance and observance by Master Tenant of each and every material condition and covenant under the Master Lease to be performed or observed by the tenant thereunder, and shall, through the exercise of its leaserights under the Master Lease, cause the Master Tenant to enforce (short of termination) the performance and (iii) that any cancellationobservance by the Operator of each and every material covenant and condition under the Operating Lease to be performed by the tenant thereunder. Borrower shall not, surrender, or amendment of such Lease without the prior written consent of Lender Lender, permit the modification, amendment, supplement or restatement of the Master Lease or the Operating Lease (provided, however, that an Operating Lease may be terminated and/or surrendered and the Master Lease may be amended to reflect same solely in connection with a Permitted Release, Unlicensed Facility Release, Affected Property Release, Limited Cure Release or substitution of an Individual Property pursuant to Sections 2.6, 5.1.28, 6.4(d), 8.1(c) and 2.5 of the Mortgage Loan Agreement, respectively and pursuant to Sections 2.6, 5.1.33, 8.1(c) and 2.5 hereof), or permit the termination or surrender of the Master Lease or the Operating Lease, or permit the release or waiver of the Master Tenant or the Operator from the performance or observance of any material obligation or condition under the Leases (other than Non-Material Leases), and at all times during the term of the Loan, and each Operator shall be voidable by Lenderguaranty the payment obligations of each other Operator under its respective Operating Lease. Within ten (10) days after Lender’s requestExcept with respect to occupancy or residency agreements for residents at the Facilities and Non-Material Leases, Borrower shall furnish not permit the prepayment of any rents under the Leases for more than one (1) month prior to the due date thereof. Notwithstanding the foregoing, Lender a statement shall not unreasonably withhold its consent to any modification, amendment or waiver of all tenant security depositsany provision of an Operating Lease or the Master Lease as may be reasonably necessary to comply with the requirements of this Agreement, and copies any other Loan Document or any Mortgage Loan Document, any Legal Requirement or Health Care Requirement, or that makes the provisions of all Leases not previously delivered to Lenderthe Operating Lease and/or the Master Lease consistent with the provisions of this Agreement, certified by Borrower as being true and correctany other Loan Document or any Mortgage Loan Document. Notwithstanding anything contained in this Section 5.1.22 to the Loan Documentscontrary, (a) Lender’s approval consent to any material amendment, modification, supplement or restatement of the Master Lease shall not also be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: conditioned on (A) there exists no Default or Event of Default; (B1) the delivery by Borrower of an Additional Insolvency Opinion and an Additional True-Lease is on the standard Lease form approved by Opinion acceptable to Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C2) the Lease does not conflict with any restrictive covenant affecting satisfaction of the Property or any other Lease for space in the Property; (D) the Lease is not applicable REIT Representations and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable Covenants related to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of BorrowerLeases, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 Lender’s consent to (i) shall perform the obligations which Borrower is required to perform under the any New Lease other than Non-Material Leases; , (ii) shall enforce the obligations to be performed by the tenants; any assignment of any Lease (or of any interest therein) or (iii) shall promptly furnish to Lender any notice material amendment, material modification, material supplement or material restatement 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications other than Non-Material Leases) shall also be conditioned on (1) the delivery by Borrower of an Additional Insolvency Opinion and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) any an Additional True-Lease termination or cancellation fees shall be paid Opinion acceptable to Lender and held in (2) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms satisfaction of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary REIT Representations and Covenants related to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing AccountLeases.
Appears in 1 contract
Sources: Loan Agreement (Hcp, Inc.)
Leases. (a) Borrower shall furnish Lender with executed copies of all Leases. All new Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that renewals or amendments of Leases must (i) the Lease be entered into on an arms-length basis with Tenants that are not affiliates of Borrower and whose identity and creditworthiness is subordinate to the Mortgageappropriate 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 tenant 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 Security Instrument and contain provisions for the agreement by the Tenant thereunder to attorn to Lender and any purchaser at a foreclosure sale, 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 attorn 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, provided Lender has agreed with respect to any Lease entered into after the Closing Date that expressly requires the delivery of a subordination, attornment and non-disturbance agreement.
(b) Any Lease that does not conform to disturb tenant’s occupancy of its lease, and (iiithe standards set forth in Section 5.7(a) that any cancellation, surrender, or amendment of such Lease without 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 (excluding renewals pursuant to the terms of a Lease) and amendments of Major Leases, and any surrender of rights under any Major Lease, shall be subject to the prior written consent of Lender. If Lender shall be voidable by Lender. Within fail to respond to Borrower's request for such consent within ten (10) days after Business Days of Lender’s request's receipt of such request accompanied by a comprehensive term sheet and reasonably detailed financial information about the proposed Tenant (to the extent available from such Tenant), Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that "LENDER'S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN FIVE BUSINESS DAYS SHALL BE DEEMED LENDER'S APPROVAL", provided that if Lender has reasonably requested any additional information with respect to the Tenant (and such information is possessed by or available to Borrower), Borrower shall furnish not have the right to send any such second request unless and until Borrower shall have delivered to Lender a statement such additional information. In the event Lender fails to approve or disapprove such request within five (5) Business Days after Lender's receipt of all tenant security depositssuch second request, and copies of all Leases not previously delivered to Lender, certified by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there such request shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 Lenderdeemed approved.
(bc) Borrower shall (i) shall observe and punctually perform all the material obligations which Borrower is required to perform imposed upon the lessor under the Leases; (ii) shall enforce all of the obligations material terms, covenants and conditions contained in the Leases on the part of the lessee/tenant thereunder to be performed observed or performed, short of termination thereof, except that Borrower may terminate any Lease following a material default thereunder by the tenantsrespective Tenant; (iii) shall promptly furnish to Lender not collect any notice of default or termination received by Borrower from any tenant, and any notice of default or termination given by Borrower to any tenantthe rents thereunder more than one month in advance; (iv) shall not collect execute any assignment of lessor's/landlord's interest in the Leases or associated rents for more other than thirty (30) days in advance the assignment of rents and leases under the time when the same shall become due, except for bona fide security deposits not in excess of an amount equal to two months rentSecurity Instrument; (v) shall not enter into cancel or terminate any ground Lease or master Lease guarantee of any part of the Property; (vi) shall not further assign or encumber any Lease; (vii) shall notMajor Leases without the prior written consent of Lender, except with to the extent expressly provided for under such Major Lease which has been reviewed and approved by Lender’s , either prior written consent, cancel to the date hereof or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same thereafter in accordance with the terms hereof; and (vi) not permit any subletting of any space covered by a Lease or an assignment of the applicable lease 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) 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 identify all security deposits of Tenants separate and apart from any other payments received from Tenants. Subject to Legal Requirements, any bond or (b) at Borrower’s 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 bond or other instrument as security for the Indebtedness. Upon the occurrence of an Event of Default, Borrower shall, upon Lender's request, retain possession deposit with Lender in an Eligible Account pledged to Lender an amount equal to the aggregate security deposits of each or the Tenants (and any Tenant Letter of Creditinterest theretofore earned on such security deposits and actually received by Borrower), provided, howeverand any such bonds, that in Borrower had not returned to the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same applicable Tenants or applied in accordance with the terms of the applicable Lease.
(e) Borrower shall promptly deliver to Lender a copy of each 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. Any proceeds Borrower shall use commercially reasonable efforts to provide in each Major Lease executed after the Closing Date to which Borrower is a party that any Tenant delivering any such notice shall send a copy of such a draw notice directly to Lender.
(f) All agreements entered into by or on behalf of Borrower that require the payment of Leasing Commissions or other similar compensation to any party shall (i) provide that the obligation will not be deposited in enforceable against Lender and (ii) be subordinate to the Clearing Accountlien of the Security Instrument.
Appears in 1 contract
Sources: Loan Agreement (American Realty Capital - Retail Centers of America, Inc.)
Leases. (a) All Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the MortgageThe Borrower will not, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of the Administrative Agent, make, or suffer to be made, any Leases other than (i) Leases in existence on the date hereof and (ii) Leases which conform with the requirements of Section 6.07(c).
(b) The Borrower shall deliver prompt written notice to the Administrative Agent of all new Leases, Lease terminations with respect to any Lease of 50,000 or more rentable square feet and Lease modifications, which notice shall set forth the identity of the tenant, proposed tenant and/or substitute tenant, as the case may be, and all material terms relating to the proposed letting, termination or modification. The Borrower shall, within 15 days after the date of this Agreement, submit to the Lender for its review and approval and the review and approval of its counsel, a standard form of office lease and retail lease, the approval of which shall not be unreasonably withheld or delayed. All Leases of space in the Improvements executed after the date hereof shall be voidable on the form of Lease previously approved by the Administrative Agent and its counsel without substantive modification except for commercially reasonable modifications typically made in the usual and ordinary course of arm's length negotiations of leases of space in improvements comparable to the Improvements and, unless otherwise elected by the Administrative Agent, be subject and subordinate to the Mortgage and to the Lien thereof.
(c) In the case of any lease at the Mortgaged Property covering less than 50,000 rentable square feet which is not an Intermediate Lease, the Borrower shall have the right without the Administrative Agent's prior consent and provided no Event of Default has occurred and is continuing: (A) to terminate or accept a surrender of any such Lease (1) in accordance with its terms upon a default by the tenant thereunder or (2) in connection with the reletting of the space for a rental per square foot at least equal to the applicable rental set forth on Schedule 6.07 attached; (B) to enter into new Leases with tenants, provided that each such lease (1) is substantially in accordance with the form of Lease previously approved by the Administrative Agent and its counsel without substantive modification except for commercially reasonable modifications typically made in the usual and ordinary course of arm's length negotiations of leases of space in improvements comparable to the Improvements, (2) is for a rental per square foot at least equal to the applicable rental set forth on Schedule 6.07 attached, and (3) will not result in a tenant (other than existing tenants 37 37 pursuant to Leases entered into prior to this Agreement or in accordance with this Agreement) leasing space in the Mortgaged Property under other Leases and the proposed Lease in excess of 50,000 rentable square feet in the aggregate; and (C) to modify any such Lease, but only for a rental per square foot at least equal to the applicable rental set forth on Schedule 6.07 attached, and provided that after giving effect to such modification, such lease continues to be substantially (x) in accordance with the standard form of lease previously approved by the Administrative Agent and its counsel, if such Lease was entered into after the date of this Agreement, without substantive modification except for commercially reasonable modifications typically made in the usual and ordinary course of arm's length negotiations of leases of space in improvements comparable to the Improvements or (y) the same as the form of such Lease prior to such amendment, if such Lease exists on the date of this Agreement, without substantive modification except for commercially reasonable modifications typically made in the usual and ordinary course of arm's length negotiations of leases of space in improvements comparable to the Improvements. The rentals set forth on Schedule 6.07 may be modified each year with the Administrative Agent's prior consent. The Administrative Agent shall either consent or refuse to consent to the proposed modification within 30 Business Days after receipt of such proposed modification to Schedule 6.07. If the Administrative Agent shall fail to respond within such 30 Business Day period, then the Administrative Agent shall be deemed to have consented to such proposed modification.
(d) Prior to entering into any Lease with respect to 50,000 or more rentable square feet of space in the Improvements (irrespective of whether the space demised under any such lease or to any such tenant is physically contiguous) or a renewal, amendment or termination of any such Lease, the Borrower shall deliver to the Administrative Agent the following documents (collectively, the "Lease Package"): (A) with respect to such new Lease or renewal, amendment or termination of any such Lease, as the case may be, (x) a signed letter of intent with the proposed tenant or (y) a proposal form prepared by the Borrower and in substantially the form previously approved by the Administrative Agent with respect to such Lease or renewal, amendment or termination of any such existing Lease, as the case may be (such letter of intent or proposal, as the case may be, being referred to herein as the "Major Terms Document"), in each case, containing all the material terms of the proposed Lease or such renewal, amendment or termination thereof, as the case may be, including, without limitation, in the case of a new Lease, the identity of the proposed tenant and (B) with respect to a new Lease, such information with respect to the prospective tenant as shall permit the Administrative Agent and, in the case of a Major Lease, as defined below, the Lenders, to assess such proposed tenant's business, character and creditworthiness.
(e) The Borrower shall not enter into any (i) retail Lease with respect to more than 5,000 rentable square feet of space in the Improvements in connection with which a subordination, attornment and non-disturbance agreement is required by the tenant thereunder or (ii) office Lease with respect to more than 25,000 rentable square feet of space in the Improvements in connection with which a 38 38 subordination, attornment and non-disturbance agreement is required by the tenant thereunder or (iii) Lease with respect to 50,000 or more but less than 125,000 rentable square feet of space in the Improvements (in each case, irrespective of whether the space demised under any such Lease or to any such tenant is physically contiguous) (each such lease, an "Intermediate Lease") or modify, amend (other than ministerial amendments required or contemplated by an Intermediate Lease (including, without limitation, such amendments which are entered into in order to evidence the exercise by the tenant of a renewal, extension or expansion option which is contained in such Intermediate lease)), terminate (except after a default by the tenant thereunder) or accept the surrender of any existing Intermediate Lease without, in each case, first obtaining the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld or delayed. With respect to each Intermediate Lease, within ten (10) Business Days after the Administrative Agent shall have received the Lease Package with respect to such Intermediate Lease, the Administrative Agent shall either consent or refuse to consent to such Major Terms Document. If the Administrative Agent shall refuse to consent to the proposed Major Terms Document, then the Administrative Agent shall promptly forward to the Borrower the reasons for such refusal in reasonable detail. If the Administrative Agent shall fail to respond within such ten (10) Business Day period, then the Administrative Agent shall be deemed to have consented to such proposed Major Terms Document.
(f) The Borrower shall not enter into any Lease with respect to 125,000 or more rentable square feet of space in the Improvements (irrespective of whether the space demised under any such Lease or to any such tenant is physically contiguous) (each such lease, a "Major Lease") or modify, amend (other than ministerial amendments required or contemplated by a Major Lease (including, without limitation, such amendments which are entered into in order to evidence the exercise by the tenant of a renewal, extension or expansion option which is contained in such Major Lease)), terminate (except after a default by the tenant thereunder) or accept the surrender of any existing Major Lease without, in each case, first obtaining the prior written consent of the Required Lenders, which consent shall not be unreasonably withheld or delayed. With respect to each proposed Major Lease or any renewal, amendment or termination of an existing Major lease, the Administrative Agent shall promptly upon receipt deliver a copy of the Lease Package with respect to such Major Lease or such renewal, amendment or termination, as the case may be, to each Lender. Within fifteen (15) Business Days after the Administrative Agent shall have received the Lease Package with respect to such Major Lease, the Required Lenders shall either consent or refuse to consent to the Major Terms Document relating to such Major Lease. If the Required Lenders shall refuse to consent to the proposed Major Terms Document, then the Administrative Agent shall promptly forward to Borrower the reasons for such refusal in reasonable detail. If the Administrative Agent shall fail to respond on behalf of the Lenders within such fifteen (15) Business Day period, then the Required Lenders shall be deemed to have consented to the proposed Major Terms Document with respect to such Major Lease. 39 39
(g) If the Required Lenders or the Administrative Agent, as the case may be, shall have approved the Major Terms Document with respect to the termination (to the extent consent is required) or surrender of an existing Intermediate Lease or Major Lease, then the Borrower may proceed with such termination or surrender in accordance with the Major Terms Document with respect to such Intermediate Lease or Major Lease. If the Required Lenders or the Administrative Agent, as the case may be, shall have approved the Major Terms Document with respect to a new Intermediate Lease or Major Lease or the amendment (to the extent consent is required) or renewal of an existing Intermediate lease or Major Lease, as the case may be, then the Borrower shall deliver to the Administrative Agent the final draft of the proposed Intermediate Lease or Major Lease or the relevant renewal or amendment documents, as the case may be, in the case of a new Intermediate Lease or Major Lease shall be mechanically marked to show changes between such Intermediate Lease or Major Lease, and the standard form lease approved by the Administrative Agent and its counsel. Within ten (10) days Business Days after Lender’s requestreceipt of the final draft of the proposed Intermediate Lease or Major Lease or the renewal or amendment documents, Borrower shall furnish to Lender a statement of all tenant security depositsas the case may be, and copies provided that Borrower has otherwise complied with the terms of all Leases not previously delivered to Lenderthis Section 6.07, certified by Borrower the Administrative Agent shall approve or deny approval of such Intermediate Lease or Major Lease or renewal or amendment documents, as being true and correct. Notwithstanding anything contained in the Loan Documentscase may be, Lender’s which approval shall not be required for future Leases unreasonably withheld or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrowerdelayed, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) approval of the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease Required Lenders shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at be required. If the time Administrative Agent shall fail to respond with in such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) yearsBusiness Day period, exclusive then the Administrative Agent shall be deemed to have consented to such proposed Intermediate Lease or Major Lease or such renewal or amendment of renewal options an existing Intermediate Lease or rightsMajor Lease, which together with as the initial term shall not exceed fifteen case may be.
(15h) years). Lender Upon request of Borrower and provided that no Event of Default has occurred and is continuing hereunder, Administrative Agent shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement in the form annexed hereto as Schedule IV to Tenants under future commercial Major Leases 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 tenant a subordination and non-disturbance agreement on behalf of Lenders, in a form satisfactory to Administrative Agent, respecting 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 Intermediate Lease or master Major 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 which approval has been granted under this Section 4.1.9(b) shall be void at the election of LenderAgreement.
(c) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 1 contract
Leases. (a) 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 other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that renewals or amendments of Leases must (i) the Lease be entered into on an arms-length basis with Tenants that are not affiliates of Maryland Guarantor and whose identity and creditworthiness is subordinate to the Mortgageappropriate 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 tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its leaseapplicable market, and otherwise contain terms and conditions that are commercially reasonable, (iii) that 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 Mortgage and contain provisions for the agreement by the Tenant thereunder to attorn to Lender and any cancellationpurchaser at a foreclosure sale, surrendersuch attornment to be 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 Agreement (in each case, or amendment of unless Lender consents to such Lease without in its sole discretion).
(b) 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, shall be subject to the prior written consent of Lender. If Lender shall be voidable by Lender. Within ten (10) days after fail to respond to Maryland Guarantor’s request for such consent within five Business Days of Lender’s requestreceipt thereof, Borrower shall furnish Maryland Guarantor may deliver to Lender a statement second request for consent stating in bold and 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 request within ten Business Days of all tenant security deposits, and copies of all Leases not previously delivered to Lender, certified by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event receipt of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modificationssuch second request, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there such request shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; deemed approved.
(Cc) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of BorrowerMaryland Guarantor shall, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrowercause Operating Lessee to, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 observe and punctually perform all the material obligations which Borrower is required to perform imposed upon the lessor under the Leases; (ii) shall enforce all of the obligations material terms, covenants and conditions contained in the Leases on the part of the lessee thereunder to be performed observed or performed, short of termination thereof, except that the lessor may terminate any Lease following a material default thereunder by the tenantsrespective Tenant; (iii) shall promptly furnish to Lender not collect any notice of default or termination received by Borrower from any tenant, and any notice of default or termination given by Borrower to any tenantthe rents thereunder more than one month in advance; (iv) shall not collect execute any assignment of lessor’s interest in the Leases or associated rents for more other than thirty (30) days in advance the assignment of rents and leases under the time when the same shall become due, except for bona fide security deposits not in excess of an amount equal to two months rentMortgage; (v) shall not enter into cancel or terminate any ground Lease or master Lease guarantee of any part of the PropertyMajor Leases without the prior written consent of Lender; and (vi) shall not further assign or encumber permit any Lease; (vii) shall not, except with Lender’s prior written consent, cancel or accept surrender or termination subletting of any Lease; (viii) shall not, except with Lender’s prior written consent, modify space covered by a Lease or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default existsthe Tenant’s rights under a Lease, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower except in order to allow Borrower to apply or realize upon the same 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) Security deposits of Tenants under all Leases, whether held in cash or any other form, shall not be 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, maintain books and records of sufficient detail to identify all security deposits of Tenants separate and apart from any other 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, 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 bond or other instrument is pledged to Lender as security for the Indebtedness and shall, in all respects, comply with any applicable lease or (b) at BorrowerLegal Requirements and otherwise be reasonably satisfactory to Lender. Maryland Guarantor shall, upon Lender’s request, retain possession provide Lender with evidence reasonably satisfactory to Lender of each 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 an Eligible Account pledged to Lender an amount equal to the aggregate security deposits of the Tenants (and any Tenant Letter of Credit, provided, however, interest theretofore earned on such security deposits and actually received by Maryland Guarantor or Operating Lessee) that in Maryland Guarantor and Operating Lessee had not returned to the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same applicable Tenants or applied in accordance with the terms of the applicable Lease.
(e) Maryland Guarantor shall cause to be promptly delivered to Lender a copy of each 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. Any proceeds Maryland Guarantor shall cause each Major Lease executed after the Closing Date to which Maryland Guarantor or Operating Lessee is a party to provide that any Tenant delivering any such notice shall send a copy of such a draw shall be deposited in the Clearing Accountnotice directly to Lender.
Appears in 1 contract
Leases. Seller agrees to use its commercially reasonable efforts to cause the lessors of the properties described on Schedule 3.1(f)
(a1) All Leases that are leased to ACS Defense, ACS or a Subsidiary of ACS, other than an Acquired Entity (collectively, the "Seller Leases") and other rental arrangements shall are not identified in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except such schedule as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate being Excluded Leases, to consent to the Mortgage, (ii) assignment of such leases or to the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy continued use of its lease, and (iii) that any cancellation, surrendersuch properties by Buyer, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of BorrowerBuyer, as designated by Buyer (the "Buyer Lease Assignee"), after the Closing. The Parties intend all rights and obligations under each of the Seller Leases shall be established pursuant assigned to and assumed by the Leasing Guidelines attached hereto as Schedule IV; (F) Buyer Lease Assignee and that the Buyer Lease Assignee shall be timely pay and otherwise perform all obligations thereunder. Buyer agrees to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time execute such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases approved by Lender promptly upon request with such commercially reasonable changes guarantees as may be requested by Tenants, from time the lessor under any Seller Lease in order to time, have the rights and which are obligations under each of the Seller Leases assigned to and assumed by the Buyer Lease Assignee at the Closing and agrees to provide such Financial Support Arrangements to the lessors under the new leases described in Section 4.3(g) as may be reasonably acceptable requested by such lessors. The failure of the Buyer Lease Assignee to Lender.
(b) Borrower (i) shall perform fully all of the obligations which Borrower is required under any Seller Lease subsequent to perform under the Leases; (ii) shall enforce the obligations such assignment or Buyer's failure to execute such guarantees as may be performed requested by the tenants; (iii) shall promptly furnish to Lender lessor under 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 Seller 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) any Lease termination or cancellation fees shall be paid subject to Lender and held in the Rollover Fund. Any action in violation of clauses (v), (vi), (vii), and (viiiindemnity afforded to Seller by Buyer under Section 9.2(d) of this Section 4.1.9(b) shall be void Agreement. If, at the election of Lender.
(c) Within thirty (30) days any time after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each amounts are paid under any Seller Lease by Seller or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms its Affiliates, Buyer shall reimburse Seller such amounts promptly after receipt from Seller of notice thereof accompanied by written evidence of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Accountunderlying payment obligation.
Appears in 1 contract
Sources: Stock Purchase Agreement (Affiliated Computer Services Inc)
Leases. (a) Borrower shall furnish Lender with executed copies of all Leases hereafter entered into. All new Leases and other rental arrangements renewals or Modifications of Leases shall in all respects be approved by Lender entered into on an arms-length basis, at market rates for similar properties, and shall be on a standard Lease form previously approved by Lender with no material modifications contain terms and conditions that are commercially reasonable.
(except as approved by Lender). Such Lease form shall provide that (ib) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its leaseAll new Leases which are Major Leases, and (iii) that all terminations, renewals and material Modifications of Major Leases, and any cancellation, surrender, or amendment surrender of such rights under any Major Lease without shall be subject to the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed; provided however that Borrower may, without Lender’s consent (x) enter into Modifications and terminations of existing Leases that are not Major Leases; and (y) subject to Section 4.1.8(c) below, enter into new Leases that are not Major Leases.
(c) All new Leases executed after the date hereof which are not Major Leases shall be substantially in the form of Exhibit B attached hereto (the “Form Lease”); provided that the Form Lease may be Modified by Borrower to the extent such Modifications are negotiated on an arms-length basis and reflect commercially reasonable market terms, as reasonably determined by Borrower. 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 which provides for in excess of $50.00 per rentable square foot for tenant improvements, tenant allowances and leasing commissions in the aggregate unless Borrower provides Lender evidence that it has the financial ability (e.g., adequate funds on deposit with Lender which are available for the payment of same) to fund such excess before such amounts are disbursed out of the various Reserve Funds.
(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, (ii) observe and perform all the material obligations imposed upon the lessor under the Leases; (iii) to the extent commercially reasonable, 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, provided that Borrower may terminate any Lease that is not a Major Lease following a material default thereunder by the respective Tenant; (iv) not seek to 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 Major Lease or guarantee of any of the Major Leases except as set forth in Section 4.1.8(b) above.
(e) Notwithstanding anything to the contrary contained in this Section 4.1.8:
(i) whenever Lender’s approval or consent is required pursuant to the provisions of this Section 4.1.8, Borrower shall have the right to submit a term sheet for any Lease or any Modification 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 Lease (or Modification thereof) including, without limitation, identity of tenant, square footage, term, rent, rent credits, abatements, work allowances and tenant improvements to be voidable constructed by Borrower (and shall be accompanied by copies of all written materials obtained by Borrower in connection with their evaluation of the creditworthiness of the proposed Tenant) and shall include a request containing a legend in bold letters stating that Lender. Within ’s failure to respond within ten (10) days Business Days shall be deemed consent or approval of the term sheet. Lender shall respond within ten (10) Business Days after Lender’s requestreceipt 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, Borrower Lender shall furnish be deemed to have approved or consented to such term sheet. Approval of the term sheet in accordance with this subsection (i) does not constitute approval of the Lease itself and such approval of the Lease, if such Lease is required to be approved under this Section 4.1.8, must be obtained in accordance with subsection (iii) hereof;
(ii) whenever Lender’s approval or consent is required pursuant to the provisions of this Section 4.1.8 for any matter that Lender has not previously approved a statement term sheet pursuant to Section 4.1.8(e)(i) above, Lender shall respond within ten (10) Business Days after Lender’s receipt of all tenant security depositsBorrower’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 approval. If Lender fails to respond to such request within ten (10) Business Days, Lender shall have been deemed to have approved or consented to the matter for which Lender’s consent or approval was sought. Such request for approval shall be accompanied by a copy of the proposed lease, a summary of the material economic terms thereof and any termination and other material options contained therein, and copies of all Leases not written materials obtained by Borrower in connection with their evaluation of the creditworthiness of the proposed Tenant or, with respect to a proposed termination, a description of the reason therefore;
(iii) whenever Lender’s approval or consent is required pursuant to the provisions of this Section 4.1.8 for any matter that Lender has previously approved a term sheet pursuant to Section 4.1.8(e)(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 (aa) a new Major Lease or an amended and restated Major Lease, (bb) a term sheet has been approved by Lender, (cc) a blacklined copy of the new document against the Form Lease, and (dd) an Officer’s Certificate is delivered to Lender, certified by Borrower in each case, indicating that the new document’s only differences with the Form Lease are as being true and correct. Notwithstanding anything contained reflected in the Loan Documentsapproved term sheet, are those which do not materially adversely affect the Property, Borrower or Lender’s , or are those which Lender has otherwise approved, which approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) reasonable so long as there exists is no Default or Event of Default; and
(Biv) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there event that Lender shall have approved (or be no material modification deemed to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses have approved) a term sheet submitted by Borrower with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major certain Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each not withhold its approval or consent with respect to such Lease on the basis of any Tenant Letter provisions of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance such Lease dealing with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that items contained in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Accountapproved term sheet.
Appears in 1 contract
Sources: Senior Mezzanine Loan Agreement (Thomas Properties Group Inc)
Leases. (a) All Leases and other rental arrangements Notwithstanding anything to the contrary herein, Mortgagor shall in all respects be approved by Lender not enter into any Lease without Mortgagee’s prior written consent, and shall be on furnish to Mortgagee, upon execution, a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender)complete and fully executed copy of each Lease. Such Lease form Mortgagor shall provide that 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.
(ib) 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 is subordinate to or terminate or accept a surrender of the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by Lender. Within ten (10) days after Lender’s requestany Tenant of a failure on the part of Mortgagor to so perform, Borrower shall furnish to Lender a statement of all tenant security depositsMortgagee may, and copies of all Leases not previously delivered to Lender, certified by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval but shall not be required for future Leases obligated to, without waiving or Lease extensions or modifications if 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 following conditions are satisfied: date incurred at an annual rate equal to nine and one half percent (A9.5%) there exists no Default or Event in excess of Default; the one month LIBOR Rate (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to as set forth and defined in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Bond Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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.
(be) 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) For purposes of this Section 4.1.9(b) Mortgage, the following terms shall be void at have the election of Lender.
(c) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.following meanings:
Appears in 1 contract
Leases. (a) 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 and other rental arrangements shall of space in all respects be approved by Lender and 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, shall provide for market rents then prevailing in the market area of the Premises and substantially all of the Leases at the Property shall be for a standard Lease form previously approved by Lender with no material modifications term of not less than six (except as approved by Lender)6) months or greater than one (1) year. Such Lease form Leases may also provide for security deposits in reasonable amounts consistent with prevailing market conditions. Borrower shall provide that (i) the Lease is subordinate also submit to Lender for Lender’s approval, which approval shall not be unreasonably withheld, prior to the Mortgageexecution thereof, (ii) any proposed Lease of the tenant Improvements or any portion thereof that differs materially and adversely from the aforementioned form Lease. Borrower shall attorn 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. Borrower shall furnish to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. Within within ten (10) days after Lender’s requesta request by Lender to do so, Borrower shall furnish to Lender but in any event by January 1 of each year, a statement of all tenant security deposits, and copies of all Leases not previously delivered to Lendercurrent Rent Roll, certified by Borrower as being true and correct. Notwithstanding anything contained in , containing the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event names of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses all Tenants with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) , the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of their respective Leases, the Lease)spaces occupied and the rentals or fees payable thereunder and the amount of each Tenant’s security deposit, and (ix) any Lease termination or cancellation fees shall be paid to Lender and held in if any. Upon 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 request of Lender.
(c) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original a copy of each such Lease. Borrower shall not do or suffer to be done any act, or omit to take any action, that might result in a default by the landlord, lessor or licensor under any such Lease or allow the Tenant Letter thereunder to withhold payment of Creditrent or cancel or terminate same and shall not further assign any 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 except to the extent consistent with prudent collection practices. 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 party from the performance or observance of any obligation or condition under such Leases except 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 represents, warrants and covenants that no Rents have been anticipated, discounted, released, waived, compromised or otherwise discharged, except for prepayment of rent of not more than one (1) month prior to the accrual thereof, except for prepayments for up to thirty percent (30%) of the Leases at the Property consistent with sound and customary leasing practices for similar properties in the community in which the Property is located.
(b) Upon the occurrence of an Event of Default under this Security Deed, 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 Security Deed, forthwith, upon demand of Lender, Borrower shall surrender to Lender, and Lender shall be entitled to take actual possession of, the Property or any part thereof personally, or by its agent or attorneys. In such event, Lender shall have, and Borrower hereby gives and grants to Lender, the right, power and authority to make and enter into Leases with respect to the Property or portions thereof for such rents and for such periods of occupancy and upon conditions and provisions as Lender may deem desirable in its sole discretion, 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 Security Deed. The power and authority hereby given and granted by Borrower to Lender shall be deemed to be coupled with an interest, shall not be revocable by Borrower so long as any portion of the Debt is outstanding, shall 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, Lender shall not be liable for any loss sustained by Borrower resulting from any failure to let the Property, or 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 any obligation, duty or liability under any Lease covering the Property or any part thereof or under or by reason of this instrument or 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 such Lease or under this Security Deed 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 court of competent jurisdiction to have resulted solely from the gross negligence or willful misconduct of Lender. Should Lender incur any such liability, the amount thereof, including, without limitation, costs, expenses and reasonable attorneys’ fees, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of interest thereon at the Default exists, Borrower shall use commercially reasonable efforts to obtain Interest Rate from the Issuing Bank its consent date incurred by Lender until actually paid by Borrower, shall be immediately due and payable to an assignment Lender by Borrower on demand and shall be secured hereby and by all of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each the other Loan Documents securing all or any Tenant Letter part of Credit to Borrower the Debt. Nothing in order to allow Borrower to apply this Section shall impose on Lender any duty, obligation or realize upon responsibility for the same in accordance with control, care, management or repair of the Property, or for the carrying out of any of the terms and 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 applicable lease Property, or (b) at Borrower’s request, retain possession of each or for any Tenant Letter of Credit, provided, however, that negligence in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms management, upkeep, repair or control of the applicable LeaseProperty. Any proceeds Borrower hereby assents to, ratifies and confirms any and all actions of such a draw shall be deposited in Lender with respect to the Clearing AccountProperty taken under this Section.
Appears in 1 contract
Sources: Deed to Secure Debt, Security Agreement and Fixture Filing (Campus Crest Communities, Inc.)
Leases. (a) All Mortgagor represents and warrants that, except as disclosed in the Perfection Certificate, as of the Effective Date Mortgagor has not entered into any Material Space Leases other than the Shop Leases and other rental arrangements shall in all respects be approved by Lender the Food and shall be on a standard Lease form previously approved by Lender with no material modifications Beverage Leases (except each as approved by Lenderhereinafter defined). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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) Mortgagor shall not enter into any ground Lease Space Leases with respect to the Site except (i) Space Leases approved by the Mortgagee (which approval shall not be unreasonably withheld, conditioned or master Lease of any part 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 Property; proposed Space Lease to Mortgagee), (viii) shall 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 further assign or encumber any 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; (vii) shall not, except with Lenderthe Shop Leases and Food and Beverage Leases, shall be modified, amended or supplemented in any material respect without Mortgagee’s prior written consent, cancel which consent shall not be unreasonably withheld or accept surrender or termination of any Lease; delayed, and which shall be deemed given if Mortgagee has not responded to Mortgagor’s request for such approval within ten (viii10) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in Business Days after the ordinary course of business, consistent with prudent property management practices, not affecting date on which the economic terms Mortgagor has delivered to Mortgagee a copy of the Lease), and (ix) 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 Lenderproposed amendment.
(c) Within thirty (30) days after the Closing DateAfter an Event of Default, Borrower Mortgagor shall deliver to Lender Mortgagee the original executed originals of each Tenant Letter of Credit, together all Material Space Leases with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While respect to the Fee Site and any Event of Default exists, Borrower shall use commercially reasonable efforts Space Leases with respect to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing AccountLeasehold Site.
Appears in 1 contract
Leases. (a) All Leases and other rental arrangements shall Borrower will utilize the Approved Lease Form in leasing all respects be approved by Lender and shall be or any part of the Mortgaged Property, subject only to non-material changes made on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender)lease-by-lease basis. Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to enter into any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord leases without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space approval, such approval to be in the Property; sole and absolute discretion of Lender. Notwithstanding the foregoing, so long as such lease otherwise meets the criteria provided in this Section 5.18 (Di.e., Lender approves such proposed tenant’s creditworthiness and Lender will receive an SNDA if an SNDA is required by Lender) and meets the Lease is not and would not becriteria set forth in Exhibit G attached hereto, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, approval shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant Lender’s reasonable discretion. Prior to the Leasing Guidelines attached hereto as Schedule IV; (F) execution of any Lease, the Borrower shall deliver to the Lender for its review and approval any Lease. Further, prior to the execution of any Lease, Borrower shall have received Lender's approval of the creditworthiness of the proposed tenant and Lender may condition any Lease shall be to a tenant which Borrower, approval on the receipt of an SNDA in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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. Each Lease shall be substantially in the form of the Approved Lease Form unless otherwise agreed to by Lender. Borrower shall deliver to Lender a copy of each executed Lease promptly after acceptance and execution thereof by the Borrower.
(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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 Upon request of Lender.
(c) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or tenant under any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms Lease covering any portion of the applicable lease Mortgaged Property, from time to time as requested by Lender, estoppel certificates stating that (i) the Lease is unmodified and in full force and effect and (ii) that no default exists thereunder on the part of Tenant or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 1 contract
Sources: Construction Loan Agreement (Stratus Properties Inc)
Leases. (a) All Leases and other rental arrangements all renewals of Leases executed after the date hereof shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the 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 Mortgage, (ii) Mortgage encumbering the tenant shall related Individual Property and that the lessee will attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and any purchaser at a foreclosure sale and (iiiiv) that not contain any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. Within ten (10) days after terms which would materially adversely affect 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. Notwithstanding anything contained in 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, which approval shall not be required for future Leases unreasonably withheld or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial term shall not exceed fifteen (15) years)delayed. Lender shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement in the form annexed hereto as Schedule IV to Tenants under future commercial Major Leases 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 observe and perform the obligations which Borrower is required to perform imposed upon the lessor under the LeasesLeases in a commercially reasonable manner; (ii) shall enforce the obligations 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, 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 tenantsevent of a material default under a Major Lease; (iii) shall promptly furnish to Lender not collect any notice of default or termination received by Borrower from any tenant, and any notice of default or termination given by Borrower to any tenantthe Rents more than one (1) month in advance (other than security deposits); (iv) shall not collect execute any rents for more than thirty assignment of lessor’s interest in the Leases or the Rents (30) days in advance of except as contemplated by the time when the same shall become due, except for bona fide security deposits not in excess of an amount equal to two months rentLoan Documents); (v) shall not enter into alter, modify or change any ground Major Lease so as to change the amount of or master Lease of payment date for rent, change the expiration date, grant any part option for additional space or term, materially reduce the obligations of the Propertylessee 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 (vi) shall not further assign or encumber any Lease; (vii) hold all security deposits under all Leases in accordance with Legal Requirements. Upon request, Borrower shall not, except furnish Lender with Lender’s prior written consent, cancel or accept surrender or termination executed copies of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 Lenderall Leases.
(c) Within thirty Notwithstanding anything to the contrary contained in this Section 4.1.9:
(30i) days after whenever Lender’s approval or consent is required pursuant to the Closing Dateprovisions of this Section 4.1.9, Borrower shall deliver 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 original proposed transaction including, without limitation, identity of each Tenant Letter of Credittenant, together with a blank assignment for each Tenant Letter of Credit as square footage, term, rent, rent credits, abatements, work allowances and tenant improvements to be constructed by Borrower. Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable good faith efforts to obtain from respond within ten (10) Business Days after Lender’s receipt of the Issuing Bank its Borrower’s written request for approval or consent of such term sheet. If Lender fails to an assignment of each Tenant Letter of Credit 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. Provided no Event of Default exists’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 (a5) at Business Day period;
(ii) 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 a term sheet pursuant to Section 4.1.9(c)(i) above, Lender shall use good faith efforts to respond within ten (10) Business Days after Lender’s receipt of Borrower’s requestwritten request for such approval or consent. If Lender fails to respond to such request within ten (10) Business Days, promptly return each 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 Tenant Letter 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 Credit 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 order the term sheet;
(iv) in the event that Lender shall have approved (or be deemed to allow have approved) a term sheet submitted by Borrower with respect to apply a certain Lease, Lender shall not withhold its approval or realize upon consent with respect to such Lease on the same in accordance basis of any provisions of such Lease dealing with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that items contained in the case approved term sheet; and
(v) Borrower shall have the right, without the consent or approval of this clause (b) Lender shall take all steps reasonably necessary in any instance, to assist Borrower in connection with terminate or accept a draw upon the same in accordance with the terms surrender of the applicable any Lease that is not a Major Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 1 contract
Sources: Loan Agreement (Wells Real Estate Investment Trust Inc)
Leases. Except as may be described in the Title Policy, there are no leases affecting the Property. Borrower has not executed any prior assignment of the Leases, nor has it performed any act or executed any other instrument which might prevent Lender from operating under any of the terms and conditions of the Assignment of Leases or which would limit Lender in such operation; and Borrower further covenants and warrants to Lender that Borrower has not executed or granted any modification whatsoever of the Leases, except as herein indicated, and that the Leases are in full force and effect, and that, except as otherwise disclosed to Lender in writing, there are no defaults now existing under the Leases with respect to which Borrower has notified the tenant under the Leases. Physical Condition of Property. Subject to the Renovation Work, all of the Improvements are in good condition and repair except as otherwise expressly provided in the Property Condition Report dated as of October 20, 1998, prepared by Building Evaluation Services & Technology, Inc. (a) All Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with the "Property Condition Report"). Since the date of the Property Condition Report, there have been no material modifications (adverse changes to the physical condition of the Improvements. Borrower is aware of no latent or patent structural or other significant defect or deficiency in such Improvements except as approved by Lender)may be disclosed in the Property Condition Report. Such Lease form shall provide that (i) the Lease is subordinate Water supply, storm and sanitary sewers, and electrical, gas and telephone facilities are available to the MortgageProperty within the boundary lines of the Property, (ii) are sufficient to meet the tenant shall attorn reasonable needs of the Property as now used or contemplated to be used, no other utility facilities are necessary to meet the reasonable needs of the Property as now used, and design and as-built conditions of the Property are such that surface and storm water does not accumulate on the Property and, except as disclosed in writing to Lender, provided Lender has agreed does not to disturb tenant’s occupancy drain from the Property across land of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lenderadjacent property owners. 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 Except as otherwise disclosed in writing to Lender, certified by Borrower as being true no part of the Property is within a flood plain and correctnone of the Improvements create an encroachment over, across or upon any of the Property's boundary lines, rights of way or easements, and no building or other improvement on adjoining land create such an encroachment. Notwithstanding anything contained in the Loan DocumentsMechanics' Liens. There are no mechanics' or materialmen's liens, Lender’s approval shall not be required for future Leases alienable bills or Lease extensions other claims constituting or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is that may constitute a lien on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease part thereof, and no work for space in the Property; (D) the Lease is not and would not be, after which any such extension or modificationlien could be asserted has been performed within the last 90 days, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and except as otherwise disclosed in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 writing 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 1 contract
Leases. (a) All Leases and all renewals of Leases (other rental arrangements than renewals exercised pursuant to Leases which existed (including the renewal terms) on the Closing Date and (A) for which Borrower has no discretion as to the terms of such renewal and (B) which renewal terms have not been modified since the Closing Date) executed after the date hereof shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) be the product of an arm’s-length transaction (other than the Health Club Documents), (ii) be on commercially reasonable terms, (iii) provide that such Lease is subordinate to the Mortgage, (ii) Mortgage and that the tenant shall lessee will attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and any purchaser at a foreclosure sale and (iiiiv) that not contain any cancellation, surrender, terms which would materially adversely affect Lender’s rights under the Loan Documents or amendment the Property. All Major Leases and all renewals (other than renewals exercised pursuant to Major Leases which existed (including the renewal terms) on the Closing Date and (A) for which Borrower has no discretion as to the terms of such Lease without renewal and (B) which renewal terms have not been modified since the prior written consent of Lender Closing Date), amendments and modifications thereof executed after the date hereof shall be voidable by Lender. Within ten (10) days after subject to Lender’s requestprior approval, 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. Notwithstanding anything contained in the Loan Documents, Lender’s which approval shall not be required for future Leases unreasonably withheld or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial term shall not exceed fifteen (15) years)delayed. Lender shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement in the form annexed hereto as Schedule IV to Tenants under future commercial Major Leases approved or deemed approved by Lender promptly upon request (and, if requested by any Tenants under Leases other than Major Leases, Lender shall use reasonable efforts to execute and deliver such Subordination Non-Disturbance and Attornment Agreements to such Tenants) 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 observe and perform the obligations which Borrower is required to perform imposed upon the lessor under the LeasesLeases in a commercially reasonable manner; (ii) shall enforce the obligations 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, Borrower shall not terminate (other than due to a monetary default by the tenantstenant under a Major Lease) or accept a surrender of a Major Lease without Lender’s prior approval, which approval shall not be unreasonably withheld or delayed; (iii) shall promptly furnish not collect any of the Rents more than one (1) month in advance (other than security deposits), except as approved by Lender or as provided in Leases that exist as of the date hereof and, if the amount of any such prepaid Rent shall equal or exceed $250,000 for any Lease, then as a condition to any approval by Lender any notice of default or termination received by Borrower from any tenant, and any notice of default or termination given by for Borrower to any tenantcollect such Rents more than one (1) month in advance, Lender may require that Borrower deposit all such prepaid Rents with Lender to be held in an interest-bearing account and applied to the Debt as it comes due and payable pursuant to the Loan Documents during the period represented by the prepaid Rent; (iv) shall not collect execute any rents for more than thirty assignment of lessor’s interest in the Leases or the Rents (30) days in advance of except as contemplated by the time when the same shall become due, except for bona fide security deposits not in excess of an amount equal to two months rentLoan Documents); and (v) shall not enter into any ground Lease or master Lease hold all security deposits under all Leases in accordance with Legal Requirements. Upon request, Borrower shall furnish Lender with executed copies 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 Lenderall Leases.
(c) Within thirty Notwithstanding anything to the contrary contained in this Section 4.1.9:
(30i) days after whenever Lender’s approval or consent is required pursuant to the Closing Dateprovisions of this Section 4.1.9, Borrower shall deliver 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 original proposed transaction including, without limitation, identity of each Tenant Letter of Credittenant, together with a blank assignment for each Tenant Letter of Credit as square footage, term, rent, rent credits, abatements, work allowances and tenant improvements to be constructed by Borrower. Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable good faith efforts to obtain from the Issuing Bank its respond within eight (8) Business Days after Lender’s receipt of Borrower’s written request for approval or consent of such term sheet. If Lender fails to an assignment of each Tenant Letter of Credit respond to such request within eight (8) Business Days, and Borrower sends a second request containing a legend in bold letters stating that Lender. Provided no Event of Default exists’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 (a5) at Business Day period;
(ii) 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 (or deemed approved) a term sheet pursuant to Section 4.1.9(c)(i) above, Lender shall use good faith efforts to respond within eight (8) Business Days after Lender’s receipt of Borrower’s requestwritten request for such approval or consent. If Lender fails to respond to such request within eight (8) Business Days, promptly return each 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;
(iii) whenever Lender’s approval or consent is required pursuant to the provisions of this Section 4.1.9 for any Tenant Letter matter that Lender has previously approved (or deemed 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 Credit 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 not materially less favorable to Borrower than as set forth in order the term sheet;
(iv) in the event that Lender shall have approved (or be deemed to allow have approved) a term sheet submitted by Borrower with respect to apply a certain Lease, Lender shall not withhold its approval or realize upon consent with respect to such Lease on the same in accordance basis of any provisions of such Lease dealing with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that items contained in the case approved term sheet; and
(v) Borrower shall have the right, without the consent or approval of this clause (b) Lender shall take all steps reasonably necessary in any instance, to assist Borrower in connection with terminate or accept a draw upon the same in accordance with the terms surrender of the applicable any Lease that is not a Major Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 1 contract
Leases. (a) All Leases and other rental arrangements shall No Credit Party will, nor will it permit any of its Subsidiaries to, lease or sublease all or any portion of any Pool Property except pursuant to an Approved Lease. Without the prior written consent in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that each instance of Administrative Agent: (i) no existing lease of the Lease is subordinate parking space at any Pool Property or of other rentable space at any Pool Property that generates more than 25% of the gross revenue of such Pool Property (each such Lease, a "Major Lease") shall be terminated; provided that the Borrower may, without the prior consent of the Administrative Agent, terminate any lease with respect to a Pool Property if the Mortgagetenant with respect to such lease has defaulted on its obligation to pay rent, additional rent, or any other material amounts due thereunder beyond any applicable grace or cure periods, (ii) the tenant no such existing Major Lease shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its leasebe modified or amended in any material respect, and (iii) that no new Major Lease shall be entered into. Administrative Agent and each of the Lenders shall be provided with a full and complete copy of each proposed Major Lease and any cancellationamendment or modification thereof. Any Major Lease, surrenderor modification or amendment thereof, which has been so approved by Administrative Agent, and any lease, or modification or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease lease which does not conflict with require Administrative Agent's approval under this Section (including any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease lease that is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates), shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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"Approved Lease".
(b) Any request by Borrower for an approval with respect to leasing matters shall be accompanied, at a minimum, by the following: (i) shall perform the obligations which Borrower is required to perform under the Leasesproposed Lease or amendment or modification thereof complete with all applicable schedules and exhibits; (ii) shall enforce the obligations to be performed by the tenantsa complete copy of any proposed guaranty; (iii) shall promptly furnish if available, comprehensive financial information with respect to Lender any notice of default or termination received by Borrower from any the proposed tenant, sub-tenant or assignee and, if applicable, the proposed guarantor (as to new leases or amendments or modifications to existing leases involving material economic changes, and any notice of default as to proposed sub-lets or termination given by Borrower to any tenantassignments); (iv) shall not collect any rents for more than thirty (30) days in advance a brief written summary of the time when proposed permitted uses and a discussion of how such uses relate to other tenancies then existing at the same shall become due, except for bona fide security deposits not in excess of an amount equal to two months rentProperty; (v) shall not enter into any ground an executive summary of the terms and conditions of the proposed Lease, sub-Lease or master Lease of any part of assignment, and, if applicable, the Propertyproposed guaranty; and (vi) shall not further assign or encumber an executive summary of the facts and conditions relating to any Lease; (vii) shall not, except with Lender’s prior written consent, cancel or accept surrender or proposed termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30The Administrative Agent shall act on requests from Borrower for any approval under Section 6.11(a) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with in a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower commercially reasonable manner and shall use commercially reasonable efforts to obtain from respond to any such request within ten (10) Business Days following Administrative Agent's or Lenders' receipt thereof. Administrative Agent's response may consist of an approval or disapproval of the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or a conditional approval thereof subject to specified conditions, or a request for further data or information, or any Tenant Letter of Credit to Borrower in combination thereof. In order to allow expedite the processing of requests for such approvals, Borrower agrees to apply or realize upon the same in accordance with the terms provide Administrative Agent and each of the applicable lease or (b) at Lenders with as much advance information as is possible in a commercially reasonable manner in advance of Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account's formal request for an approval.
Appears in 1 contract
Leases. (a) All Leases The real property leases (the "Leases") in effect as of the date hereof are as set forth on SCHEDULE 4.23 annexed hereto and other rental arrangements shall in all respects be approved by Lender and shall be on made a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its leasepart hereof, and all such Leases are in full force and effect and constitute the legal, valid and binding obligations of the Borrower and each lessor thereto. No events of default (iiiother than any default which by the terms of the Leases would occur solely as a result of the filing of the Reorganization Case) that exist thereunder and there exist no events or conditions which with the giving of notice or the lapse of time or both would result in an event of default. Borrower shall not amend, modify, supplement or terminate any cancellationLeases or any exhibits thereto or any related agreement now or hereafter entered into between a lessor and Borrower, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 advise each lessor, in writing, that the obligations which Borrower is required applicable Lease has been assigned as collateral 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty Borrower agrees to provide Lender with written notice within three (303) days after Business Days before Borrower enters into any real property lease not set forth on SCHEDULE 4.23 hereto (the Closing Date"Additional Lease"). In each instance, Borrower shall deliver to Lender the original true and accurate copies of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower such proposed Additional Lease and Lender's written consent shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit be required prior to Borrower in order executing such Additional Lease. If approved, such Additional Lease shall be subject to allow the provisions of this Agreement and shall be assigned by Borrower to apply Lender as additional Collateral. Borrower represents that the Leases are valid and in full force and effect and there exists no default by any party thereunder and no event or realize upon the same in accordance condition which with the terms lapse of time or the applicable lease giving of notice or both would result in a default thereunder by any party thereto.
(bd) at Borrower’s requestBorrower will perform when due all of its obligations under the Leases, retain possession and will promptly notify Lender of each any default thereunder by any party or the existence of any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance event or condition which with the terms giving of notice or the applicable Lease. Any proceeds lapse of such time or both would result in a draw shall be deposited in the Clearing Accountdefault thereunder by any party.
Appears in 1 contract
Leases. (a) All Leases and other rental arrangements all renewals of Leases executed after the date hereof shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the 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 Mortgage, (ii) Mortgage and that the tenant shall lessee will attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and any purchaser at a foreclosure sale and (iiiiv) that not contain any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. Within ten (10) days after terms which would materially adversely affect 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. Notwithstanding anything contained in rights under the Loan Documents. All Major Leases and all renewals, amendments and modifications thereof (other than those expressly contemplated by the applicable original Lease) executed after the date hereof shall be subject to Lender’s prior approval, which approval shall not be required for future Leases unreasonably withheld or Lease extensions or modifications if the following conditions are satisfied: delayed (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification that Lender hereby acknowledges that Borrower intends to any provisions with regard to subordination terminate the 360 Lease shortly after the date hereof and attornment, estoppels and other such certificates or liability or indemnification clauses Lender’s consent is not required with respect to landlord without Lender’s prior written consent; (C) the termination of the 360 Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in future termination of the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major AFN Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 observe and perform in all material respects the obligations which Borrower is required to perform imposed upon the lessor under the LeasesLeases in a commercially reasonable manner; (ii) shall enforce in all material respects the obligations terms, covenants and conditions contained in the Leases upon the part of the lessee thereunder to be observed or performed by the tenantsin 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 promptly furnish to Lender not collect any notice of default or termination received by Borrower from any tenant, and any notice of default or termination given by Borrower to any tenantthe Rents more than one (1) month in advance (other than security deposits); (iv) shall not collect execute any rents for more than thirty assignment of lessor’s interest in the Leases or the Rents (30) days in advance of except as contemplated by the time when the same shall become due, except for bona fide security deposits not in excess of an amount equal to two months rentLoan Documents); (v) shall not enter into alter, modify or change any ground Major Lease so as to change the amount of or master Lease of payment date for rent, change the expiration date, grant any part option for additional space or term, materially reduce the obligations of the Propertylessee or materially increase the obligations of lessor; and (vi) shall not further assign or encumber any Lease; (vii) hold all security deposits under all Leases in accordance with Legal Requirements. Upon written request, Borrower shall not, except furnish Lender with Lender’s prior written consent, cancel or accept surrender or termination executed copies of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 Lenderall Leases.
(c) Within thirty Notwithstanding anything to the contrary contained in this Section 4.1.9:
(30i) days after whenever Lender’s approval or consent is required pursuant to the Closing Dateprovisions of this Section 4.1.9, Borrower shall deliver 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 original proposed transaction including, without limitation, identity of each Tenant Letter of Credittenant, together with a blank assignment for each Tenant Letter of Credit as square footage, term, rent, rent credits, abatements, work allowances and tenant improvements to be constructed by Borrower. Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable good faith efforts to obtain from the Issuing Bank its 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 an assignment of each Tenant Letter of Credit respond to such request within ten (10) Business Days, and Borrower sends a second request containing a legend in bold letters stating that Lender. Provided no Event of Default exists’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 (a5) at Business Day period;
(ii) 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 a term sheet pursuant to Section 4.1.9(c)(i) above, Lender shall use good faith efforts to respond within ten (10) Business Days after Lender’s receipt of Borrower’s requestwritten request for such approval or consent. If Lender fails to respond to such request within ten (10) Business Days, promptly return each 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 Tenant Letter 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 Credit 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 order the term sheet;
(iv) in the event that Lender shall have approved (or be deemed to allow have approved) a term sheet submitted by Borrower with respect to apply a certain Lease, Lender shall not withhold its approval or realize upon consent with respect to such Lease on the same in accordance basis of any provisions of such Lease dealing with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that items contained in the case approved term sheet or unreasonably withhold its consent with respect to any other matters with respect to such Lease; and
(v) Borrower shall have the right, without the consent or approval of this clause (b) Lender shall take all steps reasonably necessary in any instance, to assist Borrower in connection with modify, extend, renew, terminate or accept a draw upon the same in accordance with the terms surrender of the applicable any Lease that is not a Major Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 1 contract
Leases. (a) All Leases and other rental arrangements shall in all respects be approved by Lender and renewals of Leases executed after the date hereof shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate subject to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space approval in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial term shall not exceed fifteen (15) years)all respects. Lender shall execute and deliver a Subordination Nonits standard form of subordination, non-Disturbance disturbance and Attornment Agreement in the form annexed hereto as Schedule IV attornment agreement to Tenants under any future commercial Major Leases Lease approved by Lender promptly upon request request, with such commercially reasonable changes as may be requested by such Tenants, from time to time, and which are reasonably acceptable to Lender. Borrower shall pay Lender’s costs and expenses in connection with any such subordination, non-disturbance and attornment agreement, including, without limitation, reasonable legal fees and expenses.
(b) Borrower (i) shall observe and perform the obligations which Borrower is required to perform imposed upon the lessor under the LeasesLeases in a commercially reasonable manner; (ii) shall enforce the obligations terms, covenants and conditions contained in the Leases upon the part of the Tenants thereunder to be observed or performed by the tenantsin a commercially reasonable manner, provided, however, Borrower shall not voluntarily terminate or accept a surrender of a Lease without Lender’s prior approval; (iii) shall promptly furnish to Lender not collect any notice of default or termination received by Borrower from any tenant, and any notice of default or termination given by Borrower to any tenantthe Rents more than one (1) month in advance (other than security deposits); (iv) shall not collect execute any rents for more than thirty assignment of lessor’s interest in the Leases or the Rents (30) days in advance of except as contemplated by the time when the same shall become due, except for bona fide security deposits not in excess of an amount equal to two months rentLoan Documents); and (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; (viii) shall not, except with Lender’s prior written consentalter, modify or amend change any Lease (except for minor modifications and amendments entered into in the ordinary course Lease. Upon request, Borrower shall furnish Lender with executed copies of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 Lenderall Leases.
(c) Within thirty (30) days after the Closing DateAll security deposits of Tenants, whether held in cash or any other form, shall not be commingled with any other funds of Borrower and, if cash, shall deliver to Lender the original of each Tenant Letter of Credit, together with be deposited by Borrower at a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at separately designated account under Borrower’s requestcontrol at the Clearing Bank. Borrower shall, promptly return each or if permitted by applicable Legal Requirements, cause all such security deposits (and any Tenant Letter of Credit interest theretofore earned thereon) to Borrower be transferred into the Deposit Account (which shall then be held by Lender in order a separate Account), which shall be held by Lender subject to allow Borrower to apply or realize upon the same in accordance with 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 lease 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, (iii) shall, if permitted pursuant to any Legal Requirements, name Lender as payee or mortgagee thereunder EAST\53909776.4 (bor at Lender’s option, be fully assignable to Lender), and (iv) at 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 Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance compliance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Accountforegoing.
Appears in 1 contract
Sources: Loan Agreement (O'Donnell Strategic Industrial REIT, Inc.)
Leases. (a) All Leases Borrower will comply with the terms and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its leaseconditions of, and (iii) that deliver leased premises at the time and in the condition required by, any cancellationBank-approved lease. Borrower will not enter into, surrender, amend or amendment renew any lease in excess of 2,500 net leaseable square feet or other occupancy agreement in excess of 2,500 net leaseable square feet affecting the Property without Bank's prior written consent. Bank's consent may be conditioned upon receipt of such Lease documents and agreements, including without limitation subordination and attornment agreements and tenant estoppel certificates, as Bank may reasonably require. Prior to executing any leases other than the prior written consent of Lender shall be voidable by Lender. Within ten (10) days after Lender’s requestPublix Lease, Borrower shall prepare and furnish to Lender with a statement of all tenant security deposits, and copies of all Leases not previously delivered to proposed standard lease form ("Lease") for Lender, certified by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s 's approval (which shall not be required for future Leases or unreasonably withheld), which form of Lease extensions or modifications if shall contain a provision subordinating all such leases to the following conditions are satisfied: (A) there exists no Default or Event lien and operation of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels Lender's Mortgage and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not besecurity instruments, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases approved by Lender promptly upon request with such commercially reasonable changes as same may be requested by Tenants, modified 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 accept payment of advanced rent for more than thirty (30) days in advance of two months. Bank shall have the time when the same shall become due, except for bona fide security deposits not right to review and approve all Leases in excess of 2,500 net leaseable square feet prior to Borrower executing same (Bank's approval not to be unreasonably withheld and/or delayed). All Leases shall be subordinate to ▇▇▇▇▇▇'s Mortgage and other security instruments. Borrower shall, throughout the term of the Loan, promptly submit or cause to be submitted by Bank photocopies of all tenant leases and side agreements as to the Project. Borrower shall submit to Bank written Rent Rolls on a quarterly basis or as otherwise requested by Bank upon the occurrence of an "Event of Default" under the Loan Documents. Such Rent Rolls shall specify those portions of space leased, space designation, lease amount equal to two months rent; (v) shall not enter into any ground Lease or master Lease for each space leased, amount of any part deposits, name and address of lessee, amount of space leased during the Property; (vi) shall not further assign preceding reporting period, any rent abatements or encumber concessions and any Lease; (vii) shall not, except with Lender’s prior written consent, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in other information relevant to the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) any Lease termination or cancellation fees leasing program reasonably requested by Bank. All reports shall be paid in form reasonably satisfactory to Lender and held in the Rollover FundBank. Any action in violation All new leases or renewals or modifications of clauses (v), (vi), (vii), and (viii) of this Section 4.1.9(b) existing leases shall be void at the election of Lendersubordinate to Bank's Mortgage and other security instruments and collaterally assigned to Bank.
(c) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 1 contract
Sources: Construction Loan Agreement (Arvida JMB Partners L P)
Leases. Any Leases in excess of three thousand (a3,000) All Leases and other rental arrangements shall in all respects be approved by Lender and square feet (each such Lease a “Material Lease”) written after the date hereof shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn subject to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender approval, which approval shall not be voidable by Lenderunreasonably withheld, conditioned or delayed. Within ten (10) days after Lender’s Upon request, Borrower or Operating Lessee shall furnish to Lender a statement of all tenant security deposits, and with executed copies of all Leases entered into after the date hereof. All renewals of Leases and all proposed Leases shall provide for rental rates comparable to existing local market rates. All proposed Leases shall be on commercially reasonable terms and shall not previously delivered contain any terms which would materially adversely affect Lender’s rights under the Loan Documents. Prior to Lenderentering into any Lease or any modification thereof, certified Borrower or Operating Lessee shall obtain or cause the tenant to obtain all licenses, permits, approvals and consents required as a condition to such Lease and/or to tenant’s operation thereunder, including without limitation any and all consents and approvals required under any applicable Franchise Agreement, Ground Lease, Operations Agreement and/or License. All Leases executed after the date hereof shall provide that they are subordinate to the Mortgage encumbering the applicable Individual Property and that the lessee agrees to attorn to Lender or any purchaser at a sale by foreclosure or power of sale. Borrower as being true or Operating Lessee shall, and correct. Notwithstanding anything shall cause the related Manager to, (i) observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) enforce (if and to the extent commercially reasonable to do so under the circumstances) the terms, covenants and conditions contained in the Loan Documents, Lender’s approval shall not Leases upon the part of the lessee thereunder to be required for future Leases observed or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for performed in a commercially reasonable changes agreed manner or terminate or amend such lease, in either case in a manner not to impair materially the value of the Individual Property involved except that no termination by Borrower or Operating Lessee or acceptance of surrender by a tenant of any Material Lease shall be permitted unless by reason of a tenant default and then only in a commercially reasonable manner to preserve and protect the ordinary course of Borrower’s business, Individual Property; provided, however, there that no such termination or surrender of any Material Lease will be permitted without the written consent of Lender; (iii) not collect any of the Rents relating to the Leases more than one (1) month in advance (other than security deposits); (iv) not execute any other assignment of lessor’s interest in the Leases or the Rents or any other Gross Revenues (except as contemplated by the Loan Documents); (v) not alter, modify or change the terms of the Leases in a manner inconsistent with the provisions of the Loan Documents; and (vi) execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall be no material modification from time to time reasonably require. Notwithstanding anything to the contrary contained herein, neither Borrower nor Operating Lessee shall enter into a lease of all or substantially all of any provisions with regard to subordination and attornment, estoppels and Individual Property (other such certificates or liability or indemnification clauses with respect to landlord than the Operating Leases) without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space , which consent maybe withheld in the Property; (D) the Lease is not Lender’s sole and would not be, after any such extension or modification, absolute discretion. Lender’s approval of a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Material Lease shall be deemed given by Lender if (I) the first correspondence from Borrower to Lender requesting such approval (A) is enclosed in an envelope marked “PRIORITY”, (B) contains a tenant which Borrowerlegend, prominently displayed at the top of each page thereof, in its professional bold, all caps and commercially reasonably judgment, has determined fourteen (14) point or larger font stating that Borrower or Operating Lessee is creditworthy; (G) requesting Lender’s approval of a Material Lease under Section 4.11 of the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time Loan Agreement and that Lender’s failure to respond to such Lease is to be executed; and (H) the Lease is for a term of not more than request within ten (10) years, exclusive Business Days following its receipt of renewal options or rights, which together with the initial term shall not exceed fifteen (15) years). Lender shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement such request may result in the form annexed hereto as Schedule IV to Tenants under future commercial Major Leases approved by Lender promptly upon such 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease)being deemed granted, and (ixC) any is accompanied by an a copy of such proposed Material Lease termination or cancellation fees shall be paid together with an explanation thereof in such reasonable detail as is necessary to allow Lender to adequately and held in completely evaluate the Rollover Fund. Any action in violation of clauses (v)request, (vi)II) Lender shall fail to respond to such request within ten (10) Business Days following its receipt of such request, (vii), and (viiiIII) of this Section 4.1.9(b) shall be void at the election of Lender.
(c) Within thirty (30) days after the Closing Date, Borrower or Operating Lessee shall deliver to Lender a second written request for approval, which request is delivered in the original same manner as contemplated in clause (I) above and states that Lender’s failure to respond to such request within five (5) Business Days following its receipt of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s such second request, promptly return each or any Tenant Letter of Credit to Borrower shall result in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or such request being deemed granted, and (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (bIV) Lender shall take all steps reasonably necessary fail to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of respond to such a draw shall be deposited request in the Clearing Accountmanner contemplated in clause (III) above within such five (5) Business Day period.
Appears in 1 contract
Leases. (a) All Leases and other rental arrangements Borrower shall in all respects be approved by Lender and shall be on cause Mortgage Borrower to not enter into a standard proposed Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgageor a proposed renewal, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy extension or modification of its lease, and (iii) that any cancellation, surrender, or amendment of such an existing Lease without the prior written consent of 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 (a “Proposed Lease”) blacklined to show changes from the standard form of Lease approved by Lender and then being used by Borrower. Lender shall be voidable by approve or disapprove each Proposed Lease or proposed renewal, extension or modification of an existing Lease for which Lender. Within ’s approval is required under this Agreement within ten (10) days 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 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 reject the request in writing delivered to Borrower within ten (10) Business Days after Lender’s receipt by Lender of the request, Borrower shall furnish 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 statement of all tenant security deposits, deemed approval) and copies of all Leases not previously Lender fails to reject the request in writing delivered to Lender, certified by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: within five (A5) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved Business Days after receipt by Lender with no material modificationsof the second such request, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates Proposed Lease or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of proposed renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such modification of an existing Lease is to shall be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases deemed approved by Lender promptly upon request with such commercially reasonable changes as may be requested by Tenants, from time to timeLender, and which are reasonably acceptable Borrower shall be entitled 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 enter into such Proposed Lease or termination received by Borrower from any tenantproposed renewal, and any notice of default extension 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 modification 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 existing Lease; (vii) shall not, except with Lender’s prior written consent, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 1 contract
Sources: Mezzanine Loan Agreement
Leases. (a) All Major Leases and other rental arrangements shall in all respects be approved by Lender renewals, amendments and modifications thereof executed after the date hereof shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by subject to Lender). Such Lease form shall provide that (i) the Lease is subordinate 's prior approval, not to be unreasonably withheld, to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of extent such Lease without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Major Leases or Lease extensions renewals, amendments or modifications if the following conditions thereof are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental at market rates and landlord concessions comparable to existing local on market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 Lenderterms.
(b) Borrower 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, not to be unreasonably withheld; provided, however, that the termination or 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 which Borrower is required to perform imposed upon the lessor under the LeasesLeases in a commercially reasonable manner; (ii) shall enforce the obligations 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 Borrower shall comply with the tenantsprovisions of paragraph (b) above; (iii) shall promptly furnish to Lender not collect any notice of default or termination received by Borrower from any tenant, the rents more than one (1) month in advance (other than security deposits); and any notice of default or termination given by Borrower to any tenant; (iv) shall not collect execute any rents for more than thirty (30) days assignment of lessor's interest in advance of the time when Leases or 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease Rents (except for minor modifications and amendments entered into in as contemplated by the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the LeaseLoan Documents), and (ix) 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.
(cd) Within thirty (30) days after the Closing DateUpon request, Borrower shall deliver to furnish Lender the original with executed copies of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain all Leases.
(e) Upon request from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default existsBorrower, Lender shall provide (ai) at Borrower’s requesta subordination, promptly return nondisturbance and attornment agreement on Lender's standard form to each or lessee under any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same Lease executed in accordance with the terms of this Agreement after the applicable lease or (b) date hereof and which demises at Borrower’s request, retain possession least 12,500 rentable square feet of each or any Tenant Letter of Credit, provided, however, that space in the case of this clause Property and (bii) Lender shall take all steps reasonably necessary a subordination, nondisturbance and attornment agreement to assist Borrower in connection with a draw upon the same in accordance with the terms each lessee under any Lease existing as of the applicable Lease. Any proceeds date hereof to the extent such Lease requires the delivery of such a draw shall be deposited in the Clearing Accountan agreement.
Appears in 1 contract
Leases. (a) All Each Borrower covenants that it shall enforce in a commercially reasonable manner all of its rights under the Leases and other rental arrangements it shall in all respects be approved not take any action, or fail to take any action, which would cause a default by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender)Borrower under any of the Leases. Such Lease form shall provide that (i) In the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) event that any cancellationBorrower receives any written request for its consent or approval pursuant to any of the Leases, surrender, or amendment such Borrower shall promptly deliver a copy of such request (together with any documentation and information supporting such request) to Agent. If such consent or approval involves any Material Lease without the prior written consent of Lender shall be voidable by Lender. Within ten Modification (10) days after Lender’s requestas defined in subsection 7.1.2 below), then no Borrower shall furnish grant its consent or approval pursuant to Lender a statement of all tenant security depositssuch request unless Agent has also granted its written approval, and copies of all Leases not previously delivered to Lender, certified by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s which approval shall not be required for future 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 or Lease extensions or modifications if shall be substantially similar to the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form forms previously approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease Agent. Borrowers shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is be authorized to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 of any Property without Agent's prior written approval. If Agent consents to any Lease or master Lease the renewal of any part of existing Lease, then such Lease shall either be substantially similar to the Property; (vi) shall not further assign form approved by Agent under Section 4.2 above or encumber any Lease; (vii) shall not, except with Lender’s prior written consent, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease)as otherwise approved by Agent, and (ix) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s Agent's request, promptly return each or any Borrowers shall cause the Tenant Letter of Credit thereunder to Borrower execute a subordination and attornment agreement in order form and substance reasonably satisfactory to allow Borrower to apply or realize upon the same in accordance Agent simultaneously with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds Borrowers' execution of such a draw shall be deposited in the Clearing AccountLease or renewal.
Appears in 1 contract
Leases. (a) All 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 and other rental arrangements shall or agreements to lease all or any part of the Mortgaged Property or to terminate or consent to the prior surrender of, or assign its interest in, or modify or amend in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no any material modifications (except as approved by Lender). Such Lease form shall provide that (i) respect any Leases or to permit the Lease is tenant or subtenant thereunder to subordinate its Leases to any lien subordinate to the this Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable thereof by Lender. Within ten (10) days after Lender’s requestMortgagee, 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval which consent shall not be required for future Leases unreasonably withheld, conditioned or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved delayed. Upon receipt by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases approved by Lender promptly upon request with such commercially reasonable changes as may be requested by TenantsMortgagor, 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 deposit such sum in a separate escrow account with a national or state bank having banking offices in the state in which the Mortgaged Property is located. Mortgagor shall promptly give Mortgagee written notice of the 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 to receive any information requested by Mortgagee from the bank as to the status and balance of such account. Said sums shall be held in trust by Mortgagor and disbursed only upon the prior written approval of Mortgagee, which are reasonably acceptable to Lender.
approval shall not be unreasonably withheld. The prior written consent of Mortgagee shall not be required when by law (bor agreement approved by Mortgagee) Borrower (i) shall perform the obligations which Borrower Mortgagor is required to perform return any of such 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 that after an Event of Default by Mortgagor under the Leases; (ii) shall enforce Loan Documents, 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 tenantsums in said bank accounts shall, 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing DateMortgagee, Borrower shall deliver be payable to Lender the original Mortgagee as assignee of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, such bank account; provided, however, that in the case Mortgagee shall have no liability for any prior misapplication of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Accountsaid sums by Mortgagor.
Appears in 1 contract
Sources: Mortgage, Security Agreement and Fixture Filing (NeoStem, Inc.)
Leases. (a) All Leases and other rental arrangements shall in all respects be approved by Lender Except as expressly provided herein, Seller shall, and shall be on a standard cause each of Property Manager, Illinois Manager and Riverside LLC to, refrain from amending any existing Lease form previously approved without Purchaser’s written approval, as provided below, provided that Purchaser shall have no ability to interfere with the administration by Lender with no material modifications (Seller, Property Manager, Illinois Manager or Riverside LLC of any existing Lease as required by the terms of such Lease. In addition, except as approved by Lender). Such Lease form expressly provided herein, neither Seller nor any of Property Manager, Illinois Manager and Riverside LLC shall provide that (i) the Lease is subordinate enter into any new leases with respect to the MortgageProperty (each, a “Proposed New Lease”), without Purchaser’s written approval, as provided below in this Section 5.6.10. Seller shall furnish Purchaser with a true and complete copy of any Proposed New Lease into which Seller or Property Manager, Illinois Manager or Riverside LLC desires to have Riverside LLC enter and such financial information with respect to the proposed tenant as Seller, Property Manager, Illinois Manager or Riverside LLC may have in their possession. Purchaser shall have five (ii5) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment Business Days from receipt of such Proposed New Lease without to approve or disapprove the prior written consent of Lender shall be voidable by Lender. Within ten (10) days after Lender’s requestsame, 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. Notwithstanding anything contained in the Loan Documents, Lender’s which approval shall not be required for future Leases unreasonably withheld, conditioned or delayed. In the event that Purchaser does not approve any such Proposed New Lease, Purchaser shall notify Seller, in writing, of such disapproval prior to expiration of the aforesaid five (5) Business Day period, stating in such written notification under what conditions, if any, Purchaser’s approval would be forthcoming and Purchaser’s agreement to approve such Proposed New Lease extensions or modifications if the following such conditions are satisfied: (A) there exists no Default or Event . All costs of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination tenant improvements and attornment, estoppels and other such certificates or liability or indemnification clauses leasing commissions payable after Closing with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict any lease with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant respect to the Leasing Guidelines attached hereto as Schedule IV; (F) Real Property executed between the Lease shall be to a tenant which Borrower, in its professional date of this Agreement and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) any Lease termination or cancellation fees Closing Date 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 Lenderby Purchaser.
(c) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Behringer Harvard Reit I Inc)
Leases. (a) All Upon ▇▇▇▇▇▇’s written request, Borrower shall furnish Lender with specifically requested executed copies of Leases that are not Major ▇▇▇▇▇▇, and copies of all Major Leases. Unless Borrower has obtained the consent of Lender, not to be unreasonably withheld, all new Leases and other rental arrangements shall in all respects be approved by Lender and shall renewals or amendments of Leases must (i) be on a Borrower’s standard Lease form previously approved by Lender with no material modifications (except as residential lease approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) 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, (iii) 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 tenant shall applicable market, and otherwise contain terms and conditions that are commercially reasonable, (iv) have an initial term of not more than 10 years, (v) to the extent of Major Leases, be subject and subordinate to the Mortgages and, with respect to office Leases, contain provisions for the agreement by the Tenant thereunder to attorn to Lender and any purchaser at a foreclosure sale, such attornment to be self-executing and effective upon acquisition of title to the Property by any purchaser at a foreclosure sale, and (v) for Major Leases, not reasonably be expected to result in a Material Adverse Effect.
(b) Any Major 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 Major Leases, and all terminations, renewals and amendments thereof, and any surrender of rights under or consent to assignment of any Major Lease, shall be subject to the prior written consent of ▇▇▇▇▇▇. Notwithstanding the foregoing, Borrower may, without the consent of ▇▇▇▇▇▇, in response to any pandemic, natural emergency or similar act of God, grant to any Tenant under any Lease rent deferrals or abatements in respect of up to three months’ rent in the aggregate, provided that such deferred or abated rent is required to be repaid prior to the expiration of the then-current term of such Lease. Borrower shall reasonably promptly deliver to Lender has agreed written notice of any such deferral or abatement and copies of any associated agreements or other documentation. Each request for approval of a Major Lease or a Lease that does not meet the requirements of this clause (b) shall be submitted to disturb tenant’s occupancy Lender in an envelope marked “URGENT – ▇▇▇▇▇▇’S ATTENTION REQUIRED WITHIN 10 BUSINESS DAYS”, together with (i) a copy of its leasethe proposed Major Lease or non-conforming Lease, (ii) a summary of the economic terms thereof and any termination options contained therein, and (iii) copies of all written materials obtained by the applicable Borrower in connection with its evaluation of the creditworthiness of the proposed Tenant under the Lease, and shall be deemed approved if Lender shall not have notified Borrower in writing of its disapproval thereof and the reasons for such disapproval within five Business Days after Borrower shall have given Lender written notice confirming that at least ten 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]”).
(c) Borrower shall (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 terminate any cancellationLease, surrenderother than a Major Lease, following a material default thereunder by the respective Tenant; (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 amendment associated rents other than the assignments of such Lease rents and leases under the Mortgages; (v) not cancel or terminate any guarantee of any of the Major Leases (except in accordance with the terms thereof) without the prior written consent of Lender not to be unreasonably withheld, and shall be voidable subject to deemed approval provisions of Section 5.7(b) above; and (vi) not permit any subletting of any space covered by Lendera Major Lease or an assignment of the Tenant’s rights under a Major Lease, except in strict accordance with the terms of such Major Lease. Within ten (10) days after Lender’s request, Borrower shall furnish deliver to each new Major Tenant a Tenant Notice upon execution of such ▇▇▇▇▇▇’s Lease, and promptly thereafter deliver to Lender a statement copy thereof and evidence of all tenant security deposits, and copies such ▇▇▇▇▇▇’s receipt thereof.
(d) Security deposits of Tenants under all Leases not previously delivered to Lender, certified shall be held by the applicable Borrower as being true and correct. Notwithstanding anything contained in segregated security deposit accounts; except that security deposits of Tenants at the Loan Documents, Lender’s approval Riverside Property shall not be required to be held in segregated security deposit accounts unless and until so required by applicable law or the terms of the applicable Leases and shall instead be remitted into the Lockbox Account. Borrower shall maintain books and records of sufficient detail to identify all security deposits of Tenants separate and apart from any other payments received from Tenants. Subject to Legal Requirement, any letter of credit, bond or other instrument held by Borrower in lieu of cash security shall name ▇▇▇▇▇▇ as payee or mortgagee thereunder or be fully assignable to Lender. Borrower hereby pledges to Lender, when the same are forfeited by the applicable Tenant, each such letter of credit, bond or other instrument as security for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Indebtedness. During the continuance of an Event of Default; (B) the Lease is on the standard Lease form approved by , Borrower shall, upon ▇▇▇▇▇▇’s request, deposit with Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 Eligible Account pledged 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 the aggregate security deposit of the Property; Tenants (vi) shall not further assign or encumber and any Lease; (vii) shall not, except with Lender’s prior written consent, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications interest theretofore earned on such security deposits and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Leaseactually received by Borrower), and (ix) any Lease termination such letters of credit, bonds or cancellation fees shall be paid other instruments that Borrower had not returned 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each applicable Tenants or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same applied in accordance with the terms of the applicable lease or Lease (band failure to do so shall constitute a misappropriation of funds pursuant to Section 8.19(b)), excluding security deposits of tenants at the Riverside Property that were theretofore deposited into the Lockbox Account in accordance herewith.
(e) at Borrower’s request, retain possession Borrower shall promptly deliver to Lender a copy of each or written notice from a Tenant under any Tenant Letter of Credit, provided, however, Major Lease claiming that Borrower is in default in the case performance or observance of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms any of the applicable Lease. Any proceeds of such a draw shall material terms, covenants or conditions thereof to be deposited in the Clearing Accountperformed or observed by Borrower.
Appears in 1 contract
Sources: Loan Agreement (Elme Communities)
Leases. (a) All Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. Within ten (10) days after Upon Lender’s request, Borrower shall furnish to Lender a statement of all tenant security deposits, and with executed copies of all Leases, together with a detailed breakdown of income and cost associated therewith to the extent the same has been prepared by Borrower. All new Leases not previously delivered to Lenderand renewals or amendments of Leases must be entered into on an arms-length basis with Tenants whose identity and creditworthiness, certified by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s businessgood faith judgment, providedis appropriate for tenancy in property of comparable quality, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall must provide for rental rates and landlord concessions comparable other economic terms which, in Borrower’s good faith judgment, taken as a whole, are at least equivalent to then-existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrowerbased on the applicable market, and shall be established pursuant must contain terms and conditions that are commercially reasonable (in each case, unless Lender consents to such Lease in its sole discretion). Subject to the Leasing Guidelines attached hereto as Schedule IV; (F) terms of the Lease shall be Encumbered Property Debt Documents, all new Leases must provide that they are subject and subordinate to a tenant which Borrowerany 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 such mortgagee agrees to not disturb such Tenant’s tenancy except in accordance with its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 LenderLease.
(b) All new Leases which are Major Leases, 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 approval prior to the negotiation of a final Lease. Such presentation shall include a summary term sheet of all material terms of the proposed Lease or a draft of the proposed Lease together with any additional information concerning such proposed Lease and the proposed Tenant thereunder as may be reasonably requested by Lender (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”, together with (i) a copy of the proposed Lease or the Lease Term Sheet, (ii) a summary of the economic terms thereof and 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 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 (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 Lender’s reasonable written approval). Borrower shall deliver to Lender a copy of any Lease executed pursuant to a Lease Term Sheet together with an Officer’s Certificate indicating any material deviations from such Lease Term Sheet.
(c) Borrower shall (i) observe and perform all the material obligations which Borrower is required to perform imposed upon the lessor under the Leases; (ii) shall enforce enforce, to the obligations extent commercially reasonable, all of the material terms, covenants and conditions contained in the Leases on the part of the lessee thereunder to be performed observed or performed, short of termination thereof, except that Borrower may terminate any Lease following a material default thereunder by the tenantsrespective Tenant; (iii) shall promptly furnish to Lender not collect any notice of default or termination received by Borrower from any tenant, and any notice of default or termination given by Borrower to any tenantthe 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 and the Encumbered Debt Documents; and (v) not cancel or terminate any guarantee of any of the Major Leases without the prior written consent of Lender. 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 collect be commingled with any rents for more than thirty 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 (30if any) days 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 advance of the time when the same shall become due, except for bona fide security deposits not in excess of an Eligible Account pledged to Lender an amount equal to two months rent; (v) shall not enter into any ground Lease or master Lease of any part the aggregate security deposits of the Property; Tenants (viand any interest theretofore earned on such security deposits and actually received by Borrower) shall which Borrower had 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) any Lease termination or cancellation fees shall be paid returned 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease Tenants or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same applied in accordance with the terms of the applicable Lease. Any proceeds .
(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 draw 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 the form of the SNDA shall be deposited prescribed by the Lease in question, and Lender shall have approved (or been deemed, in accordance with Section 5.7(b) hereof, to 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 Clearing Accountform prescribed by such approved Lease. Notwithstanding the foregoing, in the case of any 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 Lease as approved by Lender. Lender agrees to reasonably negotiate the terms of the SNDA with any Tenant under any Lease, but shall not be required to execute an SNDA that differs in any material respect from the form attached hereto as Exhibit G. All reasonable out-of-pocket attorneys’ fees and disbursements incurred by Lender in connection with such SNDA shall be payable by Borrower within ten Business Days after Lender’s written request therefor, whether or not the SNDA is ultimately executed and/or recorded.
Appears in 1 contract
Leases. (a) All Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the MortgageNot, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfiedPurchaser: (Aa) there exists no Default execute any new Leases affecting the Property, or Event of Defaultany part thereof (the "New Leases"); (Bb) the Lease is on the standard Lease form approved by Lender with no material modificationsamend, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to modify or supplement any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Existing Lease; (Ec) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; terminate (F) the Lease shall be to except upon a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 default by the tenants; (iiitenant thereunder) 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 accept 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 surrender of any part of the Property; (vi) shall not further assign or encumber any Existing Lease; (vii) shall not, except with Lender’s prior written consent, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (bd) at Borrower’s request, retain possession of each or approve any Tenant Letter of Credit, sublease; provided, however, that Seller is authorized to accept the termination of Leases at the end of their existing terms and to expand, extend or renew any Leases pursuant to expansion, extension or renewal options specifically contained in a Lease and properly exercised by the case 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 all developments with regard to said negotiations. The New Form Lease shall contain the following provision: "Submission of this clause Lease by Landlord is not an offer to enter into this Lease but rather is a solicitation for such an offer by Tenant. Landlord shall not be bound 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 if executed by such tenants, Seller agrees to execute the applicable lease and deliver the fully executed lease (ba "Ratified Lease") Lender 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 Ratified Leases or deliver the Ratified Leases to the respective tenants, thereby giving the Ratified Leases full force and effect. Purchaser shall take all steps reasonably necessary to assist Borrower pay at Closing for any brokerage commissions due in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing AccountRatified Leases assigned to Purchaser.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Gyrodyne Co of America Inc)
Leases. (a) All Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease is subordinate to the Mortgage, (ii"a Renewal Lease")) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases provided such proposed Lease or Renewal Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide provides for rental rates and landlord concessions terms comparable to existing local market rates, shall be an arms length transaction rates and in no event be with an Affiliate terms (taking into account the type and quality of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto tenant) as Schedule IV; (F) of the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time date such 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 be executed; compute such rent, is provided for in the original Lease), (B) is an arms-length transaction with a bona fide, independent third party tenant, (C) does not have a materially adverse effect on the value of the Property taken as a whole, (D) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (HE) is written on the Lease is for a term standard form of lease approved by Lender. All proposed Leases which do not more than ten (10) yearssatisfy the requirements set forth in this Commitment shall be subject to the prior approval of Lender and its counsel, exclusive at Borr▇▇▇▇'▇ ▇xpense. Borrower shall promptly deliver to Lender copies of renewal options or rights, all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the initial 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 commercial Major Leases 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 Lenderconditions of this Subsection.
(bii) Borrower (iA) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (B) upon request, shall promptly send copies to Lender of all notices of default which Borrower is required to perform under the Leasesshall send or receive thereunder; (iiC) shall enforce all of the obligations material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be performed by the tenants; observed or performed, (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; (ivD) shall not collect any rents for of the Rents more than thirty one (301) days month in advance of the time when the same shall become due, (except for bona fide security deposits shall not be deemed Rents collected in excess of an amount equal to two months rentadvance); (vE) shall not enter into execute any ground Lease or master Lease of any part other assignment of the Propertylessor's interest in any of the Leases or the Rents; and (viF) shall not further assign consent to any assignment of or encumber subletting under any Lease; (vii) shall notLeases not in accordance with their terms, except with Lender’s without the prior written consent, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 consent of Lender.
(ciii) Within thirty Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (30including any guaranty, letter of credit or other credit support with respect thereto) days after the Closing Dateprovided that such action (taking into account, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this clause (b) Security Instrument and any subordinate agreement binding upon Lender shall take all steps reasonably necessary with respect to assist Borrower in connection such Lease. A termination of a Lease with a draw upon tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the same in accordance with the terms value of the applicable Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(iv) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lend▇▇, ▇▇ter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. Any proceeds The term "Major Lease" shall mean any lease of such a draw shall be deposited in space more than 50,000 sf, including the Clearing Account.current lease at closing to Plasti-Line, Inc..
Appears in 1 contract
Leases. (a) All Leases Borrower covenants and agrees that, from the date hereof and until payment in full of the Debt, Borrower shall, or shall cause Owner to, comply with the terms and provisions of Section 7.02(a) through (c) of the Mortgage as provided in Section 2.14 hereof, and, to the extent such term, covenants and conditions require any consents, approvals or waivers by Mortgage Lender, Lender shall have the same rights to consent, approve or waive.
(b) Subject to the rights of Mortgage Lender in respect of the Rents under the Mortgage Loan Documents and the rights of Senior Mezz Lender in respect of the Rents under the Senior Mezz Loan Documents, at any time that (i) payments are not being made to the Central Account, (ii) following repayment of the Mortgage Loan or (iii) following the occurrence of an Event of Default, then Lender shall have the immediate right to notify all tenants and other rental arrangements third parties to make payments directly to the Lockbox Account. Borrower hereby authorizes and directs the tenants and other third parties to make such payments directly to the Lockbox Account upon notice by Lender. Subject to the rights of Mortgage Lender under the Mortgage Loan Documents and Senior Mezz Lender under the Senior Mezz Loan Documents, security and other refundable deposits of tenants, whether held in cash or any other form, shall, after and during the continuance of an Event of Default, be turned over to Lender (together with any undisbursed interest earned thereon) upon Lender’s request therefor to be held by Lender subject to the terms of the Leases. Any letter of credit or other instrument which Borrower or Owner holds in lieu of cash security deposit shall be maintained in full force and effect in the full amount of such deposits unless replaced by cash deposits as herein-above described and shall in all respects comply with any applicable Legal Requirements and otherwise be approved by Lender and shall be on a standard Lease form previously approved by satisfactory to Lender. Borrower shall, upon request, provide Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. Within ten (10) days after Lender’s request, Borrower shall furnish evidence satisfactory 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s, Senior Mezz Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without LenderOwner’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together compliance with the initial 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 commercial Major Leases 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 Lenderforegoing.
(bc) Borrower (i) shall cause Owner to observe and perform all of its material obligations under the obligations which Borrower is required Leases pursuant to perform under applicable Legal Requirements and shall not do or permit to be done anything to impair the value of the Leases; (ii) shall enforce cause Owner to promptly send copies to Lender of all notices of material default which Owner shall receive under the obligations to be performed by the tenantsLeases; (iii) shall promptly furnish shall, consistent with the Approved Manager Standard, enforce all of the terms, covenants and conditions contained in the Leases to Lender any notice of default be observed or termination received by Borrower from any tenant, and any notice of default or termination given by Borrower to any tenantperformed; (iv) shall not permit Owner to collect any rents for of the Rents under the Leases more than thirty one (301) days month in advance of the time when the same shall become due, (except for bona fide that Owner may collect in advance such security deposits not as are permitted pursuant to applicable Legal Requirements and are commercially reasonable in excess of an amount equal to two months rentthe prevailing market); (v) shall not enter into permit Owner to cancel or terminate any ground Lease or master Lease of any part of the PropertyLeases or accept a surrender thereof in any manner inconsistent with the Approved Manager Standard; (vi) shall not further assign permit Owner to alter, modify or encumber change the terms of any Leaseguaranty of any Major Space Lease or cancel or terminate any such guaranty; (vii) shall notcause Owner, except in accordance with Lender’s prior written consentthe Approved Manager Standard, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially make all reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same seek lessees for space as it becomes vacant and enter into Leases in accordance with the terms hereof; and (viii) shall not permit Owner to materially modify, alter or amend any Major Space Lease or Premises Agreement without Lender’s consent, which consent will not be unreasonably withheld or delayed. In all instances that Owner is required to obtain the consent of Mortgage Lender prior to entering into any Lease, Lease amendment, modification or termination, Borrower shall cause Owner to obtain Lender’s consent to such proposed Lease, Lease amendment, modification or termination prior to permitting or causing Owner to submit the applicable lease proposed Lease, Lease amendment, modification or (b) at Borrower’s requesttermination to Mortgage Lender. Borrower shall, retain possession and shall cause Senior Mezz Borrower and Owner to, promptly send copies to Lender of each all notices of material default which either Senior Mezz Borrower or any Tenant Letter of Credit, provided, however, that in Owner shall receive under the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing AccountLeases.
Appears in 1 contract
Sources: Loan and Security Agreement (Morgans Hotel Group Co.)
Leases. (a) All Leases and other rental arrangements all renewals of Leases executed after the date hereof shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the be on commercially reasonable terms, (ii) provide that such Lease is subordinate to the Mortgage, (ii) Mortgage and that the tenant shall lessee will attorn to LenderLender and any purchaser at a foreclosure sale (provided, provided Lender has agreed not however, that Borrower shall be required only to disturb tenant’s occupancy of its lease, use commercially reasonable efforts to obtain such subordination and attornment provisions in the Warehouse Agreements) and (iii) that not contain any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. Within ten (10) days after terms which would materially adversely affect 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. Notwithstanding anything contained in rights under the Loan Documents. Any Major 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 required for future Leases unreasonably withheld or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event delayed, and subject to delivery by Borrower of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses a Rating Agency Confirmation with respect to landlord without Lendersuch Major Lease. Borrower shall pay all reasonable actual out-of-pocket costs and expenses (including reasonable attorney’s prior written consent; (Cfees but excluding internal fees) the Lease does not conflict incurred by Lender or Servicer in connection with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, its review of a Major Lease; (E) , including, without limitation, the Lease shall provide for rental rates fees and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate charges of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial term shall not exceed fifteen (15) years)Rating Agencies. Lender shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement in the form annexed hereto as Schedule IV to Tenants the Tenant under any future commercial Major Leases Lease approved by Lender or any other Lease entered into, subject to and in accordance with this Section 4.1.9
(a) promptly upon request with such commercially reasonable changes as may be requested by Tenantsthe Tenant, from time to time, and which are reasonably acceptable to Lender, provided that Borrower shall pay all reasonable costs and expenses incurred by Lender in connection with such Subordination Non-Disturbance and Attornment Agreement.
(b) Borrower Borrower:
(i) shall perform observe and perform, or cause to be observed and performed, in a commercially reasonable manner the material obligations imposed upon the lessor under Leases in which Borrower is required to perform under the Leases; lessor;
(ii) shall enforce the obligations enforce, or cause to be performed enforced as against, the lessees, in a commercially reasonable manner the material terms, covenants and conditions contained in the Leases under which Borrower is the lessor, provided, however, Borrower shall not terminate or accept a surrender of a Major Lease without Lender’s prior approval (which approval may be conditioned upon receipt by Lender of a Rating Agency Confirmation) and shall not terminate or accept a surrender of any other Lease without Lender’s approval, unless such termination or surrender, when taken together with any replacement Lease(s), will not have a material adverse effect on the tenants; applicable Individual Property;
(iii) shall promptly furnish not collect, or cause or permit to Lender be collected, any notice of default or termination received by Borrower from the Rents more than one (1) month in advance and shall not grant its approval of Manager’s collection of any tenant, and any notice of default or termination given by Borrower to any tenant; the Rents more than one (1) month in advance (other than security deposits);
(iv) shall not collect grant any rents for more than thirty assignment of lessor’s interest in the Leases or the Rents (30) days in advance of except as contemplated by 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; Loan Documents);
(v) shall not enter into any ground Lease or master Lease of any part of the Propertyintentionally omitted; and
(vi) in its capacity as lessor, shall not further assign or encumber any Lease; (vii) hold all security deposits under all Leases in accordance with Legal Requirements and upon request, shall not, except furnish Lender with Lender’s prior written consent, cancel or accept surrender or termination executed copies of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 Lenderall Leases.
(c) Within thirty Any proposed Lease, or any amendment, modification or termination of a Lease, that in each case requires Lender’s consent pursuant to this Section 4.1.9 which is, in each case, accompanied by a summary of the material terms of such document(s) (30including any economic terms and any termination options) and which states at the top of such submittal “THIS IS A REQUEST FOR APPROVAL OF A LEASE, AMENDMENT, MODIFICATION OR TERMINATION OF A LEASE PURSUANT TO SECTION 4.1.9 OF THE LOAN AGREEMENT. THIS LEASE OR AN AMENDMENT, MODIFICATION OR TERMINATION THEREOF SHALL BE DEEMED APPROVED BY LENDER IF LENDER DOES NOT NOTIFY BORROWER IN WRITING OF ITS DISAPPROVAL, TOGETHER WITH THE GROUNDS FOR SUCH DISAPPROVAL, WITHIN FIFTEEN (15) CALENDAR DAYS,” shall be deemed approved if Lender shall have not notified Borrower in writing of its disapproval (together with a statement of the grounds of such disapproval) within fifteen (15) calendar days after Borrower has submitted such Lease, or any such amendment, modification or termination of a Lease in such manner to Lender.
(d) Borrower shall use good faith efforts to obtain, within sixty (60) days after the Closing DateLender’s request therefor, Borrower shall deliver to Lender the original of each Tenant Letter of CreditSubordination, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that Non-Disturbance and Attornment Agreements in the case of this clause (b) Lender shall take form annexed as Schedule IV from all steps reasonably necessary to assist Borrower Major Tenants then in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Accountexistence.
Appears in 1 contract
Leases. (a) All Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without Without the prior written consent of Lender, 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 for more than one month in advance of its due date, or (iv) enter into any ground lease of the Property. Borrower shall submit to Lender shall be voidable by Lenderfor review a copy of each proposed Lease, together with such other information as Lender may request. Within ten (10) days after At Lender’s request, Borrower shall furnish cause the tenant under any Lease to Lender execute a statement of all tenant security depositssubordination, non-disturbance and copies of all Leases not previously delivered attornment agreement in form and substance satisfactory to Lender, certified by . Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by provide Lender with no material modifications, except for commercially reasonable changes agreed to in a copy of a fully executed original of each Lease executed after the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in date hereof promptly following its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 Lenderexecution.
(b) Borrower (i) shall perform will not suffer or permit any breach or default to occur in any of the obligations which of the landlord under any of the Leases, nor suffer or permit any Lease to be terminated or cancelled by reason of any failure of Borrower is required to perform any of the obligations of the landlord under any Lease. Borrower shall use reasonable efforts to notify Lender promptly in writing in the Leases; (ii) shall event a tenant commits a material default under a Lease. Borrower will not waive any rights under any of the Leases and will enforce the obligations to be performed by of tenants under and guarantors of the tenants; Leases.
(iiic) Borrower shall promptly furnish deliver to Lender any notice all tenant security deposits, including letters of default or termination received by Borrower from any tenantcredit, 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 which security deposits not in excess of an amount equal Lender shall hold subject 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease)Leases. Upon forfeiture of any security deposit, and (ix) any Lease the amount thereof shall be paid to Lender for application to the Indebtedness. All lease termination payments or cancellation fees shall be paid to Lender and held in for application to 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 LenderIndebtedness.
(cd) Within thirty (30) days after the Closing Date, Borrower shall deliver pay for all tenant improvements required by the Leases to Lender the original of each Tenant Letter of Credit, together with a blank assignment extent that the tenants under such Leases are not required to pay for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Accountimprovements.
Appears in 1 contract
Sources: Loan and Security Agreement (Gc Net Lease Reit, Inc.)
Leases. (a) All Upon ▇▇▇▇▇▇’s prior written request, Borrower shall furnish Lender or make available to Lender executed copies of such Leases as are identified in writing by ▇▇▇▇▇▇. Except as otherwise approved in writing by Lender, all new Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that renewals or amendments of Leases must (i) the be entered into on an arms’-length basis with Tenants that are not affiliates of Borrower, provided that any as-of-right exercise of options under an HPP Lease is subordinate shall be deemed to the Mortgagesatisfy this clause (i), (ii) provide for terms and conditions that Borrower reasonably determines are market rental terms, (iii) have an initial term of not more than 10 years, excluding free rent and/or rent abatement periods, (iv) be subject and subordinate to the tenant Mortgages and contain provisions for the agreement by the Tenant thereunder to attorn to Lender and any purchaser at a foreclosure sale, such attornment to be self-executing and effective upon acquisition of title to the Property by any purchaser at a foreclosure sale (which as to Leases entered into on or after the date hereof, may be conditioned upon execution and delivery of a commercially reasonable non-disturbance agreement). Lender, at the request of Borrower (and at Borrower’s sole cost and expense), shall attorn 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, provided Lender has agreed Borrower and the tenant under the applicable Lease) or on such other form reasonably satisfactory to Lender, with respect to any Lease entered into after the Closing Date in accordance herewith that expressly requires the delivery of a subordination, attornment and non-disturbance agreement and with respect to any Lease (including any license) of rooftop or other exterior or de minimis space for antennas, solar panels and the like.
(b) Any Lease that does not conform to disturb tenant’s occupancy of its lease, and (iiithe standards set forth in Section 5.7(a) that any cancellation, surrender, or amendment of such Lease without shall be subject to the prior written consent of Lender Lender, which consent shall not be unreasonably withheld, delayed or conditioned. In addition, all new Leases that are Major Leases, discretionary renewals and material amendments of Major Leases, and any consent to assignment of any Major Lease, shall be voidable by subject to the prior written consent of Lender. Within ten , which consent (10in the absence of any Event of Default) days after shall not be unreasonably withheld, conditioned or delayed; provided that in no event shall Lender have an approval or consent right with respect to a Lease-related matter as to which Borrower does not have an approval or consent right under the applicable Lease; and provided further, Lender’s requeststandard of approval or consent to a Lease-related matter shall not be any less Tenant-favorable than Borrower’s standard of approval or consent provided for in the applicable Lease. Notwithstanding the foregoing, Borrower may, without the consent of ▇▇▇▇▇▇, in response to any pandemic, natural emergency or similar act of God, grant to any Tenant rent deferrals or abatements in respect of up to three months’ rent in the aggregate, provided that such deferred or abated rent is required to be repaid prior to the expiration of the then-current term of such Lease. Borrower shall furnish reasonably promptly deliver to Lender a statement written notice of all tenant security deposits, any such deferral or abatement and copies of all Leases not previously delivered to Lender, certified by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases any associated agreements or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 Lenderdocumentation.
(bc) Borrower shall (i) shall subject to Force Majeure, observe and punctually perform all the material obligations which Borrower is required to perform imposed upon the lessor under the LeasesLeases in a commercially reasonable manner; (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 all of the time when material terms, covenants and conditions contained in 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 Leases on the part of the Property; (vi) shall not further assign lessee thereunder to be observed or encumber any Lease; (vii) shall notperformed, except with Lender’s prior written consentin a commercially reasonable manner, cancel or accept surrender or termination provided that, for avoidance of any Lease; (viii) shall notdoubt, except with Lender’s prior written consent, modify or amend Borrower may terminate any Lease (except for minor modifications and amendments entered into other than a Major Lease in the ordinary course of business, consistent including, following a default beyond any applicable notice and cure or grace periods thereunder by the respective Tenant or in connection with prudent property management practices, Tenant’s exercise of a contractual termination right set forth in the Lease; (iii) not affecting the economic terms collect any of the Leaserents thereunder more than one month in advance (other than security deposits and estimated additional rent amounts), ; (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; and (ixv) not cancel or terminate any guarantee of any of the Major Leases without the prior written consent of Lender, except that Borrower may terminate any Lease following a default beyond any applicable notice and cure or grace periods thereunder by the respective Tenant or in connection with Tenant’s exercise of a contractual termination or cancellation fees shall be paid to Lender and held right set forth in the Rollover FundLease which does not otherwise require Borrower’s consent. Any action in violation of clauses (v), (vi), (vii), and (viiiTo the extent Borrower is then required under Section 3.1(a) of this Section 4.1.9(b) shall be void at the election of Lender.
(c) Within thirty (30) days after the Closing Dateto deliver Tenant Notices, 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 ▇▇▇▇▇▇’s receipt thereof.
(d) Security deposits of Tenants under all Leases shall be held in compliance in all material respects with Legal Requirements and any provisions in Leases relating thereto. Borrower shall maintain books and records of sufficient detail to identify all security deposits of Tenants separate and apart from any other payments received from Tenants. To the original extent permitted by Legal Requirements and any applicable letter of credit, bond or other instrument held by Borrower in lieu of cash security, Borrower hereby pledges to Lender each Tenant Letter such letter of Creditcredit, together with a blank assignment bond or other instrument as security for each Tenant Letter the Indebtedness. During the continuance of Credit as Lender may reasonably require. While any an Event of Default existsDefault, (i) Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment shall, within ten (10) Business Days after receipt of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower▇▇▇▇▇▇’s written request, promptly return each 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 any such letters of credit, bonds or any Tenant Letter of Credit other instruments that Borrower had not returned to Borrower in order to allow Borrower to apply the applicable Tenants or realize upon the same applied in accordance with the terms of the applicable lease or Lease (band failure to do so shall constitute a misappropriation of funds) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause and (bii) Lender shall take disburse any security deposit funds deposited with Lender to each tenant if and when Borrower is obligated to do so pursuant to each tenant’s Lease.
(e) During a Trigger Period, Borrower shall promptly deliver to Lender a copy of each written notice from a Tenant under any Major Lease claiming that Borrower is in material default, beyond any notice, grace and/or cure period, in the performance or observance of any of the material terms, covenants or conditions thereof to be performed or observed by Borrower, if the same would be reasonably likely to result in an Individual Material Adverse Effect.
(f) Each time that Borrower delivers a written request for ▇▇▇▇▇▇’s consent under this Section, such consent shall be deemed granted if the Deemed Approval Conditions have been satisfied with respect thereto. Regardless of whether ▇▇▇▇▇▇’s consent is granted, Borrower shall pay all steps reasonably necessary to assist Borrower of Lender’s reasonable out-of-pocket costs and expenses in connection with a draw upon the same each such request (including reasonable out-of-pocket legal fees and disbursements) but shall not be required to pay any servicing or similar fee in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Accountconnection therewith.
Appears in 1 contract
Leases. (a) 5.15.1 All Leases entered into by Borrower after the date hereof shall be substantially in either the lease form in use for the Mortgaged Property at the time of the Closing or such other form of lease as may be approved in advance in writing by Collateral Agent (an "Approved Lease Form"), provided that Collateral Agent shall not unreasonably withhold its approval with respect to changes in the Approved Lease Form. Without limiting the following sentence, all new Material Leases and other rental arrangements all renewals of or amendments to existing Material Leases shall be consistent in form and substance in all material respects be approved by Lender and with existing Leases. Any new Material Lease or renewal of an existing Material Lease shall be on a standard subject to the prior written approval of Collateral Agent, which approval may be withheld in Collateral Agent's sole and absolute, but which will be deemed granted if Collateral Agent has not responded within ten (10) Business Days from the date Collateral Agent receives such information and materials concerning Borrower's request as Collateral Agent may reasonably request (and provided such proposed Lease form previously approved by Lender is delivered to Collateral Agent with no material modifications correspondence indicating in bold-type face that Collateral Agent's response is required under the Loan Documents within ten (except as approved by Lender10) Business Days). Such Lease form shall provide that (i) the Lease is subordinate to the MortgageBorrower will not, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. Within ten Collateral Agent, Modify any Material Lease (10) days after Lender’s requestbut Borrower may, 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s upon prior written consent; (C) notice to Collateral Agent, terminate a Material Lease under which the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space Tenant is in the Property; (D) the Lease is not material default beyond applicable notice, grace and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial term shall not exceed fifteen (15) yearscure periods). Lender All tenants under all new Material Leases shall execute and deliver subordination, non-disturbance and attornment agreements with Collateral Agent on Collateral Agent's then current form or otherwise in form and substance satisfactory to Collateral Agent in its good faith discretion.
5.15.2 Borrower will duly and punctually perform all material covenants and agreements expressed as binding upon it under the Leases and other material agreements to which it is a Subordination Non-Disturbance and Attornment Agreement in party with respect to the form annexed hereto as Schedule IV to Tenants under future commercial Major Leases approved by Lender promptly upon request with such commercially reasonable changes as may be requested by Tenants, from time to timeMortgaged Property or any part thereof, 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall will use commercially reasonable efforts to obtain from enforce or secure the Issuing Bank its consent to an assignment performance of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms and every material obligation and undertaking of the applicable lease respective parties under such Leases and other agreements, and Borrower will appear and defend, at its cost and expense, any action or proceeding arising under or in any manner connected with (bi) at Borrower’s requestthe Leases or the obligations and undertakings of any lessee or other party thereunder, retain possession and (ii) such other agreements or the obligations and undertakings of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Accountparty thereunder.
Appears in 1 contract
Leases. (a) All Leases and other rental arrangements all renewals of Leases executed after the date hereof shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) provide for rental rates comparable, in the good faith judgment of Borrower, to existing local market rates for similar properties, (ii) be on commercially reasonable terms, and (iii) provide that such Lease is subordinate to the Mortgage, (ii) Mortgage encumbering the tenant shall applicable Individual Property and that the lessee will attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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) All Major Leases and all renewals, amendments and modifications thereof executed after the date hereof shall be subject to Lender's prior approval, which shall not unreasonably be withheld. All Leases and renewals of Leases executed after the Effective Maturity Date shall be subject to Lender's prior approval.
(c) Borrower shall not terminate or accept a surrender of any Major Lease without Lender's prior approval, except upon the expiration of the Lease term.
(d) Borrower (i) shall observe and perform the obligations which Borrower is required to perform imposed upon the lessor under the LeasesLeases in a commercially reasonable manner; (ii) shall enforce the obligations material terms, covenants and conditions contained in the Leases upon the part of the lessee thereunder to be observed or performed by the tenantsin 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 promptly furnish to Lender not collect any notice of default or termination received by Borrower from any tenant, the rents more than one (1) month in advance (other than security deposits); and any notice of default or termination given by Borrower to any tenant; (iv) shall not collect execute any rents for more than thirty (30) days assignment of lessor's interest in advance of the time when Leases or 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease Rents (except for minor modifications and amendments entered into in as contemplated by the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the LeaseLoan Documents), and (ix) 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.
(ce) Within thirty (30) days after the Closing DateUpon request, Borrower shall deliver to furnish Lender the original with executed copies of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing AccountLeases.
Appears in 1 contract
Sources: Loan Agreement (Hilton Hotels Corp)
Leases. (a) All Leases and other rental arrangements all renewals of Leases executed after the date hereof shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the contain market rate terms and conditions, (ii) provide that such Lease is subordinate to the Mortgage and that, upon the foreclosure of the Mortgage, (ii) sale by power of sale thereunder or deed-in-lieu of foreclosure, the tenant shall Tenants, at Agent’s discretion, will attorn to Lenderthe transferee of the Property, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is prepared on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines lease attached hereto as Schedule IV; (F) XIII with such modifications as are consistent with the Lease shall be to a tenant which Borrower, market and that result from arms-length negotiations that Borrower conducts in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; good faith and (Hiv) not include any option in favor of Tenant to acquire all or any portion of the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 LenderProperty.
(b) Borrower may or may cause Operating Company to enter into new Leases which are not Major Leases without Agent’s consent provided that no Event of Default then exists, the Lease complies with the requirements set forth in subsection (ia) 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 tenantabove, and any notice the Tenant thereunder is not an Affiliate of default Borrower or termination given by Operating Company. In addition, 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 may enter into renewals, amendments, extensions, restatements, expansions and modifications of Leases which are not Major Leases without the consent of Agent provided that no Event of Default then exists, any ground Lease such renewal, amendment, extension, restatement, expansion or master Lease modification complies with the requirements set forth in subsection (a) above, and the Tenant thereunder is not an Affiliate of any part of the Property; (vi) shall not further assign Borrower or encumber any Lease; (vii) shall not, except with Lender’s prior written consent, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend Operating Company. Borrower may terminate any Lease (except for minor modifications and amendments entered into in which is not a Major Lease without the ordinary course consent of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 LenderAgent.
(c) Within thirty All Major Leases and all renewals, amendments, extensions, restatements, expansions, modifications and terminations thereof (30a “Major Lease Modification”) days executed after the Closing Datedate hereof shall, prior to execution, be subject to Agent’s approval which shall not be unreasonably withheld, delayed or conditioned. Borrower shall not permit or consent to the assignment of any Major Lease without Agent’s prior consent, which shall not be unreasonably withheld, delayed or conditioned, unless and except to the extent the right to assign without Borrower’s consent is already reserved to the tenant thereunder in any Major Lease in existence on the date of this Agreement or is included in any Major Lease hereafter entered into in compliance with the terms of this Section 4.1.10(c). Each request for approval and consent of a Major Lease or Major Lease Modification shall contain a legend in capitalized bold letters on the top of the cover page stating: “THIS IS A REQUEST FOR CONSENT TO A [MAJOR LEASE] [MAJOR LEASE MODIFICATION]. AGENT’S RESPONSE IS REQUESTED WITHIN FIVE (5) BUSINESS DAYS. AGENT’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD SHALL RESULT IN AGENT’S CONSENT BEING DEEMED TO HAVE BEEN GRANTED.” Each such request shall include the following documentation with such request: (i) the Major Lease or Major Lease Modification, as applicable, and (ii) all other materials reasonably necessary in order for Agent to evaluate such Major Lease or Major Lease Modification. In the event that Agent fails to grant or withhold its approval and consent to such Major Lease or Major Lease Modification within such five (5) Business Day period (and, in the case of a withholding of consent, stating the grounds therefor in reasonable detail), then Agent’s approval and consent shall be deemed to have been granted. In addition, Borrower may, at Borrower’s option, prior to delivering to Agent any such Major Lease or Major Lease Modification for Agent’s approval, first deliver to Agent for Agent’s approval a tenant application and budget setting forth the major economic and other business terms (the “TAB”) of such proposed Major Lease or Major Lease Modification, provided, however, that a TAB shall only be deemed delivered from the date additional information reasonably required for evaluation of the TAB is delivered to Agent; provided, further, that a TAB shall be deemed delivered as of the date received if Agent does not request additional information with respect thereto within three (3) Business Days following its initial receipt thereof. Each such request for approval and consent of a TAB for a Major Lease or Major Lease Modification shall contain a legend in capitalized bold letters on the top of the cover page stating: “THIS IS A REQUEST FOR CONSENT TO THE TAB FOR A [MAJOR LEASE] [MAJOR LEASE MODIFICATION]. AGENT’S RESPONSE IS REQUESTED WITHIN FIVE (5) BUSINESS DAYS. AGENT’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD SHALL RESULT IN AGENT’S CONSENT BEING DEEMED TO HAVE BEEN GRANTED.” In the event that Agent fails to grant or withhold its approval and consent to such TAB within such five (5) Business Day period (and, in the case of a withholding of consent, stating the grounds therefor in reasonable detail), then Agent’s approval and consent shall be deemed to have been granted. Subject to the approval time periods set forth above with respect to Major Leases and Major Lease Modifications, so long as any Major Lease or Major Lease Modification does not -71- contain material business terms which differ more than five percent (5%) on a net effective basis from the material business terms set forth in the TAB approved or deemed approved by Agent and otherwise does not contain any lease terms which deviate materially from the terms of the standard form of Lease used for the Property and approved by Agent, Agent’s consent to such Major Lease or Major Lease Modification shall not be required but shall be deemed given for purposes of Sections 4.1.11 and 6.3.2 hereof. All Major Lease, Major Lease Modifications and TABs being sent to Agent for approval in accordance with this Section 4.1.10(c) shall be sent in accordance with the notice provisions set forth in Section 10.6 and shall, in addition, be sent to ▇▇. ▇▇▇▇▇▇▇ ▇. Isaacman at the following address: HSBC Bank USA, National Association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
(d) Notwithstanding the foregoing, Borrower shall deliver have the right to Lender the original terminate any Major Lease and no consent of each Tenant Letter Agent shall be required in respect of Creditsuch termination, together provided that (i) Borrower simultaneously replaces such terminated Lease with a blank assignment Lease or Leases (for each all or substantially all of the space which was covered by the Lease being terminated) that either (A) has been approved or deemed approved by Agent if required in accordance with Section 4.1.10(b) or (B) otherwise meets the requirements of this Section 4.1.10, or (ii) the applicable Tenant Letter of Credit as Lender may reasonably require. While is in default thereunder beyond any Event of Default exists, applicable notice and grace periods.
(e) Borrower shall use and shall cause Operating Company to (i) promptly perform and observe all of the material terms, covenants and conditions required to be performed and observed by Borrower or Operating Company under the Leases, and (ii) not collect any of the Rents more than one (1) month in advance (except that Borrower may collect (A) such security deposits and last month’s Rents as are permitted by Legal Requirements and are commercially reasonable efforts to obtain from in the Issuing Bank its consent to an assignment prevailing market, (B) pre-paid estimates of each Tenant Letter recoveries of Credit to Lender. Provided no Event of Default existsoperating expenses and taxes, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same and other charges in accordance with the terms of the applicable lease or each Lease).
(bf) at Borrower’s Upon request, retain possession Borrower shall furnish Agent with executed copies of each or any Tenant Letter of Creditall Leases, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Accountcertified as true and complete by Borrower.
Appears in 1 contract
Sources: Loan Agreement
Leases. (a) All Borrower shall furnish Lender with executed copies of all Leases. Borrower hereby covenants and agrees that all new Leases and renewals, modifications or amendments of Leases shall be entered into on an arms-length basis with Tenants whose identity and creditworthiness is, in the good faith judgment of Borrower, appropriate for tenancy in a class A office building, shall provide for rental rates and other rental arrangements shall economic terms which, taken as a whole, are in all respects be approved by Lender the good faith judgment of Borrower at least equivalent to then-existing market rates, based on the applicable market (but taking into account, in the case of a renewal or modification, the effect on the rent for the remainder of the original term), and shall be on contain terms and conditions that (taken as a standard whole) are in the good faith judgment of Borrower Commercially Reasonable (in each case, unless Lender consents to such Lease form previously approved by Lender with no material modifications (except as approved by Lenderin its reasonable discretion). Such To the extent that Borrower has a consent right with respect to any sublease or sub-sublease or similar occupancy agreement between a Tenant and a third party, Borrower shall not grant such consent unless the identity and creditworthiness of the proposed subtenant or sub-subtenant is, in the good faith judgment of Borrower, appropriate for tenancy in a Class A office building (unless Lender consents to such sublease or sub-sublease in its reasonable discretion or Borrower does not have the right under the applicable Lease form to reject such sublease on such grounds). Nothing herein is intended to restrict, and Borrower shall be entitled without the consent of Lender, to enter into Leases (including renewals and amendments) which Borrower is obligated to enter into under any then existing Lease. 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, provided such mortgagee agrees not to disturb such Tenant's tenancy except in accordance with its Lease.
(b) All new Major Leases, and all modifications or amendments (other than Non-Material Lease Modifications), terminations and renewals of Major Leases, and any surrender of rights under any Major Lease (unless required under the applicable Leases (e.g., where a Tenant has an existing option to terminate)), shall be subject to the prior written approval of Lender. In each case where Lender's approval is required under the previous sentence, such approval shall not be unreasonably withheld, conditioned or delayed and shall not be withheld unless (i) the rent and other amounts payable under such Major Lease is subordinate to not at then existing market rates, taking into account the Mortgagelocation of the demised premises and the extent of any tenant improvements, allowances, concessions and free rent (taken as a whole) and taking into account, in the case of a renewal or modification, the effect on the rent for the remainder of the original term, (ii) the tenant proposed terms of such proposed Major Lease (taken as a whole) are not Commercially Reasonable, or (iii) the identity or creditworthiness of the proposed Tenant (if not an existing Tenant under a Major Lease) is inappropriate for tenancy in a class A office building. Nothing herein is intended to restrict, and Borrower shall attorn to be entitled without the consent of Lender, provided to enter into Leases (including renewals and amendments) which Borrower is obligated to enter into under any then existing Lease. Each request for approval of a Major Lease (or any other Lease, including any renewal, modification or termination, where Lender's consent is required hereunder) which is submitted to Lender has agreed in an envelope marked "URGENT - LENDER'S ATTENTION REQUIRED WITHIN 10 BUSINESS DAYS", together with a copy of (x) the proposed Lease, a summary of the major economic terms thereof and any non-customary 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 (y) with respect to a proposed termination, a description of the reason therefor, shall be deemed approved if Lender shall not to disturb tenant’s occupancy have notified the Borrower in writing of its leasedisapproval and the reasons therefor within 10 Business Days after Lender's receipt of 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). 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. Notwithstanding anything to the contrary herein, no amendment, modification, termination or renewal of the Lease of the garage space in the Property shall require Lender's consent unless same will result in such space no longer being used as parking garage. At Borrower's written request, Lender shall enter into a subordination, non-disturbance and attornment agreement ("SNDA") with (i) any Tenant under a Lease that has been approved or deemed approved by Lender, (ii) any Tenant whose Lease was executed prior to the date hereof and (iii) any retail tenant whose Lease is entered into in accordance with this Agreement. Each such SNDA shall be on Lender's standard form, with such modifications as Lender may reasonably approve, except that with respect to any cancellationLease that was executed prior to the date hereof and that contained a form of SNDA, surrenderLender shall execute an SNDA in such form. In determining whether changes are reasonable, Lender acknowledges that revisions equivalent to those contained in existing SNDAs signed by Lender are reasonable. Upon the written request of Borrower, Lender shall confirm in writing whether any proposed Lease, modification, amendment, termination or amendment renewal of a Lease requires Lender's consent hereunder and Borrower and the tenant under the Lease may rely thereon. Borrower shall include in its request the reasons it believes consent is not required hereunder. Borrower shall in connection therewith provide Lender with such additional information or documents as Lender may reasonably require in order to make such determination.
(c) Borrower shall (i) deliver to each new Tenant a Tenant Notice upon execution of such Tenant's Lease (unless the same is included in substance in such 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 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, provided that Borrower may terminate any Lease following a material default thereunder by the respective Tenant; (iv) not seek to collect any of the rents thereunder more than one month in advance without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 execute any ground Lease assignment of lessor's interest in the Leases or master Lease associated rents other than the Mortgage or Assignment of any part of the PropertyRents and Leases; and (vi) shall during the continuance of an Escrow Period, not further assign cancel or encumber terminate any Lease; (vii) shall not, except with Lender’s guarantee of any of the Major Leases without the prior written consent, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 consent of Lender.
(cd) Within thirty (30) days after the Closing DateSecurity 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 deliver be deposited by Borrower at such commercial or 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 applicable Legal Requirements shall be maintained in full force and effect unless replaced by cash deposits as described above, 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 pledged to Lender as security for the original Indebtedness and shall, in all respects, comply with any applicable Legal Requirements. Borrower shall, upon Lender's request, provide Lender with evidence reasonably satisfactory to Lender of each Tenant Letter Borrower's compliance with the foregoing. During the continuance of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default existsDefault, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to shall, upon Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s 's request, promptly return each or any Tenant Letter deposit with Lender in an Eligible Account pledged to and under the sole dominion and control of Credit Lender an amount equal to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms 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 lease Tenants or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same applied in accordance with the terms of the applicable Lease. Any proceeds of , and Lender shall hold such security deposits in a draw shall be deposited segregated account and apply or return such security deposits and any accrued interest in accordance with the Clearing Accountapplicable Leases.
Appears in 1 contract
Leases. (a) All Leases and other rental arrangements all renewals of Leases executed after the date hereof shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the be on commercially reasonable terms, (ii) provide that such Lease is subordinate to the Mortgage, (ii) Mortgage and that the tenant shall lessee will attorn to LenderLender and any purchaser at a foreclosure sale (provided, provided Lender has agreed not however, that Borrower shall be required only to disturb tenant’s occupancy of its lease, use commercially reasonable efforts to obtain such subordination and attornment provisions in the Warehouse Agreements) and (iii) that not contain any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. Within ten (10) days after terms which would materially adversely affect 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. Notwithstanding anything contained in rights under the Loan Documents. Any Major 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 required for future Leases unreasonably withheld or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event delayed, and subject to delivery by Borrower of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses a Rating Agency Confirmation with respect to landlord without Lendersuch Major Lease. Borrower shall pay all reasonable actual out-of-pocket costs and expenses (including reasonable attorney’s prior written consent; (Cfees but excluding internal fees) the Lease does not conflict incurred by Lender or Servicer in connection with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, its review of a Major Lease; (E) , including, without limitation, the Lease shall provide for rental rates fees and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate charges of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial term shall not exceed fifteen (15) years)Rating Agencies. Lender shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement in the form annexed hereto as Schedule IV to Tenants the Tenant under any future commercial Major Leases Lease approved by Lender or any other Lease entered into, subject to and in accordance with this Section 4.1.9
(a) promptly upon request with such commercially reasonable changes as may be requested by Tenantsthe Tenant, from time to time, and which are reasonably acceptable to Lender, provided that Borrower shall pay all reasonable costs and expenses incurred by Lender in connection with such Subordination Non-Disturbance and Attornment Agreement.
(b) Borrower Borrower:
(i) shall perform observe and perform, or cause to be observed and performed, in a commercially reasonable manner the material obligations imposed upon the lessor under Leases in which Borrower is required to perform under the Leases; lessor;
(ii) shall enforce the obligations enforce, or cause to be performed enforced as against, the lessees, in a commercially reasonable manner the material terms, covenants and conditions contained in the Leases under which Borrower is the lessor, provided, however, Borrower shall not terminate or accept a surrender of a Major Lease without Lender’s prior approval (which approval may be conditioned upon receipt by Lender of a Rating Agency Confirmation) and shall not terminate or accept a surrender of any other Lease without Lender’s approval, unless such termination or surrender, when taken together with any replacement Lease(s), will not have a material adverse effect on the tenants; applicable Individual Property;
(iii) shall promptly furnish not collect, or cause or permit to Lender be collected, any notice of default or termination received by Borrower from the Rents more than one (1) month in advance and shall not grant its approval of Manager’s collection of any tenant, and any notice of default or termination given by Borrower to any tenant; the Rents more than one (1) month in advance (other than security deposits);
(iv) shall not collect grant any rents for more than thirty assignment of lessor’s interest in the Leases or the Rents (30) days in advance of except as contemplated by 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; Loan Documents);
(v) shall not enter into any ground Lease or master Lease of any part of the Propertyintentionally omitted; and
(vi) in its capacity as lessor, shall not further assign or encumber any Lease; (vii) hold all security deposits under all Leases in accordance with Legal Requirements and upon request, shall not, except furnish Lender with Lender’s prior written consent, cancel or accept surrender or termination executed copies of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 Lenderall Leases.
(c) Within thirty Any proposed Lease, or any amendment, modification or termination of a Lease, that in each case requires Lender’s consent pursuant to this Section 4.1.9 which is, in each case, accompanied by a summary of the material terms of such document(s) (30including any economic terms and any termination options) and which states at the top of such submittal “THIS IS A REQUEST FOR APPROVAL OF A LEASE AMENDMENT, MODIFICATION OR TERMINATION OF A LEASE PURSUANT TO SECTION 4.1.9 OF THE LOAN AGREEMENT. THIS LEASE OR AN AMENDMENT, MODIFICATION OR TERMINATION THEREOF SHALL BE DEEMED APPROVED BY LENDER IF LENDER DOES NOT NOTIFY BORROWER IN WRITING OF ITS DISAPPROVAL, TOGETHER WITH THE GROUNDS FOR SUCH DISAPPROVAL, WITHIN FIFTEEN (15) CALENDAR DAYS,” shall be deemed approved if Lender shall have not notified Borrower in writing of its disapproval (together with a statement of the grounds of such disapproval) within fifteen (15) calendar days after Borrower has submitted such Lease, or any such amendment, modification or termination of a Lease in such manner to Lender.
(d) Borrower shall use good faith efforts to obtain, within sixty (60) days after the Closing DateLender’s request therefor, Borrower shall deliver to Lender the original of each Tenant Letter of CreditSubordination, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that Non-Disturbance and Attornment Agreements in the case of this clause (b) Lender shall take form annexed as Schedule IV from all steps reasonably necessary to assist Borrower Major Tenants then in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Accountexistence.
Appears in 1 contract
Leases. (a) Lender acknowledges that no Leases are in effect at the Property as of the Closing Date. All Leases and other rental arrangements all renewals of Leases executed after the date hereof shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for economic terms, including rental rates and landlord concessions rates, comparable to existing local market ratesrates for similar properties, shall (ii) be an arms length transaction and on commercially reasonable terms, (iii) have a term of not less than three (3) years (unless Lender approves in no event be with an Affiliate of Borrowerwriting a shorter term), and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (Fiv) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for have a term of not more than ten (10) years, exclusive including all extensions and renewals (unless Lender approves in writing a longer term), (v) provide that such Lease is subordinate to the Mortgage and the Assignment of renewal options or rightsLeases and that the Tenant thereunder will attom to Lender and any purchaser at a foreclosure sale, which together (vi) be to Tenants that are creditworthy, (vii) be written substantially in accordance with the initial term 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 exceed fifteen permit or consent to any assignment or sublease of any Major Lease without Lender's prior written approval (15) yearsother than assignments or subleases expressly permitted under any Major Lease pursuant to a unilateral right of the Tenant thereunder not requiring the consent of Borrower). Lender Lender, at Borrower's sole cost and expense, shall execute and deliver a Subordination Nonits then standard form of subordination, non-Disturbance disturbance and Attornment Agreement in the form annexed hereto as Schedule IV attomment agreement to Tenants under any future commercial Major Leases Lease approved by Lender promptly upon request request, with such commercially reasonable changes as may be requested by Tenants, from time to time, such Tenants and which are reasonably acceptable to Lender.
(b) Borrower (i) shall observe and perform the obligations which Borrower is required to perform imposed upon the lessor under the LeasesLeases in a commercially reasonable manner; (ii) shall enforce the obligations terms, covenants and conditions contained in the Leases upon the part of the Tenants thereunder to be observed or performed by the tenantsin a commercially reasonable manner, provided, however, Borrower shall not terminate or accept a surrender of a Lease without Lender's prior approval; (iii) shall promptly furnish to Lender not collect any notice of default or termination received by Borrower from any tenant, and any notice of default or termination given by Borrower to any tenantthe Rents more than one (1) month in advance (other than security deposits); (iv) shall not collect execute any rents for more than thirty assignment of lessor's interest in the Leases or the Rents (30) days in advance of except as contemplated by the time when the same shall become due, except for bona fide security deposits not in excess of an amount equal to two months rentLoan Documents); and (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; (viii) shall not, except with Lender’s prior written consentalter, modify or amend change any Lease (except so as to change the amount of or payment date for minor modifications and amendments entered into in rent, change the ordinary course of businessexpiration date, consistent with prudent property management practicesgrant any option for additional space or term, not affecting materially reduce the economic terms obligations of the Lease)Tenant or increase the obligations of the lessor. Upon request, and (ix) any Lease termination or cancellation fees Borrower shall be paid furnish Lender with executed copies of all Leases. Borrower shall promptly send copies to Lender and held in of all written notices of material default which Borrower shall receive under 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 LenderLeases.
(c) Within thirty (30) days after All security deposits of Tenants, whether held in cash or any other form, shall 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 Borrower's control at the Closing DateClearing Bank. After the commencement of a Sweep Event Period, Borrower shall deliver to Lender the original of each Tenant Letter of Creditshall, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to upon Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s 's request, promptly return each or if permitted by applicable Legal Requirements, cause all such security deposits (and any Tenant Letter of Credit interest theretofore earned thereon) to Borrower be transferred into the Cash Management Account (which shall then be held by Cash Management Bank in order a separate Account), which shall be held by Cash Management Bank subject to allow Borrower to apply or realize upon the same in accordance with 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 lease 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, (iii) shall, if permitted pursuant to any Legal Requirements, name Lender as payee or mortgagee thereunder (bor at Lender's option, be fully assignable to Lender), and (iv) at Borrower’s shall in all respects comply with any applicable Legal Requirements and otherwise be satisfactory to Lender. Borrower shall, upon request, retain possession provide Lender with evidence satisfactory to Lender of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance Borrower's compliance with the terms foregoing.
(d) Borrower shall have the right, without the consent or approval of Lender, to terminate or accept a surrender of any Lease that is not a Major Lease so long as such termination or surrender is (i) by reason of a tenant default and (ii) in a commercially reasonable manner to preserve and protect the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing AccountProperty.
Appears in 1 contract
Leases. (a) All Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that Section 5.22(a) of the Seller Disclosure Schedules sets forth Seller’s good faith determination of: (i) each leasehold interest of Seller, any Purchased Company or each of their respective Affiliates in all real property used in connection with the Lease Business, including any such leasehold interest that is subordinate to used jointly by the MortgageBusiness and any JCI Retained Business (together with all extensions and modifications thereto, the “Business Leases”); (ii) which Business Leases govern real property that is “substantially GWS only” and will therefore be included in the tenant shall attorn to LenderPurchased Assets (each, provided Lender has agreed not to disturb tenant’s occupancy of its lease, a “Transferred Lease”); and (iii) which Business Leases govern real property that any cancellationis not “substantially GWS only” and will therefore be included in the Excluded Assets (each, surrender, or amendment of such Lease without a “Retained Lease”). During the prior written consent of Lender shall be voidable by Lender. Within ten one hundred and twenty (10120) days after Lender’s requestfollowing the date hereof (the “Lease Determination Period”), Borrower Seller shall furnish to Lender a statement of all tenant security depositsprovide Purchaser with documentation and other information reasonably requested by Purchaser regarding each Business Lease, and copies Seller and Purchaser shall cooperate in good faith to determine whether any Business Leases designated by Seller as a Transferred Lease should be redesignated as a Retained Lease or any Business Leases designated by Seller as a Retained Lease should be redesignated as a Transferred Lease (and update Section 5.22(a) of the Seller Disclosure Schedules accordingly) based on the principle that all Business Leases governing real property where substantially all of the usable space is occupied by Business Employees will be designated Transferred Leases. Purchaser may only not previously delivered to Lender, certified by Borrower accept a characterization of a Business Lease as being true and correct. Notwithstanding anything contained a Transferred Lease in the Loan Documents, Lender’s approval shall not be required good faith for future Leases or Lease extensions or modifications if the following conditions are satisfiedreasons: (AI) there exists no Default or Event of Defaulton the real property governed by such Business Lease a previously undisclosed issue relating to Environmental Laws; (BII) the Lease is on the standard Lease form approved by Lender with no material modifications, except rent for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Business Lease is not economic and would is not be, after any such extension or modification, a Major Leaseconsistent with the Business Financial Statements; (EIII) substantially all of the Lease shall provide for rental rates usable space was not continuously occupied by Business Employees during the twelve (12)-month period prior to Closing; or (IV) any other reason that is similarly adverse to Purchaser and landlord concessions comparable to existing local market ratesits Affiliates as clauses (I), shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (FII) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; or (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial term shall not exceed fifteen (15) yearsIII). Lender shall execute and deliver Purchaser may not otherwise fail to accept a Subordination Non-Disturbance and Attornment Agreement in characterization of a Business Lease as a Transferred Lease, including, for example, by reason of Purchaser owning or leasing a facility nearby that could accommodate the form annexed hereto as Schedule IV Business Employees occupying such Business Lease or, subject to Tenants under future commercial Major Leases approved by Lender promptly upon request with such commercially reasonable changes as may be requested by Tenantsclause (II) above, from time to time, and which are reasonably acceptable to Lenderbecause the Business Lease contains unfavorable or uneconomic terms or conditions.
(b) Borrower From the date hereof until the Closing Date, Seller and Purchaser shall use reasonable best efforts to negotiate, execute (or cause their applicable Affiliates to execute) and deliver a sublease agreement in a form reasonably acceptable to both parties pursuant to which Seller or its applicable Affiliates shall agree to sublease the portion of the Retained Leases set forth on Section 5.22(b) of the Seller Disclosure Schedules (each, a “Shared Facility”) occupied by Business Employees as of the Closing, (each such sublease, a “Sublease Agreement”) upon mutually agreeable terms and conditions with a rental amount equal to the amount charged by Seller or its Affiliates to the Business as of the Closing for such Shared Facility and consistent with the Business Financial Statements and with a term to be determined by Purchase prior to Closing of either twelve (12) months, fifteen (15) months, or eighteen (18) months, in each case following the Closing Date; provided that (i) any Sublease Agreement governing the Shared Facilities marked with an “*” shall perform expire at the obligations which Borrower is required termination of the applicable Retained Lease, provided that Seller will use good faith efforts to perform under the Leases; support an extension of such Retained Lease if Purchaser requires it, and (ii) with respect to any Sublease Agreement with respect to any other Shared Facilities, the term of the Sublease Agreement may be longer than eighteen (18) months following the Closing Date if mutually agreed by Seller and Purchaser. If the Sublease Agreement with respect to any Shared Facility is not executed and delivered at or prior to the Closing, each party shall enforce continue to use its reasonable best efforts after the obligations Closing to negotiate, execute (or cause their applicable Affiliates to execute) and deliver such Sublease Agreement as soon as commercially practicable after the Closing, and during any such time after the Closing and before the execution and delivery of such Sublease Agreement, Seller shall provide Purchaser with the benefits and use of the portion of the Shared Facility occupied by Business Employees as of the Closing pursuant to an arrangement reasonably acceptable to both Seller and Purchaser that is consistent with the usage of such portion of the Shared Facility by the Business and the rental costs charged by Seller to the Business as of the Closing. Seller will, at its reasonable expense, use commercially reasonable efforts to separate the portion of each Shared Facility governed or to be performed governed by a Sublease Agreement from the tenants; (iii) shall promptly furnish remainder of such Shared Facility, in each case to Lender any notice of default or termination received the extent practicable and permitted 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 Lenderapplicable Law.
(c) Within thirty During the Lease Determination Period, (30i) days Purchaser may elect, by delivery of written notice to Seller, with respect to any Retained Lease that does not govern a Shared Facility, to continue to use any space used by a Business Employee at the applicable real property as of the Closing Date, at a rental amount equal to the amount charged by Seller or its Affiliates to the Business as of the Closing for such property and consistent with the Business Financial Statements and with a term of no more than twelve (12) months following the Closing Date, and (ii) Seller may elect, by delivery of written notice to Purchaser, with respect to any Transferred Lease, to continue to use any space used by an employee of the JCI Retained Business at the applicable real property as of the Closing Date, at a rental amount equal to the amount charged by the Business to Seller and its Affiliates for such property and consistent with the Business Financial Statements and with a term of no more than twelve (12) months following the Closing Date (all such space described in clauses (i) and (ii), collectively, the “Shared Space”). Purchaser and Seller, as applicable, shall use good-faith efforts to relocate all Business Employees or all employees of the JCI Retained Business, as applicable, from all Shared Space used by such Business Employees or employees, as applicable, as promptly as practicable after the Closing Date. Each of Purchaser or Seller shall be responsible for any out-of-pocket costs and expenses incurred by it in relocating its own individuals from any Shared Space, Borrower and neither Purchaser nor Seller shall deliver be obligated to Lender pay any rent or other costs with respect to Shared Space from which it has relocated all Business Employees or employees of the original JCI Retained Business, as applicable. If a Retained Lease or Transferred Lease governing Shared Space expires prior to twelve (12) months following the Closing Date, and the Business Employees or employees of each Tenant Letter of Creditthe JCI Retained Business occupying such Shared Space have not been relocated prior to such expiration, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall then Purchaser and Seller will use commercially reasonable good-faith efforts to obtain from relocate such employees into the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default existsnew facility or facilities occupied by Seller or Purchaser or their respective Affiliates, Lender shall (a) at Borrower’s requestas applicable, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon until the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds end of such a draw shall be deposited in twelve-(12)-month period following the Clearing AccountClosing Date.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Cbre Group, Inc.)
Leases. (a) All Leases and other rental arrangements all renewals of Leases executed after the date hereof shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for economic terms, including rental rates and landlord concessions rates, comparable to existing local market ratesrates for similar properties, shall (ii) be an arms length transaction and in no event be with an Affiliate of Borroweron commercially reasonable terms, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (Fiii) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for have a term of not less than three (3) years (unless Lender approves in writing a shorter term) and not more than ten (10) years, exclusive including extensions and renewals (unless Lender approves in writing a longer term), (iv) provide that such Lease is subordinate to the Mortgage and the Assignment of renewal options Leases and that the Tenant thereunder will attorn to Lender and any purchaser at a foreclosure sale, (v) be to Tenants that are creditworthy, (vi) 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), (vii) not be to an Affiliate of Borrower, any Guarantor or rightsManager, (viii) 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. Further, all Major Leases and all renewals, amendments and modifications thereof and waivers thereunder executed after the date hereof shall be subject to Lender’s prior approval, which together with the initial term approval shall not exceed fifteen (15) years)not, so long as no Event of Default is continuing and so long as no Sweep Event has occurred, be unreasonably withheld or delayed. Lender shall execute and deliver a Subordination Nonits standard form of subordination, non-Disturbance disturbance and Attornment Agreement in the form annexed hereto as Schedule IV attornment agreement to Tenants under any future commercial Major Leases Lease approved by Lender promptly upon request request, with such commercially reasonable changes as may be requested by such Tenants, from time to time, and which are reasonably acceptable to Lender. Borrower shall pay Lender’s costs and expenses in connection with any such subordination, non-disturbance and attornment agreement, including, without limitation, reasonable legal fees and expenses.
(b) Borrower (i) shall observe and perform the obligations which Borrower is required to perform imposed upon the lessor under the LeasesLeases in a commercially reasonable manner; (ii) shall enforce the obligations terms, covenants and conditions contained in the Leases upon the part of the Tenants thereunder to be observed or performed by the tenantsin 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 Rents more than one (1) month in advance (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 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 Tenant or increase the obligations of the lessor; and (vi) shall promptly furnish to Lender any notice of default or termination received by Borrower from any tenantTenant, and any notice of default or termination given by Borrower to any tenant; (iv) Tenant. Upon request, Borrower shall not collect any rents for more than thirty (30) days in advance promptly furnish Lender with executed copies of the time when the same shall become due, except for bona fide all Leases and a statement of all Tenant 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 Lenderother deposits.
(c) Within thirty All security deposits of Tenants, 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 a separately designated account under Borrower’s control at the Clearing Bank. After the occurrence of a Sweep Event, Borrower shall, upon Lender’s request, if permitted by applicable Legal Requirements, cause all such security deposits (30and any interest theretofore earned thereon) days after to be transferred into the Closing DateCash 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 full amount of such deposits unless replaced by cash deposits as hereinabove described, (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 any applicable Legal Requirements and otherwise be satisfactory to Lender. Borrower shall, upon request, provide Lender with evidence satisfactory to Lender of Borrower’s compliance with the foregoing.
(d) Borrower shall not permit or consent to any assignment or sublease of any Major Lease without Lender’s prior approval (other than any assignment or sublease expressly permitted under a Major Lease pursuant to a unilateral right of Tenant thereunder not requiring the consent of Borrower).
(e) Notwithstanding anything to the contrary contained in this Section 4.1.10:
(i) whenever Lender’s approval or consent is required pursuant to the provisions of this Section 4.1.10, Borrower shall deliver 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 original proposed transaction, including identity of each Tenant Letter of Credittenant, together with a blank assignment for each Tenant Letter of Credit as square footage, term, rent, rent credits, abatements, work allowances and tenant improvements to be constructed by Borrower. Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable good faith efforts to obtain 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, and Borrower sends a second request containing a legend clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “REQUEST DEEMED APPROVED IF NO RESPONSE WITHIN 10 BUSINESS DAYS”, 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 ten (10) Business Day period;
(ii) whenever Lender’s approval or consent is required pursuant to the provisions of this Section 4.1.10 for any matter with respect to which Lender has not previously approved a term sheet pursuant to Section 4.1.10(e)(i) above, Lender shall 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 clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “REQUEST DEEMED APPROVED IF NO RESPONSE WITHIN 10 BUSINESS DAYS”, Lender shall be deemed to have approved or consented to such matter 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 4.1.10 for any matter that Lender has previously approved a term sheet pursuant to Section 4.1.10(e)(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 clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “REQUEST DEEMED APPROVED IF NO RESPONSE WITHIN BUSINESS 10 DAYS”, Lender shall be deemed to have approved or consented to such matter if Lender fails to respond to such second written request before the expiration of such ten (10) Business Day period, provided that there have been no material deviations from the Issuing Bank term sheet and that the aggregate economics of the transaction are no less favorable to Borrower than as set forth in the term sheet; and
(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 an assignment such Lease on the basis of each Tenant Letter any provisions of Credit such Lease dealing with the items contained in the approved term sheet.
(f) Notwithstanding anything to Lender. Provided the contrary contained in this Section 4.1.10, provided no Event of Default existsshall have occurred and remain uncured and not Sweep Event shall have occurred, Borrower shall have the right, without the consent or approval of Lender shall (a) at Borrower’s requestin any instance, promptly return each to terminate or accept a surrender of any Lease that is not a Major Lease, except that no termination by Borrower or acceptance of surrender by a Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw Leases shall be deposited permitted unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Clearing AccountProperty.
Appears in 1 contract
Leases. (aA) All Leases entered into by Borrowers shall provide for rental rates comparable to then-existing local market rates and terms and conditions commercially reasonable and consistent with then-prevailing local market terms and conditions for similar type properties, and in no event shall Borrowers, absent Lender's prior written consent, (i) enter into any Leases other rental arrangements than (1) residential student housing leases with individual student housing residents (or their family members), (2) leases with companies or other Persons which would use the Units for non-student residential purposes, provided the same are permissible under the applicable zoning classification for such Individual Property and (3) any master lease or multiple Unit leases or groups of single Unit leases to the applicable university or other reputable entity which sublets or licenses Units to individual resident users or individual resident user groups), or (ii) enter into any Leases with Affiliates of Borrowers.
(B) All Leases entered into after the Closing Date with new tenants (i.e. not renewals of existing tenants as of the Closing Date) shall be written on Borrowers; standard lease form currently in all respects be use which has been approved by Lender or such other form of Lease reasonably approved in writing by Lender; provided that notwithstanding the foregoing, the Borrowers may modify any standard lease form without such approval to the extent necessary to conform such form to any applicable Legal Requirements. Borrowers shall not materially change the standard lease form without Lender's prior written consent, which consent shall not be unreasonably withheld or delayed, or except as necessary to comply with applicable Legal Requirements.
(C) Borrowers shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the lessee thereunder to be observed or performed and shall be on effect a standard Lease form previously approved by termination or diminution of the obligations of tenants under leases, only in a manner that a prudent owner of a similar property to the Properties would enforce such terms covenants and conditions or effect such termination or diminution in the ordinary course of business.
(D) Borrowers shall not collect any of the Rents more than twelve (12) months in advance, and the total amount of Prepaid Rents under the Leases at any Property shall not in any event exceed 10% of the annual Rents for the Properties.
(E) Borrowers shall make all Leases available to Lender or, at Lender's request upon the occurrence and during the continuance of an Event of Default, shall furnish Lender with no material modifications executed copies of all Leases hereafter made (except as approved by to the extent not theretofore provided to Lender). Such Each Lease form shall specifically provide that (i) the such Lease is subordinate to the Mortgage; and that in no event shall Lender, (ii) as holder of the Mortgage or as successor landlord, be liable to the tenant for any act or omission of any prior landlord or for any liability or obligation of any prior landlord occurring prior to the date that Lender or any subsequent owner acquire title to such Individual Property. Each Lease entered into after the date hereof, shall specifically provide that the tenant attorns to Lender, such attornment to be effective upon Lender's acquisition of title to such Individual Property; that the tenant agrees to execute such further evidences of attornment as Lender may from time to time reasonably request; and that the attornment of the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved terminated by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 Lenderforeclosure.
(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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.
Appears in 1 contract
Sources: Loan and Security Agreement (Education Realty Trust, Inc.)
Leases. (a) Borrower shall furnish Lender with executed copies of all Leases. All new Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that renewals or amendments of Leases must (i) the Lease be entered into on an arms-length basis with Tenants that are not Affiliates of Borrower and whose identity and creditworthiness is subordinate to the Mortgageappropriate 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 tenant shall 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 Mortgage and contain provisions for the agreement by the Tenant thereunder to attorn to Lender and any purchaser at a foreclosure sale subject to Lender, provided Lender has agreed ’s agreement not to disturb tenantsuch Tenant’s occupancy use of the applicable demised premises absent an event of default by such Tenant under its leaseapplicable Lease, 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 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 entered into after the Closing Date that expressly requires the delivery of a subordination, attornment and non-disturbance agreement.
(b) Any 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 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 otherwise in accordance with the applicable terms and conditions hereof (the “Initial Notice”), 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 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 Approval 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”; and
(v) Lender shall have failed to approve or disapprove the request set forth in the Second Notice within the aforesaid time-frame.
(c) Borrower shall (i) observe and punctually perform all the material obligations imposed upon the lessor under the Leases, including satisfaction of all Unfunded Obligations; (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 terminate any cancellation, surrender, Lease following a material default thereunder by the respective Tenant; (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 amendment associated rents other than the assignment of such Lease rents and leases under the Mortgage; (v) not cancel or terminate any guarantee of any of the Major Leases without the prior written consent of Lender, 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) Security deposits of Tenants under all Leases shall be voidable held in compliance with Legal Requirements and any provisions in Leases relating thereto. Borrower shall maintain books and records of sufficient detail to identify all security deposits of Tenants separate and apart from any other payments received from Tenants. Subject to Legal Requirements, 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. Within ten (10) days after Borrower hereby pledges to Lender each such bond or other instrument as security for the Indebtedness. Upon the occurrence of an Event of Default, Borrower shall, upon Lender’s request, Borrower shall furnish deposit with Lender in an Eligible Account pledged 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 the aggregate security deposit of the Property; Tenants (vi) shall not further assign or encumber and any Lease; (vii) shall not, except with Lender’s prior written consent, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications interest theretofore earned on such security deposits and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Leaseactually received by Borrower), and (ix) any Lease termination such bonds, that Borrower had not returned to the applicable Tenants 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same applied in accordance with the terms of the applicable lease or Lease (band failure to do so shall constitute a misappropriation of funds pursuant to Section 9.19(b)).
(e) at Borrower’s request, retain possession Borrower shall promptly deliver to Lender a copy of each 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 Closing Date to which Borrower is a party that any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender delivering any such notice shall take all steps reasonably necessary to assist Borrower in connection with send a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds copy of such a draw shall be deposited in the Clearing Accountnotice directly to Lender.
Appears in 1 contract
Sources: Loan Agreement (New York REIT, Inc.)
Leases. (a) All Leases and other rental arrangements all renewals of Leases executed after the date hereof shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the contain market rate terms and conditions, (ii) provide that such Lease is subordinate to the Mortgage and that, upon the foreclosure of the Mortgage, (ii) sale by power of sale thereunder or deed-in-lieu of foreclosure, the tenant shall Tenants, at Agent’s discretion, will attorn to Lenderthe transferee of the Property, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is prepared on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines lease attached hereto as Schedule IV; (F) XIII with such modifications as are consistent with the Lease shall be to a tenant which Borrower, market and that result from arms-length negotiations that Borrower conducts in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; good faith and (Hiv) not include any option in favor of Tenant to acquire all or any portion of the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 LenderProperty.
(b) Borrower (i) shall perform may or may cause Operating Company to enter into new Leases which are not Major Leases without Agent’s consent provided that no Event of Default then exists, the obligations which Borrower is required to perform under Lease complies with 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 tenantrequirements set forth in subsection Error! Reference source not found. above, and any notice the Tenant thereunder is not an Affiliate of default Borrower or termination given by Operating Company. In addition, 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 may enter into renewals, amendments, extensions, restatements, expansions and modifications of Leases which are not Major Leases without the consent of Agent provided that no Event of Default then exists, any ground Lease such renewal, amendment, extension, restatement, expansion or master Lease modification complies with the requirements set forth in subsection (a) above, and the Tenant thereunder is not an Affiliate of any part of the Property; (vi) shall not further assign Borrower or encumber any Lease; (vii) shall not, except with Lender’s prior written consent, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend Operating Company. Borrower may terminate any Lease (except for minor modifications and amendments entered into in which is not a Major Lease without the ordinary course consent of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 LenderAgent.
(c) Within thirty All Major Leases and all renewals, amendments, extensions, restatements, expansions, modifications and terminations thereof (30a “Major Lease Modification”) days executed after the Closing Datedate hereof shall, prior to execution, be subject to Agent’s approval which shall not be unreasonably withheld, delayed or conditioned. Borrower shall not permit or consent to the assignment of any Major Lease without Agent’s prior consent, which shall not be unreasonably withheld, delayed or conditioned, unless and except to the extent the right to assign without Borrower’s consent is already reserved to the tenant thereunder in any Major Lease in existence on the date of this Agreement or is included in any Major Lease hereafter entered into in compliance with the terms of this Section 4.1.10(c). Each request for approval and consent of a Major Lease or Major Lease Modification shall contain a legend in capitalized bold letters on the top of the cover page stating: “THIS IS A REQUEST FOR CONSENT TO A [MAJOR LEASE] [MAJOR LEASE MODIFICATION]. AGENT’S RESPONSE IS REQUESTED WITHIN FIVE (5) BUSINESS DAYS. AGENT’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD SHALL RESULT IN AGENT’S CONSENT BEING DEEMED TO HAVE BEEN GRANTED.” Each such request shall include the following documentation with such request: (i) the Major Lease or Major Lease Modification, as applicable, and (ii) all other materials reasonably necessary in order for Agent to evaluate such Major Lease or Major Lease Modification. In the event that Agent fails to grant or withhold its approval and consent to such Major Lease or Major Lease Modification within such five (5) Business Day period (and, in the case of a withholding of consent, stating the grounds therefor in reasonable detail), then Agent’s approval and consent shall be deemed to have been granted. In addition, Borrower may, at Borrower’s option, prior to delivering to Agent any such Major Lease or Major Lease Modification for Agent’s approval, first deliver to Agent for Agent’s approval a tenant application and budget setting forth the major economic and other business terms (the “TAB”) of such proposed Major Lease or Major Lease Modification, provided, however, that a TAB shall only be deemed delivered from the date additional information reasonably required for evaluation of the TAB is delivered to Agent; provided, further, that a TAB shall be deemed delivered as of the date received if Agent does not request additional information with respect thereto within three (3) Business Days following its initial receipt thereof. Each such request for approval and consent of a TAB for a Major Lease or Major Lease Modification shall contain a legend in capitalized bold letters on the top of the cover page stating: “THIS IS A REQUEST FOR CONSENT TO THE TAB FOR A [MAJOR LEASE] [MAJOR LEASE MODIFICATION]. AGENT’S RESPONSE IS REQUESTED WITHIN FIVE (5) BUSINESS DAYS. AGENT’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD SHALL RESULT IN AGENT’S CONSENT BEING DEEMED TO HAVE BEEN GRANTED.” In the event that Agent fails to grant or withhold its approval and consent to such TAB within such five (5) Business Day period (and, in the case of a withholding of consent, stating the grounds therefor in reasonable detail), then Agent’s approval and consent shall be deemed to have been granted. Subject to the approval time periods set forth above with respect to Major Leases and Major Lease Modifications, so long as any Major Lease or Major Lease Modification does not contain material business terms which differ more than five percent (5%) on a net effective basis from the material business terms set forth in the TAB approved or deemed approved by Agent and otherwise does not contain any lease terms which deviate materially from the terms of the standard form of Lease used for the Property and approved by Agent, Agent’s consent to such Major Lease or Major Lease Modification shall not be required but shall be deemed given for purposes of Sections 4.1.11 and 6.3.2 hereof. All Major Lease, Major Lease Modifications and TABs being sent to Agent for approval in accordance with this Section 4.1.10(c) shall be sent in accordance with the notice provisions set forth in Section 10.6 and shall, in addition, be sent to ▇▇. ▇▇▇▇▇▇▇ ▇. Isaacman at the following address: HSBC Bank USA, National Association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
(d) Notwithstanding the foregoing, Borrower shall deliver have the right to Lender the original terminate any Major Lease and no consent of each Tenant Letter Agent shall be required in respect of Creditsuch termination, together provided that (i) Borrower simultaneously replaces such terminated Lease with a blank assignment Lease or Leases (for each all or substantially all of the space which was covered by the Lease being terminated) that either (A) has been approved or deemed approved by Agent if required in accordance with Section 4.1.10(b) or (B) otherwise meets the requirements of this Section 4.1.10, or (ii) the applicable Tenant Letter of Credit as Lender may reasonably require. While is in default thereunder beyond any Event of Default exists, applicable notice and grace periods.
(e) Borrower shall use and shall cause Operating Company to (i) promptly perform and observe all of the material terms, covenants and conditions required to be performed and observed by Borrower or Operating Company under the Leases, and (ii) not collect any of the Rents more than one (1) month in advance (except that Borrower may collect (A) such security deposits and last month’s Rents as are permitted by Legal Requirements and are commercially reasonable efforts to obtain from in the Issuing Bank its consent to an assignment prevailing market, (B) pre-paid estimates of each Tenant Letter recoveries of Credit to Lender. Provided no Event of Default existsoperating expenses and taxes, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same and other charges in accordance with the terms of the applicable lease or each Lease).
(bf) at Borrower’s Upon request, retain possession Borrower shall furnish Agent with executed copies of each or any Tenant Letter of Creditall Leases, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Accountcertified as true and complete by Borrower.
Appears in 1 contract
Sources: Loan Agreement (Empire State Building Associates L.L.C.)
Leases. (a) Promptly upon Lender’s written request, Borrower shall furnish Lender with executed copies of all Leases. All new Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that renewals or amendments of Leases must (i) the Lease be entered into on an arms-length basis with Tenants that are not affiliates of Borrower and whose identity and creditworthiness is subordinate to the Mortgageappropriate for tenancy in property of comparable quality, (ii) 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 tenant shall attorn to Lenderapplicable market, provided Lender has agreed and otherwise contain terms and conditions that are commercially reasonable, (iii) not to disturb tenant’s occupancy of its leasehave a Material Adverse Effect, and (iiiiv) that except for Specialty Leases, be expressly subject and subordinate to the Mortgage and contain provisions for the agreement by the Tenant thereunder to attorn to Lender and any cancellation, surrenderpurchaser at a foreclosure sale (such attornment to be self-executing and effective upon acquisition of title to the Property by any purchaser at a foreclosure sale), or amendment require the Tenant to execute a mutually acceptable subordination and nondisturbance agreement.
(b) All new Leases that are Major, and all terminations, renewals and amendments of such Lease without Major Leases, and any surrender of rights under any Major Lease, shall be subject to the prior written consent of Lender. If Lender shall be voidable fail to respond to Borrower’s request for such consent within five Business Days of Lender’s receipt of such request accompanied by Lendera comprehensive term sheet and reasonably detailed financial information about the proposed Tenant (to the extent available from such Tenant), Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that “LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN FIVE BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL”, provided that if Lender has reasonably requested any additional information with respect to the Tenant (and such information is possessed by or available to Borrower), Borrower shall not have the right to send any such second request unless and until Borrower shall have delivered to Lender such additional information. Within ten (10) days In the event Lender fails to approve or disapprove such request within five Business Days after Lender’s receipt of such second 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there such request shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 Lenderdeemed approved.
(bc) Borrower shall (i) shall observe and punctually perform all the material obligations which Borrower is required to perform imposed upon the lessor under the Leases; (ii) shall enforce all of the obligations material terms, covenants and conditions contained in the Leases on the part of the lessee thereunder to be performed observed or performed, short of termination thereof, except that Borrower may terminate any Lease following a material default thereunder by the tenantsrespective Tenant; (iii) shall promptly furnish to Lender not collect any notice of default or termination received by Borrower from any tenant, and any notice of default or termination given by Borrower to any tenantthe rents thereunder more than one month in advance; (iv) shall not collect execute any assignment of lessor’s interest in the Leases or associated rents for more other than thirty (30) days in advance the assignment of rents and leases under the time when the same shall become due, except for bona fide security deposits not in excess of an amount equal to two months rentMortgage; (v) shall not enter into cancel or terminate any ground Lease or master Lease guarantee of any part of the PropertyMajor Leases without the prior written consent of Lender; and (vi) shall not further assign or encumber permit any Lease; (vii) shall not, except with Lender’s prior written consent, cancel or accept surrender or termination subletting of any Lease; (viii) shall not, except with Lender’s prior written consent, modify space covered by a Major Lease or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default existsthe Tenant’s rights under a Major Lease, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower except in order to allow Borrower to apply or realize upon the same in strict accordance with the terms of such Major Lease. Borrower shall deliver to each new Tenant a Tenant Notice upon execution of such Tenant’s Lease and, promptly upon request of Lender, deliver to Lender a copy thereof and evidence of such Tenant’s receipt thereof.
(d) Security deposits of Tenants under all Leases, whether held in cash or any other form, shall be held in accordance with Legal Requirements. Borrower shall maintain books and records of sufficient detail to identify all security deposits of Tenants separate and apart from any other payments received from Tenants. 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 pledged to Lender as security for the Indebtedness and shall, in all respects, comply with any applicable lease or (b) at BorrowerLegal Requirements and otherwise be reasonably satisfactory to Lender. Borrower shall, upon Lender’s request, retain possession provide Lender with evidence reasonably satisfactory to Lender of each 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 any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same applied in accordance with the terms of the applicable Lease. Any proceeds .
(e) Borrower shall promptly deliver to Lender a copy of such each written notice from a draw shall be deposited Tenant under any Major Lease claiming that Borrower is in default in the Clearing Accountperformance or observance of any of the material terms, covenants or conditions thereof to be performed or observed by Borrower.
Appears in 1 contract
Leases. (a) All Leases and other rental arrangements Borrower shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) observe and perform in all material respects all of the Lease is subordinate to material obligations imposed upon the Mortgage, lessor under the Leases; (ii) the tenant promptly send copies to Lender of all written notices of material default that Borrower shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and send or receive under any Major Lease; (iii) that promptly notify Lender of any cancellation, surrendertenant under a Major Lease at the Property which has vacated (after Borrower obtaining actual notice of same), or has given Borrower written notice of its intention to vacate, the premises (or any material portion thereof) leased to such tenant pursuant to the applicable Major Lease; (iv) enforce in all material respects the terms, covenants and conditions in the Leases to be observed by tenants in accordance with commercially reasonable practices for properties similar to the Property; and (v) obtain the prior written approval of Lender, which approval shall not be unreasonably withheld, conditioned or delayed, for any Major Lease (or associated guaranty or other agreement supplemental thereto), amendment or modification thereto (or to any associated guaranty or other agreement supplemental thereto), assignment thereof, or subletting thereunder (unless Borrower’s approval for such amendment, modification, assignment or subletting is not required pursuant to the express terms of such Major Lease), and for any termination of any Major Lease (unless Borrower’s approval for such termination is not required pursuant to the express terms of such Major Lease). Notwithstanding anything to the contrary, Lender has approved the Leases that are identified in the Rent Roll delivered to Lender as of the Closing Date, as well as the terms and conditions thereof.
(b) Borrower may enter into any New Tenant Lease, other than a Major Lease, after the Closing Date, without the prior written consent of Lender shall be voidable provided that such Lease is at then current market terms for properties similar to the Property in the geographical region where the Property is located, as reasonably determined by LenderBorrower and Borrower reasonably approves the creditworthiness of the tenant and applicable guarantor (if any) thereunder. Within ten (10) days after Lender’s requestFor the avoidance of doubt, Borrower shall furnish not be obligated to obtain Lender a statement of all tenant security deposits, consent and copies of all Leases not previously delivered to Lender, certified by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future deemed to violate the foregoing sentence with respect to any renewal, extension, amendment or modification of any Lease which may be exercised by the applicable Tenant thereunder in accordance with the terms and conditions of such Lease without the prior consent of Borrower. All proposed New Tenant Leases that do not satisfy the requirements set forth in this Section 6.7 will require Lender’s prior written approval (not to be unreasonably withheld, conditioned, or Lease extensions or modifications if the following conditions are satisfied: (A) there exists delayed, so long as no Default or Event of Default; (B) Default exists). In addition to the Lease is on foregoing, without the standard Lease form approved by Lender with no material approval of Lender, Borrower may enter into amendments, modifications, except for commercially reasonable changes agreed to renewals and extensions of, and permit assignments and subleases by tenants under, Leases that are not Major Leases in the ordinary course of Borrower’s businessbusiness of operating the Property in a reasonable and prudent manner. Further, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s the prior written consent; (C) the Lease does consent of Lender, Borrower may enter into terminations of Leases that are not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of businessbusiness of operating the Property in a reasonable and prudent manner, consistent with prudent property management practicesso long as the tenant thereunder is in default (after expiration of any applicable grace or cure period) and the termination of such Leases will not have a Material Adverse Effect. For any New Tenant Lease which is a Major Lease, not affecting the economic terms of the Lease)Borrower shall use commercially reasonable efforts to provide to Lender an executed original subordination, nondisturbance and attornment agreement from such tenant in Lender’s standard form or another form reasonably acceptable to Lender, and (ix) any Lease termination or cancellation fees shall receipt by Lender of such subordination, nondisturbance and attornment agreement may be paid required by Lender as a condition to Lender granting its approval of such Major Lease. Upon written request by Lender, to the extent not already delivered to Lender, Borrower shall promptly (and held in any event no later than the Rollover Fund. Any action in violation next quarterly deliverable pursuant to Section 6.5(e)) deliver to Lender copies of clauses each Lease and modification, amendment or termination of any Leases entered into after the Closing Date, together with written certification from Borrower confirming that (v)i) the copy delivered is a true, (vi), (vii), complete and correct copy of such Lease and (viiiii) Borrower has satisfied all conditions of this Section 4.1.9(b) shall be void at the election of Lender6.7.
(c) Within thirty (30) days after Without first having obtained the Closing Datewritten consent of Lender, Borrower will make no assignment, pledge or disposition of any Leases or any Rents (except to Lender); nor will Borrower grant any Lien in any Leases or any Rents (except to Lender); nor will Borrower incur any indebtedness to a Tenant under or guarantor of any Lease which may under any circumstance be used as an offset against the Rents or other payments due under said Lease, except for any tenant improvement allowances, tenant inducement payments or other similar amounts payable to the Tenant under any applicable Lease; nor will Borrower subordinate any of the Leases to any deed of trust, security deed or mortgage or any other encumbrance of any kind (other than the Ground Lease) or permit, consent or agree to such subordination; nor will Borrower receive or collect any Rents for a period of more than one (1) month in advance of the date on which such payment is due (except prepayments of not more than one (1) month’s Rent by Tenants made in connection with execution of Leases approved or deemed approved under this Section 6.7); and any such acts, if done without the prior written consent of Lender, shall deliver be null and void.
(d) In the event (i) (x) any tenant under any Lease files a petition for relief, or (y) an involuntary petition for relief is filed in any Bankruptcy Action against any tenant under any Lease, or (z) an order for relief naming a tenant under any Lease is entered under any Creditors’ Rights Laws, or (ii) any composition, rearrangement, extension, reorganization or other relief of debtors now or hereafter existing is requested or consented to by any tenant under any Lease (each a “Tenant Bankruptcy Event” and the tenant which is the subject thereof being the “Tenant in Bankruptcy”), Borrower agrees that if any Lease of a Tenant in Bankruptcy is rejected in connection with any such proceeding, no settlement for damages shall be made without the prior written consent of Lender. Any check or other form of payment in payment of damages for rejection of any such Lease will be made payable to both Borrower and Lender. Borrower hereby assigns any such payment to Lender and further covenants and agrees that upon the original request of each Tenant Letter Lender, it will duly endorse to the order of CreditLender any such check or other form of payment, together with a blank assignment for each Tenant Letter the proceeds of Credit which will be applied to the Debt in such order as Lender in its sole discretion may reasonably requiredetermine. While any During the pendency of a Tenant Bankruptcy Event and notwithstanding the fact that an Event of Default existsmay not exist at the time, all Rents (excluding any Rents received under the Lease of the Tenant in Bankruptcy after the assumption, if any, of the Lease of the Tenant in Bankruptcy in such proceeding, which Rents is subject to the other provisions of this Agreement) received by Borrower in connection with the Lease of the Tenant in Bankruptcy not otherwise applied to the payment of the Debt then due or the expenses of managing, operating and maintaining the Property shall be remitted to Lender for application to the outstanding Debt.
(e) If there is any payment to Borrower in consideration for the termination of a Lease, Borrower hereby assigns such payment to Lender and further covenants and agrees that, upon the request of Lender, it will pay the amount so received to Lender, which amount will be applied to the Debt in such order as Lender in its sole discretion may determine.
(f) Promptly after written request from Lender from time to time, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent tenant under any Lease covering any portion of the Property estoppel certificates stating that (1) the Lease is unmodified and in full force and effect and (2) that no default exists thereunder on the part of such tenant or Borrower.
(g) Any request for approval of a Lease, or assignment, termination, amendment or modification of any Lease requiring approval as set forth in this Section 6.7 (a “Lease Approval Request”) shall be made to an assignment of each Tenant Letter of Credit Lender in writing and together with such request Borrower shall furnish to Lender. Provided no Event : (i) such biographical and financial information about the proposed Tenant and any guarantor of Default exists, Lender shall (a) at such proposed Lease in Borrower’s requestpossession as Lender may reasonably require (Borrower hereby agreeing to use commercially reasonable efforts to obtain same), promptly return each (ii) a copy of the proposed form of Lease (or any Tenant Letter amendment or modification), and (iii) a summary of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the material terms of such proposed Lease (or amendment or modification) including, without limitation, rental terms and the applicable lease or term of the proposed Lease. Borrower shall pay all of Lender’s actual and reasonable out-of-pocket costs and expenses (bincluding reasonable legal fees and expenses) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower incurred in connection with a draw upon the same in accordance with the terms any request for approval of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Accountany Lease requiring Lender’s approval under this Section 6.7.
Appears in 1 contract
Leases. (aA) All To the best of LVWD's knowledge, the Rent Rolls that LVWD delivers to Acquiror shall accurately state, with respect to each Existing Lease, the name of the Tenant, the lease term (including all renewal options), the leased premises (including all expansion and surrender options). The Rent Rolls shall accurately state all Rent payable by each Tenant, any Tenant Deposit, any prepaid rent, tenant improvement allowances, any commission payable (including commissions payable upon renewals) and any Lease Guaranties.
(B) LVWD shall provide Acquiror with true, complete and correct copies of all Leases and other rental arrangements shall in Lease Guaranties relating to the Reno Property, including all respects be approved by Lender amendments and shall be on a standard Lease form previously approved by Lender with no material modifications thereto.
(C) To the best of LVWD's knowledge, except as approved by Lender). Such Lease form shall provide that specified in the Rent Roll, (i) each Lease and Lease Guaranty is in full force and effect and is binding and enforceable against each of the Lease is subordinate to the Mortgageparties thereto, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy no party is in material default of any of its leaseagreements or obligations under, and has not made any claim against another party under, a Lease or Lease Guaranty, (iii) that any cancellation, surrender, LVWD has not given or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 received any notice of default or termination received by Borrower from claim under any tenantLease or Guaranty, and any notice of default or termination given by Borrower to any tenant; (iv) each Tenant is in actual possession of its demised premises in the normal course under its Lease, (v) all tenant improvements, capital improvements, repairs, remodeling, furnishing and other work required by each Lease have been fully completed and accepted by the relevant Tenant, and (vi) there is no litigation, arbitration or similar proceeding pending or threatened with respect to any Lease or Lease Guaranty.
(D) No Tenant is entitled to any concession, allowance, rebate or refund with respect to any Rent payable or paid under any Lease, except as shown on the Rent Roll or in the Deliverables. No Tenant has prepaid, and if a Tenant hereafter tenders prepayment, LVWD shall not collect accept, any rents Rent payable under its Lease for more than thirty (30) days one month 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 Lenderadvance.
(cE) Within thirty None of the Leases or Lease Guaranties and none of the Rents payable under the Leases are subject to any assignment, pledge or other encumbrance that will not be satisfied by LVWD at Closing.
(30F) days after the Closing Date, Borrower shall deliver No brokerage or leasing commissions or other compensation is or will be due or payable to Lender the original any Person with respect to or on account of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each Lease or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply extension or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s requestrenewal thereof, retain possession of each or any Tenant Letter of Credit, provided, however, that except as specified in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing AccountRent Roll.
Appears in 1 contract
Leases. (a) Promptly upon Lender’s written request, Borrower shall furnish Lender with executed copies of all Leases. All new Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that renewals or amendments of Leases must (i) the Lease be entered into on an arms-length basis with Tenants that are not affiliates of Borrower and whose identity and creditworthiness is subordinate to the Mortgageappropriate 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 tenant shall attorn applicable market, and otherwise contain terms and conditions that are commercially reasonable, (iii) not have or reasonably likely to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its leaseresult in a Material Adverse Effect, and (iiiiv) except for Specialty Leases, be expressly subject and subordinate to the Security Instrument and contain provisions for the agreement by the Tenant thereunder to attorn to Lender and any purchaser at a foreclosure sale, such attornment to be self-executing and effective upon acquisition of title to the Property by any purchaser at a foreclosure sale or require the Tenant to execute a mutually acceptable subordination and nondisturbance agreement.
(b) All new Leases that are Major Leases, and all terminations, renewals and amendments of Major Leases, and any cancellationsurrender of rights under any Major Lease, surrender, or amendment of such Lease without shall be subject to the prior written consent of Lender. If Lender shall be voidable fail to respond to Borrower’s request for such consent within five (5) Business Days of Lender’s receipt of such request accompanied by Lendera comprehensive term sheet and reasonably detailed financial information about the proposed Tenant (to the extent available from such Tenant), Borrower may deliver to Lender a second request for consent stating in bold and capitalized type that "LENDER’S FAILURE TO RESPOND TO THE ENCLOSED REQUEST WITHIN FIVE BUSINESS DAYS SHALL BE DEEMED LENDER’S APPROVAL", provided that if Lender has reasonably requested any additional information with respect to the Tenant (and such information is possessed by or available to Borrower), Borrower shall not have the right to send any such second request unless and until Borrower shall have delivered to Lender such additional information. Within ten (10) days In the event Lender fails to approve or disapprove such request within five Business Days after Lender’s receipt of such second 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there such request shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 Lenderdeemed approved.
(bc) Borrower shall (i) shall observe and punctually perform all the material obligations which Borrower is required to perform imposed upon the lessor under the Leases; (ii) shall enforce all of the obligations material terms, covenants and conditions contained in the Leases on the part of the lessee thereunder to be performed observed or performed, short of termination thereof, except that Borrower may terminate any Lease following a material default thereunder by the tenantsrespective Tenant; (iii) shall promptly furnish to Lender not collect any notice of default or termination received by Borrower from any tenant, and any notice of default or termination given by Borrower to any tenantthe rents thereunder more than one month in advance; (iv) shall not collect execute any assignment of lessor's interest in the Leases or associated rents for more other than thirty (30) days in advance the assignment of rents and leases under the time when the same shall become due, except for bona fide security deposits not in excess of an amount equal to two months rentSecurity Instrument; (v) shall not enter into cancel or terminate any ground Lease or master Lease guarantee of any part of the PropertyMajor Leases without the prior written consent of Lender; and (vi) shall not further assign or encumber permit any Lease; (vii) shall not, except with Lender’s prior written consent, cancel or accept surrender or termination subletting of any Lease; (viii) shall not, except with Lender’s prior written consent, modify space covered by a Major Lease or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default existsthe Tenant's rights under a Major Lease, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower except in order to allow Borrower to apply or realize upon the same in strict accordance with the terms of such Major Lease. Borrower shall deliver to each new Tenant a Tenant Notice upon execution of such Tenant's Lease, and promptly upon request of Lender deliver to Lender a copy thereof and evidence of such Tenant's receipt thereof.
(d) Security deposits of Tenants under all Leases, whether held in cash or any other form, shall be held in accordance with Legal Requirements. Borrower shall maintain books and records of sufficient detail to identify all security deposits of Tenants separate and apart from any other payments received from Tenants. Any bond or other instrument that 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 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) that Borrower had not returned to the applicable lease Tenants or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same applied in accordance with the terms of the applicable Lease. Any proceeds .
(e) Borrower shall promptly deliver to Lender a copy of such each written notice from a draw shall be deposited Tenant under any Major Lease claiming that Borrower is in default in the Clearing Accountperformance or observance of any of the material terms, covenants or conditions thereof to be performed or observed by Borrower.
Appears in 1 contract
Leases. (a) All Leases and other rental arrangements Borrower shall perform all obligations required to be performed by it as landlord under the Leases. Borrower shall not accept payment of more than one month’s rent in all respects be 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 be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender)reflect arm’s-length transactions at the then current market rate for comparable space. Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. Within ten (10) days after Lender’s requestFurthermore, Borrower shall furnish not grant any Tenant any rights or options 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. Notwithstanding anything contained in purchase the Loan Documents, Lender’s approval shall not be required for future Leases Real Estate or Lease extensions any portion thereof or modifications if the following release any Tenant or lease guarantor from any obligation or conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) . 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 does not conflict with any restrictive covenant affecting to consent to the Property sublease or any other assignment. Lender shall respond to Borrower’s written request for approval of a new Major Lease for space in the Property; (D) the Lease is not and would not be, after any such extension 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; (E) , modification or amendment, or request for approval of termination or surrender or approval of sublease or assignment, as the Lease 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 provide reasonably require. If Lender shall fail to respond to any such written request by Borrower for rental rates and landlord concessions comparable to existing local market ratessuch approval within such 10 business day period, Lender shall be an arms length transaction and in no event be with an Affiliate 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 Borrowerexisting Leases, and shall be established pursuant promptly notify Lender of the termination or surrender of any Lease.
(b) Borrower shall promptly deliver to the Leasing Guidelines attached hereto Lender such rent rolls, leasing schedules and reports, operating statements or other leasing information as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases approved by Lender promptly upon may 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 notify Lender of any material dispute with a Tenant or material adverse change in leasing activity on the Real Estate. Borrower shall use reasonable efforts promptly to obtain and deliver to Lender such subordination, non-disturbance and attornment agreements and tenant estoppel certificates, as Lender may require. In no event shall any notice approval by Lender of default or termination received by Borrower from a Lease be a representation of any tenant, and any notice of default or termination given by Borrower kind with regard 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 its enforceability, or the financial capacity of any part of the Property; (vi) shall not further assign Tenant or encumber any Lease; (vii) shall not, except with Lender’s prior written consent, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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 Lenderlease guarantor.
(c) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain first apply all income derived from the Issuing Bank its consent Real Estate, including all income from the Leases, to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon pay the same in accordance costs and expenses associated with the terms ownership, maintenance, operation and leasing of the applicable lease Real Estate that are then due and payable, including all amounts then required to be paid under the Loan Documents, before using or (b) at Borrower’s request, retain possession of each or applying such income for any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Leaseother purpose. Any proceeds of No such a draw income shall be deposited distributed or paid to any partner, shareholder or member, or, if Borrower is a trust, to any beneficiary or trustor, unless all such costs and expenses which are then due and payable have been paid in the Clearing Account.full. QAD ▇▇▇▇▇▇ ▇▇▇▇, LLC Credit Agreement
Appears in 1 contract
Sources: Credit Agreement (Qad Inc)
Leases. (a) All new Leases and Lease renewals entered into after the date hereof shall, regardless of whether Lender’s approval is required, unless otherwise consented to by Lender in writing in advance, but subject to the provisions below in this Section 6.2,
(i) be arm’s-length transactions on commercially reasonable terms;
(ii) [Intentionally Omitted];
(iii) contain prevailing market rental rates and contain other rental arrangements terms and conditions consistent with customary and prudent leasing and management practices;
(iv) be fully subordinated to this Deed of Trust and provide for attornment to Lender, if it becomes a successor landlord; and
(v) not contain termination rights other than for landlord default, or major casualty or Taking. Lender’s written consent shall be required for each new Lease prior to its execution if the Lease is for space in excess of fifteen thousand (15,000) square feet or is for a term exceeding ten (10) years (excluding any extensions and renewal options that are at market rent); provided, however, that consent shall be required in all respects instances if an Event of Default shall exist. If Lender’s consent is required hereunder, Borrower shall submit to Lender a copy of the proposed Lease or a reasonably detailed description of the economic terms to be approved incorporated in the Lease including, without limitation, the minimum rental per square foot, additional rental items, any expense stop, rental escalators, rent credits, abatements and concessions, tenant finish allowances, security deposit amounts, term, renewal rights and options for additional space. Lender’s consent to the proposed Lease or economic terms shall not be unreasonably withheld, conditioned or delayed. Promptly upon the execution of each Lease or renewal, Borrower shall deliver a copy thereof, together with all related documentation, to Lender. Notwithstanding anything to the contrary in this Deed of Trust, the following provisions shall apply:
(1) Borrower may accept a surrender by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications Qwest of up to one-half (except 1/2) of Qwest’s tenant space as approved by Lender). Such Lease form shall provide that of the date hereof (such surrendered space, the “Qwest Surrender Space”) provided the following requirements are all satisfied: (i) the Qwest Surrender Space is leased to XM as part of XM’s existing Lease is subordinate (the “XM Lease”) or pursuant to the Mortgagea new Lease, (ii) the tenant shall attorn Qwest Surrender Space is leased to LenderXM at a rent equal to at least the lesser of (a) the then-market rent for such space and (b) the rent that would otherwise be due and payable under the Qwest Lease for the Qwest Surrender Space if the Qwest Surrender Space had not been surrendered, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) any separate Lease with XM covering the Qwest Surrender Space (a “XM Additional Lease”) contains the same subordination, non-disturbance and attornment terms as are contained in that any cancellationcertain Subordination, surrenderNon-Disturbance and Attornment Agreement executed by Lender and XM on or about the date hereof or a new subordination, non-disturbance and attornment agreement containing such terms is executed by XM with respect to the XM Additional Lease, (iv) the terms of the XM Lease, as modified to add the Qwest Surrender Space, or amendment of any XM Additional Lease, as applicable, are the same terms with respect to insurance, condemnation and casualty as are contained in the XM Lease prior to Qwest’s surrender of the Qwest Surrender Space, (v) all of the other terms of the XM Lease, as modified to add the Qwest Surrender Space, or of any XM Additional Lease, as applicable are not materially less favorable to Borrower than the terms of the XM Lease prior to adding of the Qwest Surrender Space and (vi) a fully-executed the modification of the XM Lease adding the Qwest Surrender Space or a fully-executed XM Additional Lease, whichever is applicable, is submitted to Lender at least twenty (20) Business Days prior to the effective date of the surrender by Qwest of the Qwest Surrender Space, together with a certification by an authorized officer of Borrower that all of the foregoing conditions are satisfied.
(2) In addition to the rights of Borrower under item (1) above, (i) the Qwest Surrender Space may be partially leased to XM in accordance with the provisions of item (1) above and partially leased to one or more other tenants or (ii) the Qwest Surrender Space, after being leased to XM, may be surrendered by XM to Borrower and re-leased to one or more other tenants, provided that, in either case, with respect to any Lease to other tenants of any portion of the Qwest Surrender Space, (a) the conditions of item (1) above are all satisfied (in the same manner as if the other tenant(s) are/were XM entering into an XM Additional Lease) and (b) Lender is reasonably satisfied with the creditworthiness of such Lease other tenant(s). With respect to any request for Lender’s consent under this Section 6.2, if Borrower submits a written request for consent with all information required under this Section 6.2 and with the following legend at the top of the first page of such request in ALL-CAP typeface of at least 12 point size: “THE FOLLOWING IS A REQUEST FOR LENDER’S CONSENT PURSUANT TO SECTION 6.2 OF THAT CERTAIN DEED OF TRUST BETWEEN XM 1500 ECKINGTON LLC AND ▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE LENDING, INC. DATED AUGUST , 2004 WITH RESPECT TO 1500 ECKINGTON IN WASHINGTON, D.C. FAILURE OF LENDER TO RESPOND TO THIS REQUEST FOR CONSENT WITHIN TEN (10) BUSINESS DAYS OF THE EFFECTIVE DATE OF THIS REQUEST SHALL, SUBJECT TO THE TERMS OF THE DEED OF TRUST, CAUSE SUCH CONSENT TO BE DEEMED GRANTED BY LENDER.” and if Lender fails to grant or deny its consent to the submitted request within five (5) Business Days of the date such request is deemed effective under the notice provisions of Section 15.1(b) below and if Borrower then sends to Lender an additional request for consent, which additional request for consent contains the following legend at the top of the first page of such request in ALL-CAP typeface of at least 12 point size: “THE FOLLOWING IS A SECOND REQUEST FOR LENDER’S CONSENT PURSUANT TO SECTION 6.2 OF THAT CERTAIN DEED OF TRUST BETWEEN XM 1500 ECKINGTON LLC AND ▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE LENDING, INC. DATED AUGUST , 2004 WITH RESPECT TO 1500 ECKINGTON IN WASHINGTON, D.C. FAILURE OF LENDER TO RESPOND TO THIS REQUEST FOR CONSENT WITHIN FIVE (5) BUSINESS DAYS OF THE EFFECTIVE DATE OF THIS REQUEST SHALL, SUBJECT TO THE TERMS OF THE DEED OF TRUST, CAUSE SUCH CONSENT TO BE DEEMED GRANTED BY LENDER.” and if Lender fails to grant or deny its consent to the second request within five (5) Business Days of the date such second notice is deemed effective pursuant to the notice provisions of Section 15.1(b) below, then such request shall be deemed to have been consented to by Lender (provided, however, such deemed consent shall only apply to the specific item described in the submitted request upon the exact terms set forth in the submitted request, and shall not apply to any modified terms or to other actions requiring Lender’s consent under this Section 6.2, this Deed of Trust or the other Loan Documents).
(b) Borrower shall observe and perform all the obligations imposed upon the lessor under the Leases and pursuant to applicable Legal Requirements. Borrower shall not, without the prior written consent of Lender shall be voidable Lender: (i) accept Rents (exclusive of security deposits) for more than one month in advance, (ii) [Intentionally Omitted]; (iii) amend or modify any Lease, except as permitted under this Section 6.2; (iv) enter into any Lease not in conformity with Section 6.2 (a); (v) take or omit to take any action or exercise any right or option which would permit the tenant under any Lease to cancel or terminate said Lease or accept the surrender or assignment of any Lease; (vi) take action to permit any Lease to become subordinate to any Lien other than the lien of this Deed of Trust; (vii) further pledge, transfer, mortgage or otherwise encumber or assign the Leases or future payments of Rents except if expressly permitted by Lenderthis Deed of Trust; (viii) cancel or terminate any Lease (other than for non-payment of rent or any other material default thereunder); or (ix) discount, release, waive, compromise or otherwise discharge any Rents payable or other obligations under the Leases. Within ten (10) days after Lender’s requestHowever, Borrower shall furnish to Lender a statement may take any of all tenant security deposits, the actions described in subsections (viii) and copies of all Leases not previously delivered to Lender, certified (ix) so long as such actions are taken by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination business and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property sound customary leasing and management practices, not affecting the economic terms of the Lease), practices for similar properties and (ix) any Lease termination or cancellation fees shall be paid prompt notice thereof is given 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) Within thirty (30) days During the existence of an Event of Default, whether before or after the Closing Datewhole principal sum secured hereby is declared to be immediately due or whether before or after the institution of any sale by Trustee of the Property or any portion thereof by Trustee pursuant to the power of sale provided herein, Lender shall have, and Borrower hereby gives and grants to Lender, the right, power and authority to make and enter into Leases with respect to the Property for such rents and for such periods of occupancy and upon such other terms and conditions as Lender determines in its sole discretion 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. Borrower expressly acknowledges and agrees that the term of each such Lease may extend beyond the Maturity Date of the Loan or any sale by Trustee of the Property. In furtherance of the rights granted Lender under Section 6.1 (d) hereof and this Section 6.2 (c), Borrower hereby irrevocably appoints Lender, Trustee and any receiver of the Property as the attorneys-in-fact of Borrower coupled with an interest. In connection with any action taken by Lender, Trustee or any receiver of the Property pursuant to this Article, Lender, Trustee or any receiver of the Property shall deliver not be liable for any loss sustained by Borrower resulting from any failure to Lender let the original Property, or from any other act or omission of each Tenant Letter Lender, Trustee or any receiver of Creditthe Property in managing the Property, together nor shall Lender, Trustee or any receiver of the Property be obligated to perform or discharge any obligation, duty or liability under any Lease.
(d) All security deposits of lessees, whether held in cash or any other form, shall be treated by Borrower as trust funds, shall not be commingled with any other funds of Borrower and, if cash, shall be deposited by Borrower at a blank assignment for each Tenant Letter of Credit as Lender may bank or other financial institution reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit satisfactory to Lender. Provided Any bond or other instrument which Borrower is permitted to hold in lieu of cash security deposits under applicable Legal Requirements shall be maintained in full force and effect unless replaced by cash deposits as hereinabove described and shall be issued by a financial institution reasonably satisfactory to Lender. The bond or other instrument shall, if permitted pursuant to Legal Requirements, at Lender’s option, name Lender as payee or beneficiary thereunder or be fully assignable to Lender and shall otherwise be reasonably satisfactory to Lender.
(e) If requested by Borrower in writing, provided no Event of Default existsexists and no default exists under the applicable Lease, at Borrower’s sole cost and expense (which shall include, without limitation, reasonable attorney’s fees and costs of Lender), Lender shall (a) at Borrowerexecute a subordination, non-disturbance and attornment agreement on Lender’s request, promptly return each form or on a form otherwise reasonably satisfactory to Lender in both form and substance for any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms tenant of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing AccountProperty.
Appears in 1 contract
Leases. (a) The Beneficiary shall have the right to approve any Lease executed after the date of this Deed of Trust as to form, content and financial strength of the tenant. All such Leases shall, at the Beneficiary's option, include subordination provisions acceptable to the Beneficiary in its sole and absolute discretion. The Beneficiary agrees that it will provide all tenants under Leases which have terms (including any renewal options) of twenty four (24) months or less and all tenants under Leases approved by the Beneficiary in its sole, but reasonable discretion, with the Beneficiary's customary subordination, attornment and non-disturbance agreement. At any time, within thirty (30) days after Notice from the Beneficiary, the Borrower will deliver to the Beneficiary a written description in such reasonable detail as the Beneficiary may request of all of the Leases, including, without limitation, the names of all tenants, the terms of all Leases and other rental arrangements shall in the Rents payable under all respects be approved by Lender and shall be Leases, and, on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) demand, the Lease is subordinate Borrower will furnish to the Mortgage, (ii) Beneficiary fully executed copies of any Leases and such subordination and attornment agreements as the Beneficiary may request. If any Lease provides for the giving by the tenant shall attorn of certificates with respect to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment the status of such Lease without Lease, the prior written consent of Lender Borrower shall be voidable by Lender. Within exercise its right to require such certificate 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. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) any Lease termination or cancellation fees shall be paid to Lender and held in the Rollover FundBeneficiary. 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) Within thirty (30) days after any request by the Closing DateBeneficiary, the Borrower shall deliver will notify all tenants under existing Leases, and agrees to Lender thereafter notify all tenants under future Leases, that (i) the original of each Tenant Letter of CreditBorrower collects and receives all Rents pursuant to the license granted to it hereunder, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain and (ii) upon Notice from the Issuing Bank its consent Beneficiary that such license has been revoked, the tenant (including, but not limited to an assignment of each Tenant Letter of Credit the Affiliate) shall pay all unpaid Rent directly to Lenderthe Beneficiary. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon After the same in accordance with the terms completion of the applicable lease or (b) at Borrower’s requestImprovements, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing Account.may assign its interest
Appears in 1 contract
Sources: Leasehold Deed of Trust, Assignment and Security Agreement (Bioreliance Corp)
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 rental arrangements 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 respects be approved by Lender material respects, and shall be (ii) such lease is on a the standard Lease lease form previously approved by Lender with no material adverse modifications (except as approved by Lender). Such Lease lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease lease without the prior written consent of Lender shall be voidable by Lender. 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. Notwithstanding anything to the contrary contained in the Loan Documents, Lender’s approval shall not be required for with respect to any proposed future Leases or Lease extensions or modifications amendments (each, a “Qualified Lease”) if the following conditions are satisfied: (A1) there exists no Default or Event of Default; (B2) the Lease lease is on the standard Lease lease form approved by Lender with no material adverse modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C3) the Lease lease does not conflict with any restrictive covenant affecting the Property or any other Lease lease for space in the Property; (D4) the Lease 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 and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates, shall be an arms length transaction and in no event be with an Affiliate of BorrowerBorrower and such lease is on terms which are arm’s-length and commercially reasonable given then-current market conditions, and shall be established pursuant (7) Borrower delivers to the Leasing Guidelines attached hereto Lender within five (5) Business Days after its execution of such lease (i) a fully executed copy of such lease (as Schedule IV; (Famended) the Lease shall be to a tenant which Borrowercertified by Borrower as true and complete, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (Hii) a certificate of Borrower certifying that the Lease is for lease (as amended) satisfies all of the conditions of this Section 8(r) to qualify as a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 LenderQualified Lease.
(bii) Borrower (i) shall observe and perform the obligations which Borrower is required to perform imposed upon the lessor under the LeasesLeases in a commercially reasonable manner; (ii) shall enforce the obligations terms, covenants and conditions contained in the Leases upon the part of the lessee thereunder to be observed or performed by the tenantsin 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 promptly furnish to Lender not collect any notice of default or termination received by Borrower from any tenant, and any notice of default or termination given by Borrower to any tenantthe rents more than one (1) month in advance (other than security deposits); (iv) shall not collect execute any assignment of lessor’s interest in the Leases or the rents for more than thirty (30) days in advance of except as contemplated by the time when the same shall become due, except for bona fide security deposits not in excess of an amount equal to two months rentLoan Documents); (v) shall not enter into not, without the prior written consent of Lender, alter, modify or change any ground Major Lease so as to change the amount of or master Lease of payment date for rent, change the expiration date, grant any part option for additional space or term, materially reduce the obligations of the Propertylessee 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.
(iii) Notwithstanding anything contained herein to the contrary, 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 term of, any Lease during the term of the Loan. Borrower further assign 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 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 to provide such notice shall constitute an Event of Default.
(iv) Borrower shall notify Lender in writing, within two (2) Business Days following receipt thereof, of Borrower’s receipt of any early termination fee or encumber payment or other termination fee or payment paid by any tenant under any Lease; (vii) , and Borrower further covenants and agrees that Borrower shall not, except with hold any such termination fee or payment in trust for the benefit of Lender and that any use of such termination fee or payment shall be subject in all respects to Lender’s prior written consent, cancel or accept surrender or termination of any Lease; (viii) shall not, except with consent in Lender’s prior written consentsole discretion (which consent may include, modify without limitation, a requirement by Lender that such termination fee or amend any Lease (except payment be placed in reserve with Lender to be disbursed by Lender for minor modifications tenant improvement and amendments entered into in leasing commission costs with respect to the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms Property and/or for payment of the Lease), and (ix) any Lease termination Debt 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower otherwise in connection with a draw upon the same in accordance with Loan evidenced by the terms of Note and/or the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing AccountProperty, as so determined by Lender).
Appears in 1 contract
Sources: Loan and Security Agreement (NNN 2003 Value Fund LLC)
Leases. (a) All Leases and other rental arrangements shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. Within ten (10) days after Lender’s request, Borrower shall furnish to Lender a statement of all tenant security deposits, and with executed copies of all Major Leases, together with a detailed breakdown of income and cost associated therewith. All Leases not previously delivered 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 is appropriate for tenancy in a property of comparable quality and nature to Lenderthe applicable Property, certified by Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases or Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not and would not be, after any such extension or modification, a Major Lease; (E) the Lease shall must provide for rental rates and landlord concessions comparable other economic terms which, taken as a whole, are at least equivalent to then-existing local 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, unless with respect to any renewal or amendment, Borrower is obligated to execute and deliver the same pursuant to a Lease in effect as of the date hereof or entered into subsequent to the date hereof and in accordance with the terms hereof). All new Leases must provide that they are subject and subordinate to any current or future mortgage financing on the Properties and that the Tenants agree to attorn to any foreclosing mortgagee at such mortgagee’s request. Upon Borrower’s request, Lender shall be an arms length transaction and reasonably promptly (but in no event be with an Affiliate of later than 10 Business Days following Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F’s request therefor) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial term shall not exceed fifteen (15) years). Lender shall execute and deliver a Subordination Subordination, Non-Disturbance and Attornment Agreement to the Tenant of any future Lease, in substantially the form annexed attached hereto as Schedule IV to Tenants under future commercial Major Leases approved by Lender promptly upon request Exhibit C and with such commercially reasonable changes as may be reasonably requested by Tenants, Tenant from time to time, and which are reasonably acceptable to Lender.
(b) All Leases executed after the date hereof which are Major Leases, and all terminations (other than as a result of a material default by the Tenant thereunder), renewals (other than as required pursuant to any Major Lease) and material amendments of Major Leases (other than as required pursuant to any Major Lease), and any surrender of landlord’s material rights under any Major Lease, 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, a summary of the material economic terms thereof and any termination and other material 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 Lender shall not have notified the Borrower in writing of its disapproval within 10 Business Days after receipt of such submission. Notwithstanding the foregoing, the deemed approval provision of the immediately preceding sentence shall not apply to any Operating Lease or any amendment thereof.
(c) Borrower shall (i) shall observe and perform in a commercially reasonable manner all the material obligations which Borrower is required to perform imposed upon the lessor under the Leases; (ii) shall enforce in a commercially reasonable manner all of the obligations material terms, covenants and conditions contained in the Leases on the part of the lessee thereunder to be performed observed or performed, short of termination thereof, except that Borrower may terminate any Lease following a material default thereunder by the tenantsrespective Tenant or, in the case of Leases which are not Material Leases, if such termination would not have a Material Adverse Effect; (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 of the rents for thereunder more than thirty (30) days one month in advance of the time when the same shall become due, except for bona fide its due date (other than 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of this Agreement); (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 Mortgage; and (v) not cancel or terminate any guarantee of any of the Major Leases without 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. Any request for Lender’s consent pursuant to this Section 5.7(c)(v) shall be submitted to Lender in an envelope marked “URGENT – LENDER’S ATTENTION REQUIRED WITHIN 10 BUSINESS DAYS”, together with a detailed description of the request for which Lender’s consent is sought and any documentation needed for Lender to evaluate such request, and shall be deemed approved if Lender shall not have notified Borrower in writing of its disapproval thereof and the reasons for such disapproval within five Business Days after Borrower shall have given Lender written notice confirming that at least ten 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]”).
(d) 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 at such commercial or savings bank or banks as may be reasonably satisfactory to Lender and 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 lease 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 (bor be fully assignable to Lender) at Borroweror may name Borrower as payee thereunder so long as such bond 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, retain possession provide Lender with evidence reasonably satisfactory to Lender of each 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 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 any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same applied in accordance with the terms of the applicable Lease. Any proceeds of , and Lender shall hold such security deposits in a draw shall be deposited segregated account in accordance with the Clearing Accountapplicable Lease.
Appears in 1 contract
Sources: Loan Agreement (American Casino & Entertainment Properties LLC)
Leases. (a) All At the Closing, Buyer shall assume all of the Leases and other rental arrangements shall then in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate effect, pursuant to the Mortgage, (ii) the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy Assignment and Assumption of its lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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 correctLeases. Notwithstanding anything to the contrary contained in this Agreement, Seller reserves the Loan Documentsright, Lender’s approval shall but is not be required for future Leases or Lease extensions or modifications if obligated, to institute summary proceedings and/or any other proceedings against any tenant (including without limitation the following conditions are satisfied: (ARestaurant Tenant and/or the Operating Tenant) there exists as a result of a default by the tenant thereunder prior to the Closing Date. Seller makes no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with representations and assumes no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses responsibility with respect to landlord without Lender’s prior written consent; (C) the Lease does not conflict with any restrictive covenant affecting continued occupancy of the Property or any other part thereof by any tenant (including without limitation the Restaurant Tenant) and Seller may terminate any Lease (including without limitation the Restaurant Lease and/or the Operating Lease) prior to Closing. Further, Buyer agrees that it shall not be grounds for space Buyer’s refusal to close this transaction that any tenant including without limitation the Restaurant Tenant) is a holdover tenant or in default under its Lease on the Property; (D) Closing Date and Buyer shall accept title subject to such holding over or default without credit against, or reduction of, the Lease is not Purchase Price. Buyer and would not beBuyer’s Principals, after any such extension or modification, a Major Lease; (E) the Lease shall provide for rental rates jointly and landlord concessions comparable to existing local market ratesseverally, shall be an arms length transaction and in no event be indemnify, defend (with an Affiliate of Borrower, and shall be established pursuant to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases approved by Lender promptly upon request with such commercially reasonable changes as may be requested by Tenants, from time to time, and which are counsel reasonably acceptable to Lender.
Seller) and hold Seller and the other Seller Parties harmless from and against all claims, damages, losses, liability, costs and expenses (bincluding reasonable attorneys’ fees) Borrower (i) shall perform incurred by Seller and/or the obligations which Borrower is required other Seller Parties in connection the failure of Buyer, as landlord, to perform any obligations under the Leases; Leases from and after the Closing Date. Seller shall indemnify, defend (iiwith counsel reasonably acceptable to Buyer) shall enforce and hold Buyer harmless from and against all claims, damages, losses, liability, costs and expenses (including reasonable attorneys’ fees) incurred by Buyer and/or the other Buyer Parties in connection with the failure of Seller to perform any obligations as landlord under the Leases prior to be performed by the tenants; (iii) shall promptly furnish to Lender any notice Closing Date and accruing during Seller’s period 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 ownership of the Property; (vi) and this indemnification obligation of Seller shall not further assign or encumber any Lease; (vii) shall notsurvive the Closing for a period of twelve months. Except as otherwise herein provided, except with Lender’s prior written consent, cancel or accept surrender or termination of any Lease; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) 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) provisions of this Section 4.1.9(b) 11.6 shall be void at survive Closing or the election of Lender.
(c) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case earlier termination of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same in accordance with the terms of the applicable Lease. Any proceeds of such a draw shall be deposited in the Clearing AccountAgreement.
Appears in 1 contract
Sources: Hotel Purchase Agreement (Wilshire Enterprises Inc)
Leases. (a) 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 extent 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, in Borrower’s good faith judgment, is appropriate for tenancy in property of comparable quality, must provide for rental rates and other rental arrangements 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 must contain terms and conditions that are commercially reasonable (in each case, unless Lender consents to such Lease in its sole discretion). Subject to the terms of the Encumbered Property Debt Documents, all new Leases must 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 such mortgagee agrees to not disturb such Tenant’s tenancy except in accordance with its Lease.
(b) All new Leases which are Major Leases, and all terminations, renewals and material amendments of Major Leases, and any surrender of rights under any Major Lease, shall in 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 approval prior to the negotiation of a final Lease. Such presentation shall include a summary term sheet of all respects material terms of the proposed Lease or a draft of the proposed Lease together with any additional information concerning such proposed Lease and the proposed Tenant thereunder as may be approved reasonably requested by Lender and (the “Lease Term Sheet”). Each request for approval of a Lease or a Lease Term Sheet shall be on a standard Lease form previously approved by submitted to Lender in an envelope marked “URGENT – LENDER’S ATTENTION REQUIRED WITHIN 7 BUSINESS DAYS”, together with no material modifications (except as approved by Lender). Such Lease form shall provide that (i) a copy of the proposed Lease or the Lease is subordinate to the MortgageTerm Sheet, (ii) a summary of the tenant shall attorn to Lender, provided Lender has agreed not to disturb tenant’s occupancy economic terms thereof and any termination options contained therein together with a detailed breakdown of its leaseincome and costs associated with the proposed Lease, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. 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 written materials obtained by Borrower as being true or the applicable Senior Mezzanine Borrower in connection with its evaluation of the creditworthiness of the proposed Tenant, and correctshall be deemed approved if Lender shall not have notified Borrower in writing of its disapproval thereof and the reasons for such 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]”. Notwithstanding anything contained in If Lender approves or is deemed to have approved the Loan DocumentsLease Term Sheet, Lender’s approval shall not be required for future Leases or of the final Lease extensions or modifications if the following conditions are satisfied: (A) there exists no Default or Event of Default; (B) the Lease is on the standard Lease form approved by Lender with no material modifications, except for commercially reasonable changes agreed to in the ordinary course of Borrower’s business, provided, however, there shall be no material modification limited to any provisions with regard to subordination and attornment, estoppels and other such certificates or liability or indemnification clauses with respect to landlord without Lender’s prior written consent; (C) reasonable confirmation that the final Lease does not conflict with (i) deviate in any restrictive covenant affecting material adverse respect from the Property terms set forth on the Lease Term Sheet or contain any other Lease for space material adverse terms not set forth in the Property; Lease Term Sheet, or (Dii) deviate in any material respect from the approved Lease is not form (and would not be, after any otherwise such extension or modification, a Major Lease; (E) the final Lease shall provide for rental rates and landlord concessions comparable be subject to existing local market rates, Lender’s reasonable written approval). Borrower shall be an arms length transaction and in no event be deliver to Lender a copy of any Lease executed pursuant to a Lease Term Sheet together with an Affiliate of BorrowerOfficer’s Certificate indicating any material deviations from such Lease Term Sheet.
(c) Borrower shall, and shall be established pursuant cause Senior Mezzanine Borrower to the Leasing Guidelines attached hereto as Schedule IV; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; (G) the Lease shall not contain any options or right of renewal, extension or expansion by tenant at rental rates which are below reasonably comparable market rates at the time such Lease is to be executed; and (H) the Lease is for a term of not more than ten (10) years, exclusive of renewal options or rights, which together with the initial 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 commercial Major Leases 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 observe and perform all the material obligations which Borrower is required to perform imposed upon the lessor under the Leases; (ii) shall enforce enforce, to the obligations extent commercially reasonable, all of the material terms, covenants and conditions contained in the Leases on the part of the lessee thereunder to be performed observed or performed, short of termination thereof, except that Senior Mezzanine Borrower may terminate any Lease following a material default thereunder by the tenantsrespective Tenant; (iii) shall promptly furnish to Lender not collect any notice of default or termination received by Borrower from any tenant, and any notice of default or termination given by Borrower to any tenantthe 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 and the Encumbered Debt Documents; and (v) not cancel or terminate any guarantee of any of the Major Leases without the prior written consent of Lender. 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 collect be commingled with any rents for more than thirty 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 (30or 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) days in advance of the time when 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 same shall become dueSenior Mezzanine Loan Agreement). Borrower shall, except for bona fide security deposits not 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 excess of an Eligible Account pledged to Lender an amount equal to two months rent; (v) shall not enter into any ground Lease or master Lease of any part the aggregate security deposits of the Property; Tenants (viand any interest theretofore earned on such security deposits and actually received by Borrower) shall which Borrower, Senior Mezzanine Borrower or their respective Affiliates had 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; (viii) shall not, except with Lender’s prior written consent, modify or amend any Lease (except for minor modifications and amendments entered into in the ordinary course of business, consistent with prudent property management practices, not affecting the economic terms of the Lease), and (ix) any Lease termination or cancellation fees shall be paid returned 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) Within thirty (30) days after the Closing Date, Borrower shall deliver to Lender the original of each Tenant Letter of Credit, together with a blank assignment for each Tenant Letter of Credit as Lender may reasonably require. While any Event of Default exists, Borrower shall use commercially reasonable efforts to obtain from the Issuing Bank its consent to an assignment of each Tenant Letter of Credit to Lender. Provided no Event of Default exists, Lender shall (a) at Borrower’s request, promptly return each or any Tenant Letter of Credit to Borrower in order to allow Borrower to apply or realize upon the same in accordance with the terms of the applicable lease Tenants or (b) at Borrower’s request, retain possession of each or any Tenant Letter of Credit, provided, however, that in the case of this clause (b) Lender shall take all steps reasonably necessary to assist Borrower in connection with a draw upon the same applied in accordance with the terms of the applicable Lease. Any proceeds .
(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 draw 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 the form of the SNDA shall be deposited prescribed by the Lease in question, and Lender shall have approved (or been deemed, in accordance with Section 5.7(b) hereof, to 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 Clearing Accountform prescribed by such approved Lease. Notwithstanding the foregoing, in the case of any 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 Lease as approved by Lender. Lender agrees to reasonably negotiate the terms of the SNDA with any Tenant under any Lease, but shall not be required to execute an SNDA that differs in any material respect from the form attached hereto as Exhibit G. All reasonable out-of-pocket attorneys’ fees and disbursements incurred by Lender in connection with such SNDA shall be payable by Borrower within ten Business Days after Lender’s written request therefor, whether or not the SNDA is ultimately executed and/or recorded.
Appears in 1 contract
Sources: Junior Mezzanine Loan Agreement (Gramercy Capital Corp)