Leases. The Property is not subject to any leases other than the Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstanding.
Appears in 4 contracts
Sources: Loan Agreement (Global Net Lease, Inc.), Loan Agreement (Necessity Retail REIT, Inc.), Loan Agreement (Healthcare Trust, Inc.)
Leases. The Property is not subject Borrower has delivered to Lender true and complete copies of all Leases pursuant to which any leases other than the Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. Borrower is the owner lessor at any of the Properties, including all modifications and lessor (or sublessor) of landlordamendments thereto, which are in Borrower’s interest in the Leasespossession. Except with respect to the Permitted Encumbrancesfor Borrower or affiliates of Borrower occupying all or any part of any Property, no Person person has any possessory interest in any of the Property (or any portion thereof) Properties or right to occupy the same except under and pursuant to the provisions of the LeasesLeases or Permitted Encumbrances. The current Leases Rent Roll is accurate and complete in all material respects, and the applicable Borrower that owns the Property covered by each Lease on the Rent Roll is the lessor under such Lease. Except as indicated on the Rent Roll or Exception Report, no security deposits are being held by Borrower (including bonds or letters of credit being held in full force lieu of cash security deposits) and effect andno Tenant or other party has any option, right of first refusal or similar preferential right to purchase all or any portion of any Property. Subject to the provisions of Section 4.7(a) and except as set forth in the Exception Report, upon foreclosure on any Property, with respect to each Lease at such Property either (i) Lender shall automatically succeed to the rent roll attached hereto as Schedule I rights and obligations of the landlord under such Leases (ii) or such Leases may be terminated in accordance with any tenant estoppel certificate delivered early termination provisions within such Lease. Lender agrees, at Borrower’s sole cost and expense, to Lenderprovide a subordination, there attornment and non-disturbance agreement in form and substance reasonably acceptable to Lender if expressly required pursuant to any Lease. No material amounts are no uncured defaults thereunder payable by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Tenant under a Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with common area maintenance and other routine reconciliations) and no Tenant has the first month’s Rent under a new right to require Borrower to perform or finance any Material Alterations or improvements to the space covered by its Lease). All security deposits are held by Borrower Notwithstanding any provision contained in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered this Agreement to the contrary, Leases may contain (and the same shall be expressly permitted hereunder without notice to or the consent of Lender, except to the extent required pursuant to Section 4.7(b)) the rights of tenants to receive reimbursement, contribution or as otherwise disclosed to Lender in the Lease allowance by landlord for tenant improvements or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent concessions or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received thereinabatements, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or case as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingException Report.
Appears in 4 contracts
Sources: Loan Agreement (Sears Holdings Corp), Loan Agreement, Loan Agreement (Sears Holdings Corp)
Leases. The Property Premises contains 299 apartment units including the two (2) office spaces. The Rent Roll is not subject to any leases other than the Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, correct and complete and accurate in all respects list, as of the Closing Datedate thereof, of all Existing Leases affecting the Premises; the expiration dates of the Existing Leases; the rents payable by tenants thereunder; and security deposits made by tenants and held by Seller, and tenant's portion of any accrued interest thereon, if required by applicable law. Borrower is No tenant has any unilateral right or option to renew or extend the owner and lessor (or sublessor) term of landlord’s interest its lease except as otherwise disclosed in the LeasesRent Roll. There are no sums to be credited to any tenant or any set-offs against rent which may be claimed by any tenant by reason of any alterations, pre-paid rent, rental allowances, repairs, free rent, or otherwise pursuant to any written agreement between such tenant and Seller, except as otherwise disclosed in the Rent Roll. Any payments due to any tenant under any Existing Lease have been made. Except as disclosed on EXHIBIT D, no brokers or other intermediaries are entitled to receive any leasing, brokerage or other compensation out of or with respect to the Permitted Encumbrances, no Person has rents accruing under any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and Existing Leases pursuant to a written agreement between such brokers or other intermediaries and Seller, and no future Leases will make provision therefor. All obligations of Seller as landlord pursuant to Leases, including, without limitation thereto, decorating and alteration work, which shall have accrued at or prior to Closing will have been performed by Seller at or prior to Closing. No apartment is being rented free to any person except as shown on the provisions Rent Roll. Copies of all Existing Leases, together with any modifications or amendments thereto are available for review during the LeasesFeasibility Period by Buyer at the Premises. The current To the best of Seller's knowledge, all Existing Leases are in full force and effect andeffect, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by BorrowerRent Roll. The provisions of this subparagraph (a) shall survive Closing until October 1, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstanding1996.
Appears in 3 contracts
Sources: Agreement of Sale (Clover Income Properties L P), Agreement of Sale (Clover Income Properties Ii L P), Agreement of Sale (Clover Income Properties Iii Lp)
Leases. The Property is (a) 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, (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 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, 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 any leases other than the Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions terms of the Leases. The current Leases are 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 and, except in the full amount of such deposits unless replaced by cash deposits as set forth on the rent roll attached hereto as Schedule I or herein-above described and shall in all respects comply with any tenant estoppel certificate delivered applicable Legal Requirements and otherwise be satisfactory to Lender. Borrower shall, there are no uncured defaults thereunder by Borrower norupon request, provide Lender with evidence satisfactory to the best Lender of Borrower’s knowledge, any other party thereunder and, to the best of Borrowerand Owner’s knowledge, there are no conditions that, compliance with the passage foregoing.
(c) Borrower (i) shall cause Owner to observe and perform all of time its material obligations under the Leases pursuant to applicable Legal Requirements and shall not do or permit to be done anything to impair the giving value of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered the Leases; (ii) shall cause Owner to Lender, or as otherwise disclosed promptly send copies to Lender of all notices of material default which Owner shall receive under the Leases; (iii) shall, consistent with the Approved Manager Standard, enforce all of the terms, covenants and conditions contained in the Lease Leases to be observed or by Borrower, no Rent has been paid performed; (iv) shall not permit Owner to collect any of the Rents under the Leases more than one (1) month in advance (except that Owner may collect in advance such security deposits as are permitted pursuant to applicable Legal Requirements and are commercially reasonable in the prevailing market); (v) shall not permit Owner to cancel or terminate any of its due date (other than the Leases or accept a surrender thereof in connection any manner inconsistent with the first month’s Rent under a new Lease). All security deposits are held by Borrower Approved Manager Standard; (vi) shall not permit Owner to alter, modify or change the terms of any guaranty of any Major Space Lease or cancel or terminate any such guaranty; (vii) shall cause Owner, in accordance with applicable lawthe Approved Manager Standard, to make all reasonable efforts to 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. Except as set forth in In all instances that Owner is required to obtain the consent of Mortgage Lender prior to entering into any tenant estoppel certificate delivered Lease, Lease amendment, modification or termination, Borrower shall cause Owner to obtain Lender’s consent to such proposed Lease, Lease amendment, modification or as otherwise disclosed termination prior to permitting or causing Owner to submit the proposed Lease, Lease amendment, modification or termination to Mortgage Lender. Borrower shall, and shall cause Owner to, promptly send copies to Lender in of all notices of material default which Owner shall receive under the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingLeases.
Appears in 3 contracts
Sources: Loan and Security Agreement (Morgans Hotel Group Co.), Loan and Security Agreement (Morgans Hotel Group Co.), Loan and Security Agreement (Morgans Hotel Group Co.)
Leases. The Property is not subject (a) Grantor shall keep, observe and perform, or cause to any leases other than the Leases described in the rent roll attached hereto as Schedule I be kept, observed and made a part hereofperformed, which rent roll is trueusing its “reasonable” commercial business judgment, complete and accurate in all respects as of the Closing Date. Borrower is the owner material terms, covenants, provisions and lessor (agreements imposed upon or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder assumed by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant Grantor under any Lease has a right Leases, now or option pursuant hereafter in effect, including any amendments or supplements to such Lease or otherwise to purchase all or Leases covering any part of the leased premises Mortgaged Property that is affected by the terms, covenants, provisions and agreements imposed upon or assumed by Grantor in such Leases;
(b) If Grantor shall, in any manner, fail to comply with subsection (a) above, Grantor agrees that upon the building occurrence and during the continuance of which an Event of Default, Beneficiary may (but shall not be obligated to) take, upon ten (10) days’ written notice to Grantor (or upon lesser notice, or without notice, if Beneficiary reasonably deems that the leased premises are a part. Except as disclosed same is required to Lender or as set forth protect its interest in the Leases Mortgaged Property), any action which Beneficiary shall reasonably deem necessary or except desirable to keep, observe and perform or cause to be kept, observed or performed any such terms, covenants, provisions or agreements and to enter upon the Mortgaged Property and take all action thereon as set forth may be necessary therefor, or to prevent or cure any default by Grantor in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of or compliance with any of Grantor’s covenants or obligations under its Lease said Leases. Beneficiary may rely on any notice of default received from any tenant unless, in connection with any such default or (ii) made alleged default Grantor in good faith notifies Beneficiary of Grantor’s election to contest such default by appropriate procedures and diligently pursues such contest. Grantor shall promptly deliver to Beneficiary a copy of any other bona fide request notice relating to defaults received from any tenant that is a party, or the trustee, receiver or successor for or otherwise given to a party, to any of said Leases. Beneficiary may expend such sums of money as are reasonable and necessary for any such purposes, and Grantor hereby agrees to pay to Beneficiary, immediately upon demand, all sums so expended by Beneficiary, together with interest thereon from the date of such payment at the Default Rate, and until so paid by Grantor, all sums so expended by Beneficiary and the interest thereon shall be added to the Obligations secured by the lien and legal operation and effect of this Deed of Trust; and
(c) Grantor will not, without the prior written notice that it intends to seek consent of the Beneficiary, amend, modify, terminate or cancel any amendment, waiver, deferral, forbearance or other modification of the Leases of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result part of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingMortgaged Property except in accordance with Grantor’s customary business practices.
Appears in 2 contracts
Sources: Credit Agreement (Mueller Water Products, Inc.), Credit Agreement (Mueller Water Products, Inc.)
Leases. The Property is not subject Borrower has delivered to any leases other than the Agent (i) true copies of the forms of the Leases described in used by the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects Borrower at the Mortgaged Properties as of the Closing Date. Borrower is date hereof and (ii) true, correct and complete copies of the owner Leases and lessor (any amendments or sublessor) other agreements thereto relating to the Mortgaged Properties as of landlord’s interest the date of inclusion of the Mortgaged Property in the LeasesCollateral. Except An accurate and complete Rent Roll and summary thereof in a form reasonably satisfactory to the Agent as of the date of inclusion of the Mortgaged Property in the Collateral with respect to all Leases of any portion of the Permitted Encumbrances, no Person Mortgaged Property has any possessory interest been provided to the Agent. The Leases reflected on such Rent Roll constitute as of the date thereof the sole agreements and understandings relating to leasing or licensing of space at the Mortgaged Property and in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions Building relating thereto. Each of the Leases. The current Leases are was entered into as the result of arms-length negotiation and has not been modified, changed, altered, assigned, supplemented or amended in full force and effect andany respect, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate a separate written certification delivered to Lender, there are no uncured defaults thereunder by Borrower nor, Agent prior to the best acceptance of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except such Mortgaged Property as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable TenantCollateral, and no tenant is entitled to any payments, free rent, partial rent, rebate of rent or other payments, creditscredit, allowances reduction or abatements required to be given by Borrower to any Tenant alternate rent, offset or deduction in rent, including, without limitation, lease support payments, lease buy-outs or reduced or altered rent as a result of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge operation of any Lease co-tenancy or of the Rents received thereinsimilar clause, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease separate written certification delivered to Agent prior to the acceptance of such Mortgaged Property as Collateral. There are no occupancies, rights, privileges or licenses in or to the Mortgaged Property or portion thereof other than pursuant to the Leases reflected in Rent Rolls previously furnished to the Agent for the Mortgaged Property. Except as set forth in a separate written certification delivered to Agent prior to the acceptance of such Mortgaged Property as Collateral, (a) the Leases reflected in the Rent Roll are in full force and effect in accordance with their respective terms, without any payment default or any other material default thereunder, nor are there any defenses, counterclaims, offsets, concessions or rebates available to any tenant estoppel certificate delivered thereunder, and neither the Borrower, the Guarantors nor any of their respective Subsidiaries has given or made any notice of any payment or other material default, or any claim, which remains uncured or unsatisfied, with respect to Lenderany of the Leases, and (b) no Tenant tenant under any Lease has a currently effective right to terminate its Lease as a result of the operation of any co-tenancy or option similar clause. The separate written certification delivered to Agent prior to the acceptance of such Mortgaged Property as Collateral accurately and completely sets forth all rents payable by and security, if any, deposited by tenants, no tenant having paid more than one month’s rent in advance. All tenant improvements or work to be done for tenants on the Rent Roll, furnished or paid for by the Borrower, the Guarantors or any of their respective Subsidiaries, or credited or allowed to a tenant, for, or in connection with, the Building pursuant to such any Lease has been completed and paid for or otherwise provided for in a manner satisfactory to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or Agent except as set forth in the separate written certification delivered to Agent prior to the acceptance of such Mortgaged Property as Collateral. No material leasing, brokerage or like commissions, fees or payments are due from the Borrower, the Guarantors or any of their respective Subsidiaries in respect of the Leases or except as set forth in any tenant estoppel certificate the separate written certification delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect Agent prior to the payment acceptance of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise such Mortgaged Property as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingCollateral.
Appears in 2 contracts
Sources: Secured Master Loan Agreement (Ramco Gershenson Properties Trust), Secured Master Loan Agreement (Ramco Gershenson Properties Trust)
Leases. The Property (a) 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 not located to make payments directly to the Lockbox Account. Subject to the rights of Mortgage Lender under the Mortgage 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 any leases other than the Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions terms of the Leases. The current Leases are 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 and, except in the full amount of such deposits unless replaced by cash deposits as set forth on the rent roll attached hereto as Schedule I or herein-above described and shall in all respects comply with any tenant estoppel certificate delivered applicable Legal Requirements and otherwise be satisfactory to Lender. Borrower shall, there are no uncured defaults thereunder by Borrower norupon request, provide Lender with evidence satisfactory to the best Lender of Borrower’s knowledge, any other party thereunder and, to the best of Borrowerand Owner’s knowledge, there are no conditions that, compliance with the passage foregoing.
(c) Borrower (i) shall cause Owner or Operating Tenant to observe and perform all of time its material obligations under the Leases pursuant to applicable Legal Requirements and shall not do or permit to be done anything to impair the giving value of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered the Major Space Leases; (ii) shall cause Owner to Lender, or as otherwise disclosed promptly send copies to Lender of all notices of material default which Owner shall receive under the Major Space Leases; (iii) shall, consistent with the Approved Manager Standard, enforce all of the terms, covenants and conditions contained in the Lease Leases to be observed or by Borrower, no Rent has been paid performed; (iv) shall not permit Owner to collect any of the Rents under the Major Space Leases more than one (1) month in advance (except that Owner may collect in advance such security deposits as are permitted pursuant to applicable Legal Requirements and are commercially reasonable in the prevailing market); (v) shall not permit Owner to cancel or terminate any of its due date (other than the Leases or accept a surrender thereof in connection any manner inconsistent with the first month’s Rent under Approved Manager Standard; (vi) shall not permit Owner to alter, modify or change the terms of any guaranty of any Major Space Lease or cancel or terminate any such guaranty in a new Lease). All security deposits are held by Borrower manner inconsistent with the Approved Manager Standard; (vii) shall cause Owner, in accordance with applicable lawthe Approved Manager Standard, to make all reasonable efforts to 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. Except as set forth in any tenant estoppel certificate delivered to LenderBorrower shall, or as otherwise disclosed and shall cause Owner to, promptly send copies to Lender in of all notices of material default which Owner shall receive under the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingLeases.
Appears in 2 contracts
Sources: Loan and Security Agreement (Ashford Hospitality Trust Inc), Loan and Security Agreement (Ashford Hospitality Trust Inc)
Leases. The rent roll delivered by Seller to Buyer attached hereto as Exhibit 6.07 is true, correct and accurate as of the date thereof. There are no leases affecting the Property is not subject to any leases other than the Leases described in listed on the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as roll. Each of the Closing Date. Borrower Leases is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect andand has not been further modified or amended except as otherwise disclosed by Seller to Buyer in writing. There are no written or oral promises undertakings, or agreements between Seller and any tenant that have not been disclosed by Seller as part of Seller's Information provided by Seller to Buyer, except as set forth on in the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s Leases. To Seller's actual knowledge, there are no conditions thatdefaults by any party to the Leases or any defenses, setoffs, or counterclaims for the benefit of the tenants under the Leases and no rent has been prepaid nor concessions given to the tenants under the Leases except as disclosed in the Leases. To Seller's actual knowledge, no tenant of the Property is the subject of a bankruptcy or insolvency proceeding. To Seller’s actual knowledge, there are no currently existing facts which, with the passage giving of time notice or the giving lapse of noticetime, or both, would constitute defaults thereunder. Except as set forth in a default by Seller or any tenant estoppel certificate delivered to Lenderunder the Leases, or as otherwise disclosed which has given rise to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in current dispute between Seller and any tenant estoppel certificate delivered to Lenderunder the Leases. No Lease is presently in arbitration or litigation, or as otherwise disclosed to Lender in the Lease or by Borrowerand no tenant, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease date hereof has any right charge, lien or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations offset under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance against the rent or other modification charges due or to become due under such tenant’s Lease. Seller, to its actual knowledge, is in full compliance with all of its obligations under the Leases. Except as otherwise provided in Section 11.12 hereof, all tenant improvement allowances due any tenant currently occupying a portion of the Property have been or will be paid in full by Seller. Seller has not released any guarantors of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic Leases and will not, prior to Closing, release any person or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingentity having liability under a Lease to the Seller as lessor therein.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Inland Diversified Real Estate Trust, Inc.)
Leases. The (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 subject 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 any leases other than 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 Leases described in the rent roll Leasing Guidelines attached hereto as Schedule I IV; (F) the Lease shall be to a tenant which Borrower, in its professional and made 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 part hereofterm of not more than ten (10) years, exclusive of renewal options or rights, which rent roll is true, complete together with the initial term shall not exceed fifteen (15) years). Lender shall execute and accurate in all respects as of the Closing Date. Borrower is the owner deliver a Subordination Non-Disturbance and lessor (or sublessor) of landlord’s interest Attornment Agreement in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached form annexed hereto as Schedule I or in any tenant estoppel certificate delivered 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, there are no uncured defaults thereunder by .
(b) Borrower nor, (i) shall perform the obligations which Borrower is required to perform under the best of Borrower’s knowledge, any other party thereunder and, to Leases; (ii) shall enforce the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work obligations to be performed by the tenants; (iii) shall promptly furnish to Lender any notice of default or termination received by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenantfrom any tenant, and any payments, free rent, partial rent, rebate notice of rent default or other payments, credits, allowances or abatements required to be termination given by Borrower to any Tenant as tenant; (iv) shall not collect any rents for more than thirty (30) days in advance of the Closing Date has already been received by time when the same shall become due, except for bona fide security deposits not in excess of an amount equal to two months rent; (or credited tov) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of shall not enter into any ground Lease or master Lease of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises 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 building ordinary course of which business, consistent with prudent property management practices, not affecting the leased premises are a part. Except as disclosed economic terms of the Lease), and (ix) any Lease termination or cancellation fees shall be paid to Lender or as set forth and held in the Leases or except 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 set forth in Lender may reasonably require. While any tenant estoppel certificate delivered 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, no Lender shall (a) at Borrower’s request, promptly return each or any Tenant under 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 Lease has any right or option for additional space Tenant Letter of Credit, provided, however, that in the Improvementscase 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. Except as disclosed to Lender in writing or as set forth Any proceeds of such a draw shall be deposited in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingClearing Account.
Appears in 2 contracts
Sources: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Leases. The Property is not subject to any leases other than (a) Borrower shall deliver copies of all Space Leases, and amendments, modifications and renewals thereof entered into after the Leases described in the rent roll attached hereto as Schedule I and made a part date hereof, to Lender. All new Space Leases shall provide for rental rates comparable to then existing local market rates and terms and conditions which rent roll is trueconstitute good and prudent business practice and are consistent with prevailing market terms and conditions, complete and accurate and, except for Space Leases with the Manager not in all respects as excess of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except 4,000 square feet with respect to any Project, shall be arms-length transactions. On the Permitted EncumbrancesOriginal Date, no Person Borrower has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there and Lender has approved, standard forms of Space Lease for the Projects, which provide that they are subordinate to the Loan and that the lessees thereunder will attorn to Lender.
(b) Borrower shall not enter into a proposed Major Space Lease or a proposed renewal, extension or modification (affecting monetary terms and/or other terms that are material in nature) of an existing Major Space Lease without the prior written consent of Lender which consent shall not, so long as no uncured defaults thereunder Event of Default exists, be unreasonably withheld or delayed (it being agreed and acknowledged by Borrower northat 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 best Projects and the availability of Borrower’s knowledgethe 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 other party thereunder andexisting Major Space Lease, the foregoing shall not be deemed to limit the best right of Borrower’s knowledge, there are no conditions that, with the passage any tenant to extend or renew its lease pursuant to any such right or option in favor of time or the giving of notice, or both, would constitute defaults thereunder. Except as any such tenant expressly set forth in its Lease. Any request by Borrower for Lender’s approval of a proposed Major Space Lease shall be in writing and shall be accompanied by a copy of such proposed Major Space Lease, together with a summary of the material terms thereof (including, but not limited to, the proposed tenant improvement costs and leasing commissions) and a copy of such proposed lease as blacklined to show changes from the Standard Lease Form approved by Lender. Lender shall approve or disapprove each proposed Major Space Lease or proposed renewal, extension or modification of an existing Major Space Lease for which Lender’s approval is required under this Agreement within ten (10) Business Days after the submission by Borrower to Lender of such written request for such approval, after which such proposed Major Space Lease shall be deemed to have been approved by Lender. If requested by Borrower, within five (5) Business Days after request therefor, Lender will grant conditional approval of proposed Major Space Leases or proposed renewals, extensions or modifications of existing Major Space Leases based upon the initial summary of material terms, provided that Lender shall retain the right to disapprove any tenant estoppel certificate delivered such proposed Major Space Lease or proposed renewal, extension or modification of an existing Major Space Lease, if subsequent to any preliminary approval material changes are made to the terms previously approved by Lender, or as otherwise disclosed to additional material terms are added that had not previously been considered and approved by Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with such proposed Major Space Lease or proposed renewal, extension or modification of an existing Major Space Lease or if the first month’s Rent under a new Lease)form of proposed Major Space Lease reflects material revisions to the Standard Lease Form that are not either (y) required to reflect the approved terms and conditions of the proposed Major Space Lease or (z) consistent with changes then being made generally to lease documents in the then current leasing market for comparable space in similar buildings in the locale of the Project in question. All security deposits are held If requested by Borrower in accordance with applicable law. Except as set forth in any respect to a tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or a proposed Major Space Lease, and/or (ii) made any other bona fide request for that is a “national” or otherwise given written notice that it intends “credit” tenant, Lender agrees to seek any amendmententer into its standard form of Subordination, waiverNon-disturbance and Attornment agreement with such tenant, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant with such revisions to any force majeure clause contained in its Lease or otherwise such form as a result of are requested by the COVID-19 pandemic or any Emergency Law proposed tenant and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingreasonably acceptable to Lender.
Appears in 2 contracts
Sources: Loan Agreement (Mack Cali Realty Corp), Loan Agreement (Mack Cali Realty L P)
Leases. The Property is not Any Leases in excess of three thousand (3,000) square feet (each such Lease a “Material Lease”) written after the date hereof shall be subject to Lender’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Upon request, Borrower shall furnish Lender 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 contain any leases other than terms which would materially adversely affect Lender’s rights under the Loan Documents. Prior to entering into any Lease or any modification thereof, Borrower 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 shall, and shall cause the related Manager to, (i) observe and perform the obligations imposed upon the lessor under the Leases described 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 rent roll attached hereto as Schedule I and made a Leases upon the part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. lessee thereunder to be observed or performed in a commercially reasonable 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 is 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 owner and lessor Individual Property; provided, however, that no such termination or surrender of any Material Lease will be permitted without the written consent of Lender; (or sublessoriii) not collect any of landlord’s interest in the Leases. Except with respect Rents relating to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (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 first month’s Rent under Leases as Lender shall from time to time reasonably require. Notwithstanding anything to the contrary contained herein, Borrower shall not enter into a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, lease of all or as otherwise disclosed to Lender in the Lease or by Borrower, substantially all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each caseIndividual Property without Lender’s prior written consent, which is outstanding. To Borrowerconsent maybe withheld in Lender’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law sole and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingabsolute discretion.
Appears in 2 contracts
Sources: Loan Agreement (W2007 Grace Acquisition I Inc), Loan Agreement (American Realty Capital Hospitality Trust, Inc.)
Leases. Section 1.1. The Property Borrower will not assign the Leases without the prior written consent of the Bank. The Bank shall have the right, at any time and from time to time, to notify any tenant of the rights of the Bank provided under this Assignment.
Section 1.2. When any Lease expires or terminates, or as any new lease is not made, the Borrower shall so notify the Bank in order that at all times the Bank shall have a current list of all Leases affecting the Property. All subsequent Leases shall be and are hereby made subject to all of the terms of this Assignment. The Borrower, upon the Bank's request, shall further assign and transfer such subsequent Leases to the Bank by an assignment in form and substance satisfactory to the Bank.
Section 1.3. The Borrower shall, at its sole cost and expense, perform every obligation of the landlord and shall enforce, short of termination, every obligation of and any leases other than default against the Leases described tenant in every Lease. The Borrower will promptly notify the Bank if the Borrower transmits or receives any notice of default under any Lease, or of any change in the occupancy of the Property, and shall promptly forward a complete copy of such notice to the Bank.
Section 1.4. This Assignment shall not be deemed to impose upon the Bank any of the obligations or duties of the Borrower provided in any Lease (including, without limitation, any liability under the covenant of quiet enjoyment contained in any Lease) in the event that any tenant shall have been joined as a party defendant in any action to foreclose this Assignment or the Mortgage and shall have been barred and foreclosed thereby of all right, title and interest and equity of redemption in the Property.
Section 1.5. Any and all tenant's security deposits in excess of one month's rent roll attached hereto under any Leases shall be deposited and pledged with the Bank upon such terms as Schedule I the Bank may require so that they cannot be used by the Borrower without the Bank's consent. These deposits shall be transferred to the purchaser or redeemer of the Property in the event of a foreclosure by sale or a strict foreclosure.
Section 1.6. The Borrower will not take any action which would cause any Lease to cease to be in full force and made a part hereofeffect, and will not, except with the prior written consent of the Bank: (i) cancel or terminate any Lease, or consent to any cancellation, termination or surrender thereof; (ii) amend, modify or subordinate any Lease; (iii) enter into any new Lease; (iv) waive any default under or breach of any Lease; (v) consent to any prepayment or discount of rent or advance rent under any Lease; or (vi) take any other action in connection with any Lease which may, impair or jeopardize the validity of such Lease or the Bank's interest therein. The Bank shall have the right to review and reasonably refuse written consent to any of the above proposed actions of the Borrower based upon the substance of the proposed transaction, the creditworthiness of the Borrower or the tenant, the financial or physical condition of the Property or otherwise.
Section 1.7. The Bank shall not be obligated to perform or discharge any obligation under any Lease, or under or by reason of this Assignment, and the Borrower agrees to indemnify, defend and hold harmless the Bank against and from any and all liability, loss, claims, demands or damage whatsoever, including the defense thereof, which rent roll is true, complete may be asserted against the Bank (i) under any Lease or under or by reason of this Assignment and accurate in all respects as (ii) by reason of any alleged obligation or undertaking on its part to perform or discharge any of the Closing Dateterms of any Lease. Should the Bank incur any such liability, loss or damage, the amount thereof shall be treated as a Bank Advance pursuant to Section 6 hereof.
Section 1.8. The Borrower shall not convey the Property to any tenant now or hereafter occupying the Property or any part thereof, unless (i) the Bank's prior written consent is obtained and (ii) the owner deed or other conveyance contains a provision in form satisfactory to the Bank that the Lease of such tenant shall not merge into the fee by reason of such conveyance and lessor that the Lease, together with the obligation to pay rent and other charges thereunder, shall continue in full force and effect.
Section 1.9. The Borrower will deliver to the Bank within ten (10) days after any request (or sublessorsuch longer period of time if Borrower uses its best efforts and due diligence in obtaining such delivery) of landlord’s interest in the Leases. Except a duly acknowledged lease ratification and estoppel agreement with respect to any Lease executed by the Permitted EncumbrancesBorrower and the tenant thereunder, no Person indicating (i) the date the original Lease term has any possessory interest in commenced, (ii) that the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are Lease is in full force and effect andand no default exists thereunder, except as set forth on (iii) that the rent roll attached hereto as Schedule I or tenant has accepted and is in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best possession of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any that portion of the premises demised therebyProperty subject to the Lease, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has and (i) asserted any defense or otherwise sought or given notice (whether written or oraliv) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that no rental payments have been withdrawn or resolved or are otherwise no longer outstandingmade more than thirty (30) days.
Appears in 2 contracts
Sources: Collateral Assignment of Leases, Rentals, and Property Income (Edac Technologies Corp), Collateral Assignment of Leases, Rentals, and Property Income (Edac Technologies Corp)
Leases. The Property is not subject Loan Parties have delivered to any leases other than the Agent true and complete copies of the Leases described in the rent roll attached hereto and any amendments thereto relating to each Collateral Property required to be delivered as Schedule I and made a part of the Eligible Real Estate Qualification Documents as of the date hereof, which rent roll is true, . An accurate and complete and accurate Rent Roll in all material respects as of the Closing Date. Borrower is the owner and lessor (or sublessor) date of landlord’s interest inclusion of each Collateral Property in the Leases. Except Collateral with respect to all Leases of any portion of the Permitted Encumbrances, no Person Collateral Property has any possessory interest been provided to the Agent. The Leases previously delivered to Agent as described in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would preceding sentence constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required date thereof the sole material agreements relating to leasing or licensing of space at such Collateral Property and has been accepted by in the applicable Tenant, and Building relating thereto. No tenant under any payments, Lease is entitled to any free rent, partial rent, rebate of rent or other payments, creditscredit, allowances offset or abatements required to be given by Borrower to any Tenant deduction in rent, including, without limitation, lease support payments or lease buy-outs, except as reflected in such Leases or such Rent Roll. Except as set forth in Schedule 6.22, the Leases reflected therein are, as of the Closing Date date of inclusion of the applicable Collateral Property in the Collateral, in full force and effect in accordance with their respective terms, without any payment default or any other material default thereunder, nor are there any material defenses, counterclaims, offsets, concessions or rebates available to any tenant thereunder, and except as reflected in Schedule 6.22, no Borrower has already been received by (given or credited to) such Tenant. There has been no prior salemade, transfer or assignment, hypothecation or pledge any notice of any payment or other material default, or any claim, which remains uncured or unsatisfied, with respect to any of the Leases, and to the best of the knowledge and belief of the Loan Parties, there is no basis for any such claim or notice of default by any tenant except in the case of any of the foregoing, those matters which would not result in a Material Adverse Effect. No Borrower knows of any condition which with the giving of notice or the passage of time or both would constitute a default on the part of any tenant with respect to the material terms under a Lease or of the Rents received therein, in each caserespective Borrower as landlord under the Lease, which is outstandingwould result in a Material Adverse Effect. To Borrower’s knowledge, no Tenant listed on Schedule I No security deposit or advance rental or fee payment (more than 2 months in advance) has assigned its Lease been made by any lessee or licensor under the Leases except as set forth may be specifically designated in any tenant estoppel certificate delivered the copies of the Leases furnished to Lender, the Agent or as otherwise disclosed to Lender Agent in writing. No property other than the Lease or by Borrower, sublet all or any portion Collateral Property which is the subject of the premises demised therebyapplicable Lease is necessary to comply with the requirements (including, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lenderwithout limitation, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (iparking requirements) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingsuch Lease.
Appears in 2 contracts
Sources: Credit Agreement (Wheeler Real Estate Investment Trust, Inc.), Credit Agreement (Wheeler Real Estate Investment Trust, Inc.)
Leases. The Property is not subject to any leases other than the (a) All Major Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate shall in all respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no modifications (except as approved by Lender). Such Lease form shall provide that (i) the Major Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, and (iii) that any cancellation, surrender, or amendment of such Major Lease without the Closing Dateprior written consent of Lender shall be voidable by Lender. Borrower is the owner and lessor (or sublessor) of landlord’s interest shall hold, in the Leases. Except with respect trust, all tenant security deposits in a segregated account, and, to the Permitted Encumbrancesextent required by applicable law, no Person has shall not commingle any possessory interest in the Property such funds with any other funds of Borrower. Within ten (or any portion thereof10) or right days after Lender’s request, Borrower shall furnish to occupy the same except under Lender a statement of all tenant security deposits, and pursuant to the provisions copies of the Leases. The current all Major Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate not previously delivered to Lender, there are no uncured defaults thereunder certified by Borrower noras being true and correct. Notwithstanding anything contained in the Loan Documents, to Lender’s approval shall not be required for future Leases or Lease extensions if the best following conditions are satisfied: (A) there exists no Default or Event of Borrower’s knowledge, Default; (B) the Lease does not conflict with any restrictive covenant affecting the Property or any other party thereunder andLease for space in the Property; and (C) if the Lease is not a Major Lease. Lender shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement in the form annexed hereto as Schedule IV to Tenants under future Major Leases approved by Lender promptly upon request with such commercially reasonable changes as may be requested by Tenants, from time to the best of Borrower’s knowledgetime, there and which are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered reasonably acceptable to Lender, or as otherwise disclosed .
(b) Borrower (i) shall perform in all material respects the obligations which Borrower is required to Lender perform under the Leases; (ii) shall enforce in all material respects the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work obligations to be performed by the tenants; (iii) shall promptly furnish to Lender any notice of default or termination received by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenantfrom any tenant, and any payments, free rent, partial rent, rebate notice of rent default or other payments, credits, allowances or abatements required to be termination given by Borrower to any Tenant as tenant; (iv) shall not collect any rents for more than thirty (30) days in advance of the Closing Date has already been received by time when the same shall become due, except for bona fide security deposits not in excess of an amount equal to two months rent; (or credited tov) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of shall not enter into any ground Lease or master Lease of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises Property; (vi) shall not further assign or the building encumber any Lease; (vii) shall not, except with Lender’s prior written consent, cancel or accept surrender or termination of which the leased premises are a part. Except as disclosed to Lender any Major Lease; and (viii) shall not, except with Lender’s prior written consent, modify or as set forth amend any Major Lease (except for minor modifications and amendments entered into in the Leases or except as set forth in any tenant estoppel certificate delivered to Lenderordinary course of business, no Tenant under any Lease has any right or option for additional space in consistent with prudent property management practices, not affecting the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result economic terms of the COVID-19 pandemic or any Emergency Law Lease). Any action in violation of clauses (v), (vi), (vii), and (Bviii) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingof this Section 4.1.9(b) shall be void at the election of Lender.
Appears in 2 contracts
Sources: Loan Agreement (Interstate Hotels & Resorts Inc), Loan Agreement (Interstate Hotels & Resorts Inc)
Leases. The Property is (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 subject to accept prepayments of rent for any leases other than 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 described to be performed by Trustor and shall appear in and defend any action in which the rent roll attached hereto as Schedule I validity of any Lease is at issue and made commence and maintain any action or proceeding necessary to establish or maintain the validity of any lease and to enforce the provisions thereof,
(ii) If a part hereof, which rent roll is true, complete and accurate in all respects as leasehold estate constitutes a portion of the Closing DateTrust Estate, then, except as otherwise permitted under the Credit Agreement, Trustor agrees not to amend, change, terminate or modify such leasehold estate or any interest therein without the prior written consent of the Lenders. Borrower is Consent to one amendment, change, agreement or modification shall not be deemed to be a waiver of the owner right to require consent to other, future or successive amendments, changes, agreements or modifications. Trustor agrees to perform all obligations and lessor (agreements under said leasehold and shall not take any action or sublessor) omit to take any action which would affect or permit the termination of landlord’s interest said leasehold. Trustor agrees to promptly notify Beneficiary’ in the Leases. Except writing with respect to any default or alleged default by any party thereto and to deliver to Beneficiary copies of all notices, demands, complaints or other communications received or given by Trustor with respect to any such default or alleged default. Beneficiary shall have the Permitted Encumbrancesoption to cure any such default and to perform any or all of Trustor’s obligations thereunder. All sums expended by Beneficiary in curing any such default shall be secured hereby and shall be immediately due and payable without demand or notice and shall bear interest from date of expenditure at Agreed Rate.
(iii) Subject to the Credit Agreement and except as otherwise permitted under the Credit Agreement, no Person has each Lease of any possessory interest portion of the Trust Estate shall be absolutely subordinate to the lien of this Deed of Trust, but shall contain a provision satisfactory to the Lenders, and in any event, each tenant thereunder, by virtue of executing a Lease covering the Property (Premises or any portion thereof) , hereby agrees, that in the event of the exercise of the private power of sale or right a judicial foreclosure hereunder, such Lease, at the option of the purchaser at such sale, shall not be terminated and the tenant thereunder shall attorn to occupy such purchaser and, if requested to do so, shall enter into a new Lease for the balance of the term of such Lease then remaining upon the same except under terms and pursuant 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 execution of any and all Leases executed after the 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 provisions of the Leases. The current Leases are in full force Lenders and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered immediately thereafter deliver such agreement to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingBeneficiary.
Appears in 2 contracts
Sources: Deed of Trust (Cadiz Inc), Deed of Trust (Cadiz Inc)
Leases. The Property is (a) Notwithstanding anything to the contrary herein, Mortgagor shall not subject enter into any Lease without Mortgagee’s prior written consent, and shall furnish to any leases other than the Leases described in the rent roll attached hereto as Schedule I and made Mortgagee, upon execution, a part hereof, which rent roll is true, complete and accurate in all respects as fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the Closing Date. Borrower is consent of Mortgagee and with any information requested by Mortgagee regarding the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults proposed Tenant thereunder. Except as set forth in Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any tenant estoppel certificate delivered to Lender, rents or as otherwise disclosed to Lender in other payments due thereunder; not permit the Lease prepayment of any rents or by Borrower, no Rent has been paid other payments due for more than one (1) month in advance 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 due obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine percent (other than 9%) in connection with excess of the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except one month LIBOR Rate (as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender and defined in the Lease or by BorrowerLoan Agreement).
(e) For purposes of this Mortgage, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by following terms shall have the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstanding.following meanings:
Appears in 2 contracts
Sources: Construction Loan Mortgage (Cardinal Ethanol LLC), Construction Loan Mortgage (One Earth Energy LLC)
Leases. The Property is not subject (A) 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 leases Borrower, absent Lender’s prior written consent, enter into any Leases (i) other 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 connection with Lender’s review of any Lease.
(B) All Leases entered into after the Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects 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 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) Each Borrower is 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 owner 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 and lessor (or sublessor) shall enforce all of landlord’s interest the material terms, covenants and conditions contained in the Leases. Except with respect Leases upon the part of the lessees thereunder to be observed or performed and shall effect a termination or diminution of the obligations of tenants under leases only in a manner that a prudent owner of a similar property to the Permitted Encumbrances, no Person has any possessory interest Properties would enforce such terms covenants and conditions or effect such termination or diminution in the Property ordinary course of business.
(or D) Borrowers shall not collect any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Rents under Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) 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 its due date an Event of Default, shall furnish Lender with executed copies of all Leases hereafter made (other than in connection with to the first month’s Rent under a new Leaseextent not theretofore provided to Lender). All security deposits are held by Borrower Each Lease at an Individual Property shall specifically provide that such Lease is subordinate to the Mortgage encumbering such Individual Property; and that in accordance with applicable lawno 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. Except as set forth in any Each Lease entered into after the date hereof, shall specifically provide that the tenant estoppel certificate delivered attorns to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work such attornment to be performed by Borrower under each Lease 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 Closing Date has been performed as required and has been accepted tenant shall not be terminated by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingforeclosure.
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. The Property is not subject There are no leases, licenses or other agreements granting to any leases party any tenancy, license or right to use or occupy any portion of the Real Property other than the Leases described in (or, to the rent roll attached hereto as Schedule I and Knowledge of Seller, subleases, licenses, tenancies or other possession or occupancy agreements entered into by the tenants under Leases). Seller has made a part hereof, which rent roll is available to the Purchasers true, correct and complete and accurate in all respects as copies of the Closing Date. Borrower is the owner and lessor (or sublessor) each of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereofas set forth on Section 15(x) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are Seller Disclosure Letter, (i) each Lease is in full force and effect andand constitutes valid, except as set forth on legal and binding obligations of the rent roll attached hereto as Schedule I applicable Selling Entity and/or Specified Entity or upon formation of the PropCo Acquired Companies, the applicable PropCo Acquired Company, enforceable in any tenant estoppel certificate delivered accordance with their terms, subject to Lendergeneral principles of equity and to bankruptcy, there are no uncured defaults thereunder by Borrower insolvency, reorganization, moratorium or other similar laws presently or hereafter in effect affecting the rights of creditors or debtors generally, (ii) neither the applicable Selling Entity nor the applicable Specified Entity nor, to upon formation of the best of Borrower’s knowledgePropCo Acquired Companies, the applicable PropCo Acquired Company nor any other party thereunder counterparty under any Lease is in material default and, to the best Knowledge of Borrower’s knowledgeSeller, there are no conditions that, event has occurred which with notice or the passage of time or the giving of noticetime, or both, would constitute defaults thereunder. Except as set forth in a material default by any tenant estoppel certificate delivered under any Lease, (iii) there are no unpaid monetary obligations owed to Lender, any tenant or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than tenant improvement allowances in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as current term of the Closing Date has been performed as required Tenant Leases (including, without limitation, the MSG Sphere Lease) entered into prior to the date hereof, and has been accepted by (iv) neither the applicable TenantSelling Entity nor the applicable Specified Entity nor, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as upon formation of the Closing Date PropCo Acquired Companies, the applicable PropCo Acquired Company, has already been given or received by (any written notice of the intention of any party to terminate or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of not renew any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender assertion in writing of any default, offset, counterclaim or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect deduction to the payment of rent that remains outstanding and, to the Seller’s Knowledge, no such default, or other sums right of offset, counterclaim or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingdeduction exists.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Las Vegas Sands Corp), Purchase and Sale Agreement (Vici Properties Inc.)
Leases. The Property is not Any Leases in excess of three thousand (3,000) square feet (each such Lease a “Material Lease”) written after the date hereof shall be subject to Lender’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Upon request, Borrower shall furnish Lender 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 contain any leases other than terms which would materially adversely affect Lender’s rights under the Loan Documents. Prior to entering into any Lease or any modification thereof, 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 shall, and shall cause the related Manager to, (i) observe and perform the obligations imposed upon the lessor under the Leases described 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 rent roll attached hereto as Schedule I and made a Leases upon the part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. Borrower is lessee thereunder to be observed or performed in a commercially reasonable manner or terminate or amend such lease, in either case in a manner not to impair materially the owner 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 lessor then only in a commercially reasonable manner to preserve and protect the Individual Property; provided, however, that no such termination or surrender of any Material Lease will be permitted without the written consent of Lender; (or sublessoriii) not collect any of landlord’s interest in the Leases. Except with respect Rents relating to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (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 first month’s Rent under Leases as Lender shall from time to time reasonably require. Notwithstanding anything to the contrary contained herein, Borrower shall not permit Owner to enter into a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, lease of all or as otherwise disclosed to Lender in the Lease or by Borrower, substantially all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each caseIndividual Property without Lender’s prior written consent, which is outstanding. To Borrowerconsent may be withheld in Lender’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law sole and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingabsolute discretion.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (W2007 Grace Acquisition I Inc), Mezzanine Loan Agreement (American Realty Capital Hospitality Trust, Inc.)
Leases. The Property is not subject Borrower has delivered to any leases other than the Agent (i) true copies of the forms of the Leases described in used by the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects Borrower at the Collateral Property as of the Closing Date. Borrower is date hereof and (ii) true, correct and complete copies of the owner Leases and lessor (any amendments or sublessor) other agreements thereto relating to the Collateral Property as of landlord’s interest the date of inclusion of the Collateral Property in the LeasesCollateral. Except An accurate and complete Rent Roll and summary thereof in a form reasonably satisfactory to the Agent as of the date of inclusion of the Collateral Property in the Collateral with respect to all Leases of any portion of the Permitted Encumbrances, no Person Collateral Property has any possessory interest been provided to the Agent. The Leases reflected on such Rent Roll constitute as of the date thereof the sole agreements and understandings relating to leasing or licensing of space at the Collateral Property and in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions Building relating thereto. Each of the Leases. The current Leases are was entered into as the result of arms-length negotiation and has not been modified, changed, altered, assigned, supplemented or amended in full force and effect andany respect, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate a separate written certification delivered to Lender, there are no uncured defaults thereunder by Borrower nor, Agent prior to the best acceptance of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except such Collateral Property as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable TenantCollateral, and no tenant is entitled to any payments, free rent, partial rent, rebate of rent or other payments, creditscredit, allowances reduction or abatements required to be given by Borrower to any Tenant alternate rent, offset or deduction in rent, including, without limitation, lease support payments, lease buy-outs or reduced or altered rent as a result of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge operation of any Lease co-tenancy or of the Rents received thereinsimilar clause, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease separate written certification delivered to Agent prior to the acceptance of such Collateral Property as Collateral. There are no occupancies, rights, privileges or licenses in or to the Collateral Property or portion thereof other than pursuant to the Leases reflected in Rent Rolls previously furnished to the Agent for the Collateral Property. Except as set forth in a separate written certification delivered to Agent prior to the acceptance of such Collateral Property as Collateral, (a) the Leases reflected in the Rent Roll are in full force and effect in accordance with their respective terms, without any payment default or any other material default thereunder, nor are there any defenses, counterclaims, offsets, concessions or rebates available to any tenant estoppel certificate delivered thereunder, and neither the Borrower, the Guarantors nor any of their respective Subsidiaries has given or made any notice of any payment or other material default, or any claim, which remains uncured or unsatisfied, with respect to Lenderany of the Leases, and (b) no Tenant tenant under any Lease has a currently effective right to terminate its Lease as a result of the operation of any co-tenancy or option similar clause. The separate written certification delivered to Agent prior to the acceptance of such Collateral Property as Collateral accurately and completely sets forth all rents payable by and security, if any, deposited by tenants, no tenant having paid more than one month’s rent in advance. All tenant improvements or work to be done for tenants on the Rent Roll, furnished or paid for by the Borrower, the Guarantors or any of their respective Subsidiaries, or credited or allowed to a tenant, for, or in connection with, the Building pursuant to such any Lease has been completed and paid for or otherwise provided for in a manner satisfactory to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or Agent except as set forth in the separate written certification delivered to Agent prior to the acceptance of such Collateral Property as Collateral. No material leasing, brokerage or like commissions, fees or payments are due from the Borrower, the Guarantors or any of their respective Subsidiaries in respect of the Leases or except as set forth in any tenant estoppel certificate the separate written certification delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect Agent prior to the payment acceptance of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise such Collateral Property as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingCollateral.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Ramco Gershenson Properties Trust), Revolving Credit Agreement (Ramco Gershenson Properties Trust)
Leases. The Borrower has delivered a true, correct and complete schedule (the “Rent Roll”) of all Leases affecting the Property is not subject to as of the date hereof, which accurately and completely sets forth in all material respects for each such Lease, the following: the name of the Tenant, the Lease expiration date, the base rent payable, the amount of any leases rent prepaid more than one (1) month in advance, the security deposit held thereunder and any other than the material provisions of such Lease. Upon Lender’s written request, Borrower shall provide true, correct and complete copies of all Leases described in the rent roll attached hereto as Schedule I Rent Roll. Each Lease constitutes the legal, valid and made a part hereof, which rent roll is true, complete and accurate in all respects as binding obligation of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledgeknowledge and belief, there are no conditions thatis enforceable against the Tenant thereof. No default exists, or with the passage passing of time or the giving of noticenotice or both would exist, under any Lease which would, in the aggregate, have a material adverse effect on Borrower or both, would constitute defaults thereunderthe Property. Except as set forth in the Rent Roll, no Tenant under any tenant estoppel certificate delivered to LenderLease has, as of the date hereof, paid rent more than thirty (30) days in advance, and the rents under such Leases have not been waived, released, or as otherwise disclosed to Lender in the Lease discharged or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease)compromised. All security deposits required under such Leases have been fully funded and are held by Borrower in accordance with a separate segregated account or as otherwise required by applicable law. Except as set forth in No Lease provides any tenant estoppel certificate delivered party with the right to Lenderobtain a lien or encumbrance upon the Property superior to the lien of this Deed of Trust. The Property forms no part of any property owned, used or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed claimed by Borrower as a residence or business homestead and is not exempt from forced sale under each Lease as the laws of the Closing Date has been performed as required state in which the Premises is located. Borrower hereby disclaims and has been accepted by the applicable Tenant, renounces each and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required every claim to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise Property as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandinghomestead.
Appears in 2 contracts
Sources: Deed of Trust, Security Agreement and Fixture Filing (Campus Crest Communities, Inc.), Deed of Trust, Security Agreement and Fixture Filing (Campus Crest Communities, Inc.)
Leases. The (a) Upon Lender’s request, Borrower shall furnish Lender with executed copies of all Leases, together with a detailed breakdown of income and cost associated therewith to the extent the same has been prepared by Borrower. All new Leases and renewals or amendments of Leases must be entered into on an arms-length basis with Tenants whose identity and creditworthiness, in Borrower’s good faith judgment, is appropriate for tenancy in property of comparable quality, must provide for rental rates and other economic terms which, in Borrower’s good faith judgment, taken as a whole, are at least equivalent to then-existing market rates, based on the applicable market, and 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 is 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 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 leases other than 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 imposed upon the lessor under the Leases; (ii) enforce, to the extent commercially reasonable, all of the material terms, covenants and conditions contained in the Leases described in on the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. lessee thereunder to be observed or performed, short of termination thereof, except that Borrower is may terminate any Lease following a material default thereunder by the owner and lessor respective Tenant; (or sublessoriii) not collect any of landlordthe 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. Except with respect to the Permitted Encumbrances, no Person has any possessory interest whether held in the Property (cash or any portion thereof) or right to occupy the same except under and pursuant to the provisions other form, shall not be commingled with any other funds of the Leases. The current Leases are in full force and effect Borrower and, except if cash, shall be deposited by Borrower in an Eligible Account or such other account at such commercial or savings bank as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered may be reasonably satisfactory to Lender, there are no uncured defaults thereunder by which account (if any) is hereby pledged to Lender. Borrower norshall, upon Lender’s request, provide Lender with evidence reasonably satisfactory to the best Lender of Borrower’s knowledgecompliance with the foregoing. During the continuance of any Event of Default, any other party thereunder and, subject to the best Encumbered Property Debt Documents, Borrower shall, upon Lender’s request, deposit with Lender in an Eligible Account pledged to Lender an amount equal to the aggregate security deposits of the Tenants (and any interest theretofore earned on such security deposits and actually received by Borrower’s knowledge, there are no conditions that, ) which Borrower had not returned to the applicable Tenants or applied in accordance with the passage terms of time the applicable Lease.
(e) Whenever a Lease at a Mortgage Loan Collateral Property is terminated, whether by buy-out, cancellation, default or otherwise, and Borrower is entitled to any payment, fee or penalty in respect of such termination, Borrower shall promptly cause such payment, fee or penalty to be deposited into an Eligible Account pledged to Mortgage Lender in accordance with the giving Mortgage Loan Agreement. Subject to the terms of noticethe Encumbered Property Debt Documents, whenever a Lease at an Other Property is terminated, whether by buy-out, cancellation, default or bothotherwise, would constitute defaults thereunder. Except as set forth and Borrower or a Property Owner is entitled to any payment, fee or penalty in any tenant estoppel certificate delivered 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, or as otherwise disclosed (i) Lender shall disburse such Termination Fee to Lender Borrower at the written request of Borrower in the Lease or respect of Leasing Commissions and Tenant Improvement costs incurred by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than Borrower in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in replacement Leases at any tenant estoppel certificate delivered to LenderProperties other than Value Add Pool Properties, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all Disposition Asset Properties or any portion Property with an Aggregate Allocated Loan Amount of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Leasezero, in each case provided such Lease is entered into in accordance with the terms of this Agreement.
(Af) 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 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 form 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 any force majeure clause contained this Section 5.7 where such tenant thereunder requests an SNDA, the SNDA to be executed and delivered by Lender shall be in its substantially the form attached hereto as Exhibit G, and such form shall also be attached to Borrower’s standard form of Lease or otherwise as a result approved by Lender. Lender agrees to reasonably negotiate the terms of the COVID-19 pandemic 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 any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingnot 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. The Property is not subject (a) Beneficiary shall approve any Material Lease executed after the date of this Deed of Trust as to any leases other than the Leases described in the rent roll attached hereto as Schedule I form, content and made a part hereof, which rent roll is true, complete and accurate in all respects as financial strength of the Closing Datetenant. Borrower is the owner and lessor At any time, within thirty (or sublessor30) days after Notice from Beneficiary, Grantor will deliver to Beneficiary a written description in such reasonable detail as Beneficiary may request of landlord’s interest in all of the Leases, including, without limitation, the names of all tenants, the terms of all Leases and the Rents payable under all Leases. Except If any Material Lease provides for the giving by the tenant of certificates with respect to the Permitted Encumbrancesstatus of such Lease, no Person has any possessory interest in the Property (or any portion thereof) or Grantor shall exercise its right to occupy require such certificate within ten (10) days after any request by Beneficiary. Following the same except occurrence of an Event of Default and notice from Beneficiary, Grantor will notify all tenants under existing Leases, and agrees to notify all tenants under future Leases, that (i) Grantor collects and receives all Rents pursuant to the provisions license granted to it hereunder, and (ii) upon Notice from Beneficiary that such license has been revoked, the tenants shall pay all unpaid Rent directly to Beneficiary.
(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 no Event of Default has 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 warrant such tenant to make future payments of Rent to Beneficiary without the necessity of further consent by Grantor.
(c) Grantor, at its sole cost and expense, will use its best efforts to enforce or secure, or cause to be enforced or secured, the performance of each and every obligation and undertaking of the Leases. The current respective tenants under any Leases are and will appear in full force and effect anddefend, except as set forth on the rent roll attached hereto as Schedule I at its sole cost and expense, any action or proceeding arising under, or in any tenant estoppel certificate delivered to Lendermanner connected with, there are no uncured defaults thereunder by Borrower norsuch Leases.
(d) Grantor will not assign the whole or any part of the Leases or Rents without the prior written consent of Beneficiary, to and any assignment without such consent shall be null and void.
(e) Grantor will promptly perform all of its obligations under any Leases. Grantor will not, without the best prior written consent of Borrower’s knowledgeBeneficiary, (i) cancel, terminate, accept a surrender of, reduce the payment of rent under any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of noticeMaterial Leases, or both, would constitute defaults thereunder. Except as set forth in accept any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid prepayment of rent for more than one (1) month in advance of its due date 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 the first month’s Rent under a new Lease). All security deposits Resident Agreement is not a prepayment of rent.
(f) If any Leases are held subordinate (either by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lendertheir date, their express terms, or as otherwise disclosed by subsequent agreement of the tenant) to Lender this Deed of Trust, such Leases shall be subject to the condition (and this Deed of Trust so authorizes) that, in the Lease or by Borrower, all work to be performed by Borrower under each Lease as event of any sale of the Closing Date has been performed as required and has been accepted by Property pursuant to the applicable Tenantprovisions of Section 7.2 (Foreclosure), and the Leases shall, at the sole option of Beneficiary or any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) purchaser at such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, either (i) continue in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or full force and effect as set forth in the Leases required advertisement of sale, and the tenant or except as set forth in any tenant estoppel certificate delivered tenants thereunder will, upon request, attorn to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender and acknowledge in writing the purchaser or purchasers at such sale or sales as set forth in the Leases or in any tenant estoppel certificate delivered to Lenderlandlord thereunder, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made upon notice to such effect from Beneficiary, the Trustees or any other bona fide request purchaser or purchasers, terminate within ninety (90) days from the date of sale. As to any Lease, neither Beneficiary nor any purchaser or purchasers at foreclosure shall be bound by any payment of rent for more than one (1) month in advance or otherwise given written notice that it intends to seek by any amendment, waiver, deferral, forbearance amendment or other modification of the Lease made without the prior written consent of Beneficiary or, subsequent to a foreclosure sale, such purchaser or purchasers.
(g) Neither the Trustees nor Beneficiary shall be obligated to perform or discharge any term obligation of Grantor under any Lease. This assignment of the Leases in no manner places on Beneficiary or provision the Trustees any responsibility for (i) the control, care, management or repair of its Leasethe 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 forever hold them harmless from, any and all Claims arising out of, or in connection with, any Leases or any assignment thereof.
(h) Unless otherwise agreed to by Beneficiary, each case Lease shall (Ai) pursuant be at market rents, (ii) be subordinate to the lien of this Deed of Trust, (iii) contain attornment language requiring each tenant to attorn to any force majeure clause contained in its Lease or otherwise as a result subsequent purchaser of the COVID-19 pandemic Property, (iv) not contain non-disturbance language entitling such tenant to remain at the Property after any sale of the Property except as specifically agreed to by Beneficiary in connection with specified Leases, and shall be in all respects acceptable to Beneficiary and its counsel. Approved Material Leases may not be amended, modified or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingterminated without the prior written consent of Beneficiary.
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. The Property is not subject to any leases other than (a) All Major Leases and all renewals of Major Leases executed after the Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except date hereof with respect to the Permitted EncumbrancesReal Property shall (i) be subject to the Approved Annual Budget with respect to such Individual Property, no Person has (ii) provide for economic terms, including rental rates, comparable to existing local market rates for similar properties, (iii) be on commercially reasonable terms, (iv) have a term of not less than three (3) years (unless Lender approves in writing a shorter term), (v) have a term of not more than 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 possessory interest 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 Property course of negotiations with the applicable Tenant), (ix) not be to an Affiliate of any Borrower Entity or any portion thereofMortgagor, and (x) or not contain any option to purchase, any right of first refusal to purchase, any right to occupy terminate (except in the same except 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 the provisions a unilateral right of the LeasesTenant thereunder not requiring the consent of any Borrower Entity). The current Leases Lender, at each Borrower Entity’s sole cost and expense, shall execute and deliver its standard form of subordination, non-disturbance and attornment agreement to Tenants under any future Major Lease approved by Lender upon request, with such commercially reasonable changes as may be requested by such Tenants and which are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered reasonably acceptable to Lender.
(b) Borrower (i) shall, there are no uncured defaults thereunder by and shall cause each Borrower norSubsidiary to, to observe and perform the best of Borrower’s knowledgeobligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) shall, any other party thereunder andand shall cause each Borrower Subsidiary to, to enforce the best of Borrower’s knowledgeterms, there are no covenants and conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender contained in the Leases upon the part of the Tenants thereunder to be observed or performed in 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 or by Borrowerwithout Lender’s prior approval; (iii) shall not, no Rent has been paid and shall cause each Borrower Subsidiary not to, collect any of the Rents more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Leasesecurity deposits). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant; (iv) shall not, and shall cause each Borrower Subsidiary not to, execute any payments, free rent, partial rent, rebate assignment of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrowerlessor’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth interest in the Leases or the Rents (except as set forth in any tenant estoppel certificate delivered to Lendercontemplated by the Loan Documents); and (v) shall not, no Tenant under and shall cause each Borrower Subsidiary not to, alter, modify or change any Lease has so as to change the amount of or payment date for rent, change the expiration date, grant any right or option for additional space in or term, reduce the Improvementsobligations of the Tenant or increase the obligations of the lessor. Except as disclosed Borrower shall, and shall 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 in writing or as set forth in of all written notices of default which any Borrower Entity shall receive under the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingLeases.
Appears in 2 contracts
Sources: Loan Agreement (IMH Financial Corp), Loan Agreement (IMH Financial Corp)
Leases. The Property is (a) Notwithstanding anything to the contrary herein, Mortgagor shall not subject enter into any Lease without Mortgagee’s prior written consent, and shall furnish to any leases other than the Leases described in the rent roll attached hereto as Schedule I and made Mortgagee, upon execution, a part hereof, which rent roll is true, complete and accurate in all respects as fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the Closing Date. Borrower is consent of Mortgagee and with any information requested by Mortgagee regarding the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults proposed Tenant thereunder. Except as set forth in Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any tenant estoppel certificate delivered to Lender, rents or as otherwise disclosed to Lender in other payments due thereunder; not permit the Lease prepayment of any rents or by Borrower, no Rent has been paid other payments due for more than one (1) month in advance 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 due obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (other than 9.5%) in connection with excess of the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except one month LIBOR Rate (as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender and defined in the Lease or by BorrowerBond Lease).
(e) For purposes of this Mortgage, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by following terms shall have the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstanding.following meanings:
Appears in 1 contract
Leases. The All leases related to the Property is not subject (the “Leases”) shall be prorated as of the Closing Date (hereinafter defined), and all security deposits for such Leases, as applicable, shall be tendered by the Seller to any leases other than the Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects Purchaser as of the Closing Date. Borrower is From the owner and lessor (Effective Date through the Closing Date, the Seller shall not enter into any new leases without Purchaser’s prior written consent, which consent shall not be unreasonably withheld, conditioned or sublessor) of landlord’s interest in delayed. From the Leases. Except with respect to Effective Date through the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month year anniversary of the Effective Date, the Purchaser shall not enter into any new lease, submit or consider any proposals for a new lease on the 3rd floor of the building on the Property that is approximately 20,000 sq. ft., without Seller’s prior written consent, but nothing contained herein shall restrict the Buyer from entering into any new lease agreements to any existing tenants of the building on the Property for the third floor available space. On the Closing Date, the Seller and Purchaser shall enter into an Assignment and Assumption of Leases Agreement in advance form and substance of Exhibit “D” which is attached hereto and incorporated herein by reference in which the Seller shall assign all of its due date (rights and obligations under Leases to the Purchaser, and the Purchaser shall assume all rights and obligations under the Leases from the Seller, and each of the Seller and Purchaser shall provide cross-indemnification to each other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease effective as of the Closing Date has been performed as required and has been accepted by Date. Except for such contracts related to the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant Property that are terminable as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior saleDate, transfer or assignment, hypothecation or pledge of any Lease or the Purchaser shall assume all contracts related to the Property as of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingClosing Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Peoples Financial Services Corp.)
Leases. During the pendency of this Restated Agreement, Seller agrees to consult with Buyer and to keep Buyer apprised on a regular basis regarding the leasing activity at such Seller’s Property (and to cause its property manager and leasing agent to do the same) so that Buyer can provide input on a real-time basis as such leasing activity occurs. The foregoing undertaking will include, without limitation, providing Buyer with advance drafts of term sheets and other agreements relating to any leasing activity (including, without limitation, a summary of all proposed tenant inducement costs and leasing commissions being requested or proposed in connection with any such leasing activity) before sharing the same with any tenant or prospective tenant so that Buyer can be actively apprised of leasing activity at each Property as it unfolds, and taking Buyer’s input into account in good faith in carrying out that leasing activity. Seller shall not enter into or consent to any Lease or Lease termination, amendment, modification, expansion, renewal, or lease assignment or sublease for any part of any Property or premises therein, without the prior written approval of Buyer, which approval (i) shall not be unreasonably withheld or delayed prior to the Investigation Period Expiration Date, and (ii) thereafter may be granted or withheld in Buyer’s sole discretion and shall extend to applying any tenant security deposits to tenant obligations under any Lease, accepting any tendered termination of any Lease, or removing any tenant, or waiving any tenant default under any Lease or enforcing any other material rights and remedies as landlord under any Lease, provided that Buyer consent is not subject required for Seller to enforce such other material rights and remedies as landlord under any leases other than Lease that are necessary on an emergency basis to protect the Leases described in the rent roll attached hereto Property from imminent physical damage or any natural person from imminent injury, as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects long as Seller promptly notifies Buyer of the emergency situation and the enforcement actions taken by Seller. Buyer shall either approve or disapprove any proposed Lease termination, amendment, modification, expansion, renewal, or lease assignment or sublease for any part of any Property or premises therein submitted to Buyer for approval within five (5) business days of receipt of the same, together with tenant financial information and detail on any tenant improvement, leasing commission or other leasing costs to be incurred in connection therewith. Buyer’s failure to expressly approve or disapprove of any such proposed Lease termination, amendment, modification, expansion, renewal, or lease assignment or sublease for any part of any Property or premises therein within said five (5) business day period shall conclusively constitute Buyer’s approval of same prior to the Investigation Period Expiration Date and thereafter shall constitute rejection of the proposed action. Seller shall deliver to Buyer, promptly after receipt by Seller, a copy of all current written default and other material notices to and from tenants during the term of this Restated Agreement. Buyer shall, at Close of Escrow assume the obligation to pay and shall pay all Lease commissions, tenant improvement costs and other costs and expenses arising, or that shall have arisen, from or in connection with any Lease modification, amendment or lease assignment entered into with Buyer’s consent between the Original Effective Date and the Close of Escrow in accordance with this Section 7.3 and which first become due following the Close of Escrow, such obligation to survive the Close of Escrow. Notwithstanding the foregoing, Buyer’s prior written approval shall not be required for (i) Seller’s application of tenant security deposits to the extent permitted under the applicable Lease in connection with (x) a tenant default in its obligation to pay rent first occurring after the Original Effective Date and prior to Closing Date. Borrower and (y) the expiration of the term of the applicable lease in accordance with the terms thereof, provided tenant is not in default under such lease and (ii) the owner and lessor (exercise by tenant of any extension, renewal, expansion or sublessor) of landlord’s interest contraction right in accordance with the Leases. Except applicable lease to the extent Seller does not have an approval or consent right with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingsame.
Appears in 1 contract
Sources: Purchase and Sale Agreement (CIM Commercial Trust Corp)
Leases. The (a) 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 and Property is Available Cash under the Mortgage Loan Documents and the rights of First Mez Lender in respect of the Rents and Property Available Cash under the First Mez Loan Documents, at any time that (i) payments are not being made to the Central Account or the Collection Account, or (ii) following repayment of the Mortgage Loan, then Lender shall have the immediate right to notify all tenants and other third parties to make payments directly to the Lockbox Account in the manner and consistent with Section 5.01 of the Mortgage. 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 First Mez Lender under the First Mez 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 any leases other than the Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions terms of the Leases. The current Leases are 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 and, except in the full amount of such deposits unless replaced by cash deposits as set forth on the rent roll attached hereto as Schedule I or herein-above described and shall in all respects comply with any tenant estoppel certificate delivered applicable Legal Requirements and otherwise be satisfactory to Lender. Borrower shall, there are no uncured defaults thereunder by Borrower norupon request, provide Lender with evidence satisfactory to the best Lender of Borrower’s knowledge's, any other party thereunder and, to the best of First Mez Borrower’s knowledge, there are no conditions that, 's and Owner's compliance with the passage foregoing.
(c) Borrower (i) shall cause Owner to observe and perform all of time its material obligations under the Leases pursuant to applicable Legal Requirements and shall not do or permit to be done anything to impair the giving value of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered the Leases; (ii) shall cause Owner to Lender, or as otherwise disclosed promptly send copies to Lender of all notices of material default which Owner shall receive under the Leases; (iii) shall, consistent with the requirements of the Mortgage, enforce all of the terms, covenants and conditions contained in the Lease Leases to be observed or by Borrower, no Rent has been paid performed; (iv) shall not permit Owner to collect any of the Rents under the Leases more than one (1) month in advance of its due date (other than except that Owner may collect in connection with the first month’s Rent under a new Lease). All advance such security deposits as are held permitted pursuant to applicable Legal Requirements and are commercially reasonable in the prevailing market); (v) shall not permit Owner to cancel or terminate any of the Leases or accept a surrender thereof in any manner inconsistent with commercially reasonable standards exercised by Borrower Approved Managers; (vi) shall not permit Owner to alter, modify or change the terms of any guaranty of any Major Space Lease or cancel or terminate any such guaranty; (vii) shall cause Owner, in accordance with applicable lawthe Approved Manager Standard, to make all reasonable efforts to 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. Except as set forth in In all instances that Owner is required to obtain the consent of Mortgage Lender prior to entering into any tenant estoppel certificate delivered Lease, Lease amendment, modification or termination, Borrower shall cause Owner to obtain Lender's consent to such proposed Lease, Lease amendment, modification or as otherwise disclosed termination prior to permitting or causing Owner to submit the proposed Lease, Lease amendment, modification or termination to Mortgage Lender. Borrower shall, and shall cause First Mez Borrower and Owner to, promptly send copies to Lender in of all notices of material default which either First Mez Borrower or Owner shall receive under the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingLeases.
Appears in 1 contract
Sources: Loan and Security Agreement (CNL Hotels & Resorts, Inc.)
Leases. The Property is not subject to any leases other than the Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as As of the Closing Date. date that any Delayed Advance is made by Lender, Borrower has delivered to Lender true and complete copies of all Leases pursuant to which any Borrower is the owner lessor at any of the Properties, including all modifications and lessor (or sublessor) of landlordamendments thereto, which are in Borrower’s interest in the Leasespossession. Except with respect to the Permitted Encumbrancesfor Borrower or affiliates of Borrower occupying all or any part of any Property, no Person person has any possessory interest in any of the Property (or any portion thereof) Properties or right to occupy the same except under and pursuant to the provisions of the LeasesLeases or Permitted Encumbrances. The current Leases Rent Roll is accurate and complete in all material respects as of the date the first Delayed Advance is made, and the applicable Borrower that owns the Property covered by each Lease on the Rent Roll is the lessor under such Lease as of the date the first Delayed Advance is made. Except as indicated on the Rent Roll or Exception Report, no security deposits are being held by Borrower (including bonds or letters of credit being held in full force lieu of cash security deposits) and effect andno Tenant or other party has any option, right of first refusal or similar preferential right to purchase all or any portion of any Property. Subject to the provisions of Section 4.7(a) and except as set forth in the Exception Report, upon foreclosure on any Property, with respect to each Lease at such Property either (i) Lender shall automatically succeed to the rent roll attached hereto as Schedule I rights and obligations of the landlord under such Leases (ii) or such Leases may be terminated in accordance with any tenant estoppel certificate delivered early termination provisions within such Lease. Lender agrees, at Borrower’s sole cost and expense, to Lenderprovide a subordination, there attornment and non-disturbance agreement in form and substance reasonably acceptable to Lender if expressly required pursuant to any Lease. No material amounts are no uncured defaults thereunder payable by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Tenant under a Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with common area maintenance and other routine reconciliations) and no Tenant has the first month’s Rent under a new right to require Borrower to perform or finance any Material Alterations or improvements to the space covered by its Lease). All security deposits are held by Borrower Notwithstanding any provision contained in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered this Agreement to the contrary, Leases may contain (and the same shall be expressly permitted hereunder without notice to or the consent of Lender, except to the extent required pursuant to Section 4.7(b)) the rights of tenants to receive reimbursement, contribution or as otherwise disclosed to Lender in the Lease allowance by landlord for tenant improvements or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent concessions or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received thereinabatements, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or case as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingException Report.
Appears in 1 contract
Sources: Loan Agreement (Sears Holdings Corp)
Leases. The Mortgaged Property is not subject to any leases Leases demising any portion of the Mortgaged Property other than the Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Existing Leases. Except with respect to the Permitted Encumbrances, no No Person has any possessory interest in the Mortgaged Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the LeasesExisting Leases and the Ground Lease (with respect to the Ground Lease Parcel) or other Permitted Encumbrances. The current Each of Borrower and Leasehold Holder is in compliance in all material respects with its obligations under each of the Existing Leases are in full force and effect andthe Ground Lease, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there applicable. There are no uncured material defaults thereunder under the Permitted Encumbrances by Borrower noror Leasehold Holder, or to the best Knowledge of Borrower’s knowledge, the Loan Parties any other party thereunder andPerson, and to the best Knowledge of Borrower’s knowledge, the Loan Parties there are no conditions that, with the passage of time or the giving of notice, or both, would constitute material defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance All construction and other obligations of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work material nature to be performed by the Borrower or Leasehold Holder under each the Ground Lease as and the Permitted Encumbrances either have been satisfied or are reasonably capable of being satisfied without undue expense in accordance with the provisions of the Closing Date has been performed as required and has been accepted Ground Lease or the subject Permitted Encumbrance. Any payments by the applicable TenantBorrower or Leasehold Holder due to the other parties to the Ground Lease or Permitted Encumbrances for tenant improvements, and any payments, free rent, partial rent, rebate of rent infrastructure or other payments, credits, allowances or abatements required land development have been made to be given by Borrower the extent then required. No Person party to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior saleApproved Lease, transfer or assignment, hypothecation or pledge of any Ground Lease or of the Rents received therein, in each case, which any Permitted Encumbrance is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant entitled to any force majeure clause contained in its Lease material offsets, abatements or otherwise as a result of deductions against the COVID-19 pandemic or any Emergency Law Rent payable thereunder from and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingafter the Effective Date.
Appears in 1 contract
Leases. The Property is (a) Borrower shall not subject to enter into or amend any leases other than the Leases described in the rent roll attached hereto as Schedule I Lease without Lender's prior written consent, and made a part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered shall furnish to Lender, there are no uncured defaults thereunder upon execution, a complete and fully executed copy of each Lease. Borrower shall provide Lender with a copy of each proposed Lease requiring the consent of Lender and with any information requested by Borrower nor, to Lender regarding the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults proposed Tenant thereunder. Except as set forth in any tenant estoppel certificate delivered Lender may declare each Lease to be prior or subordinate to this Mortgage, at Lender's option.
(b) Borrower shall, or as otherwise disclosed to Lender in the Lease or by Borrowerat its cost and expense, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work 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 thirty (30) days in advance; and not permit any Tenant to assign its Lease or sublet the premises covered by its Lease, unless required to do so by the terms thereof and then only if such assignment does not work to relieve the Tenant of any liability for performance of its obligations thereunder.
(c) If any Tenant shall default under its Lease, Borrower shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of Lender.
(d) If Borrower fails to perform any obligations of Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or if Lender becomes aware of or is notified by any Tenant of a failure on the part of Borrower to so perform, Lender may, but shall not be obligated to, without waiving or releasing Borrower from any obligation in this Agreement or any of the Rents received thereinother Loan Documents, in each caseremedy such failure, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered and Borrower agrees to Lender, or as otherwise disclosed to repay upon demand all sums incurred by Lender in remedying any such failure, together with interest thereon from the Lease or by Borrower, sublet all or any portion of date incurred at the premises demised thereby, no such Tenant holds its leased premises under assignment. Except Default Rate (as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth defined in the Leases or except as set forth in any tenant estoppel certificate delivered to LenderNote).
(e) For purposes of this Mortgage, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in following terms shall have the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstanding.following meanings:
Appears in 1 contract
Leases. The Property Manufacturer authorizes Affiliated to operate a lease program as provided in this Agreement, pursuant to which Affiliated will offer to prospective customers of Manufacturer, lease agreements ("Leases") containing the Manufacturer's name and logo. It is not subject agreed that, although Manufacturer's name and logo will appear on the Leases, Affiliated will be identified as the Lessor on all documents executed pursuant to any leases this Agreement and that Manufacturer shall have no ownership rights in or to the Leases, related documents or Goods. At the time Affiliated enters into a lease with the customer, Manufacturer and Affiliated will execute appropriate sale documentation, wherein Manufacturer will transfer clear title to the Goods and provide its limited warranty to Affiliated. In exchange, Affiliated will pay Manufacturer in full for the Goods transferred. Manufacturer further agrees that all payments from Lessees made under the Leases shall be the property of Affiliated. Manufacturer further agrees that Affiliated shall have the first right of refusal on all lease proposals wherein a prospective Lessee requests a lease arrangement while this Agreement is in effect, provided, however, Affiliated agrees that if the prospective Lessee has a preference of leasing the Goods from a company other than Affiliated, then in that case, the Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Dateproposed Lessee will be allowed to use his/her preferred leasing company. Borrower is the owner and lessor (or sublessor) of landlord’s interest in Affiliated shall be responsible for executing the Leases. Except with respect , billing and collecting payments from Lessees and taking any action including legal action necessary to enforce the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions terms of the Leases. The current Leases are For purposes of this Agreement, "Goods" means the personal property purchased by Affiliated hereunder, together with any accessories, attachments, parts and repairs now or hereafter incorporated in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered affixed to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than used in connection with such Goods. and includes Goods substituted for the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingoriginal Goods leased.
Appears in 1 contract
Sources: General Private Label Leasing Agreement (New Image Industries Inc)
Leases. The Property is not subject to any leases other than Borrower shall observe and perform all the ------ obligations imposed upon the lessor under the Leases described and shall not do or permit to be done anything to impair the value of the Leases or any guaranty of any Lease as a security for the Obligations. Borrower shall, in the rent roll attached hereto as Schedule I and made a part hereofordinary course of its business, which rent roll is true, complete and accurate in enforce all respects as of the Closing Dateterms, covenants, and conditions contained in the Leases upon the part of the Tenants thereunder to be observed or performed. Borrower is the owner and lessor (shall hold, or sublessor) of landlord’s interest in the Leases. Except cause Manager to hold, all security deposits with respect to the Permitted EncumbrancesLeases in a segregated account and otherwise in conformity with Legal Requirements. Borrower (i) shall not alter, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of noticemodify, or both, would constitute defaults thereunder. Except as set forth in change the terms of any tenant estoppel certificate delivered to Lease without the prior consent of Lender, or as otherwise disclosed to Lender in the cancel or terminate any Lease or by Borrower, no Rent has been paid more than one (1) month in advance accept a surrender thereof or approve or consent to the cancellation or termination of its due date (other than in connection any guaranty with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lenderrespect thereto, or as otherwise disclosed to Lender in the Lease convey or by Borrower, all work to be performed by Borrower under each Lease as transfer or suffer or permit a conveyance or transfer of the Closing Date has been performed as required and has been accepted premises demised by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of any interest therein so as to effect a merger of the Rents received thereinestates and rights of, in each caseor termination or diminution of the obligations of lessee thereunder, which is outstanding. To Borrower’s knowledge(ii) shall not consent to, no Tenant listed on Schedule I has assigned its Lease reject, approve or except as set forth in disapprove any action or inaction requested by any tenant estoppel certificate delivered to Lenderunder any Lease, including, without limitation any assignment of or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant subletting under any Lease has (provided, however, that Lender's consent to a right subletting or option pursuant to assignment shall not be required if such Lease subletting or otherwise to purchase all or assignment is in accordance with the terms of such Lease), which consent may be unreasonably withheld by Lender in its discretion, and (iii) shall not pursue any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant remedies under any Lease has or any right or option for additional space in guaranty with respect thereto without the Improvementsprior written consent of Lender. Except as disclosed to Lender in writing or as set forth in Notwithstanding the Leases or in any tenant estoppel certificate delivered to foregoing, Borrower may, without the prior written consent of Lender, no tenant has (i) asserted any defense make minor modifications or otherwise sought amendments, or given notice (whether written or oral) that it intends to seek any relief or concessions give consents, with respect to any Lease so long as such modification, amendment, or consent does not potentially affect the length of the term of such Lease and does not result in the reduction of the tenant's obligations for the payment of rent rent, additional rent, or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for charges payable by the tenant under such Lease, or otherwise given written notice that it intends to seek amend or modify any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Leasesuch Lease relating to exclusivity of use, in each case (A) pursuant to any force majeure clause contained in its Lease co- tenancy rights, or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingkick-out rights.
Appears in 1 contract
Sources: Revolving Loan Agreement (Wells Real Estate Investment Trust Inc)
Leases. The Property is not subject to any leases other than Upon Lender’s request, Borrower shall furnish Lender with executed copies of all Leases entered into after the Leases described in the rent roll attached hereto as Schedule I and made a part date hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, new Leases and renewals or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as amendments of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has must (i) asserted except for any defense Lease with an affiliate of Borrower as Tenant for 5,000 square feet or otherwise sought or given notice (whether written or oral) less for use as management offices, be entered into on an arms-length basis with Tenants that it intends to seek any relief or concessions with respect to the payment are not affiliates of rent or other sums or the performance Borrower and whose identity and creditworthiness is appropriate for tenancy in property of any obligations under its Lease or comparable quality, (ii) made any provide for rental rates and other bona fide request for or economic terms that, taken as a whole, are at least equivalent to then-existing market rates, based on the applicable market, and otherwise given written notice contain terms and conditions that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Leaseare commercially reasonable, in each case as determined by Borrower in the good faith exercise of its reasonable business judgment, (Aiii) pursuant not reasonably be expected to result in a Material Adverse Effect and (iv) be subject and subordinate to the 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 applicable Property by any purchaser at a foreclosure sale. Lender, at the request of Borrower (and at Borrower’s sole cost and expense, provided that any Servicer’s fee in connection therewith shall not exceed $1,500 in each instance) shall enter into a subordination, attornment and non-disturbance agreement on Lender’s then standard form (with such modifications thereto as may be reasonably acceptable to Lender) or on such other form reasonably satisfactory to Lender, with respect to any force majeure clause contained Lease entered into after the Closing Date in its Lease or otherwise as accordance herewith where the Tenant thereunder requires the delivery of a result of the COVID-19 pandemic or any Emergency Law subordination, attornment and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingnon-disturbance agreement.
Appears in 1 contract
Sources: Loan Agreement (Parkway, Inc.)
Leases. The (a) 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 economic terms which, taken as a whole, are in 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 contain terms and conditions that (taken as a whole) are in the good faith judgment of Borrower Commercially Reasonable (in each case, unless Lender consents to such Lease in its reasonable discretion). 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 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 not subject at then existing market rates, taking into account the location 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 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 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. 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 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 have notified the Borrower in writing of its disapproval 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 leases Lease that was executed prior to the date hereof and that contained a form of SNDA, Lender 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 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; (v) not execute any assignment of lessor's interest in the Leases or associated rents other than the Leases described in Mortgage or Assignment of Rents and Leases; and (vi) during the rent roll attached hereto as Schedule I and made a part hereofcontinuance of an Escrow Period, which rent roll is true, complete and accurate in all respects as not cancel or terminate any guarantee of any of the Closing DateMajor Leases without the prior written consent of Lender.
(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 pledged to Lender. Any bond or other instrument which Borrower is the owner and lessor (or sublessor) permitted to hold in lieu of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has cash security deposits under any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are applicable Legal Requirements shall be maintained in full force and effect andunless replaced by cash deposits as described above, except shall (if not prohibited by any Legal Requirements) name Lender as set forth on the rent roll attached hereto as Schedule I payee or in any tenant estoppel certificate delivered 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, there are no uncured defaults thereunder by in all respects, comply with any applicable Legal Requirements. Borrower norshall, upon Lender's request, provide Lender with evidence reasonably satisfactory to Lender of Borrower's compliance with the foregoing. During the continuance of any Event of Default, Borrower shall, upon Lender's request, deposit with Lender in an Eligible Account pledged to and under the sole dominion and control of Lender an amount equal to the best aggregate security deposits of the Tenants (and any interest theretofore earned on such security deposits and actually received by Borrower’s knowledge, any other party thereunder and, ) which Borrower received in cash and had not returned to the best of Borrower’s knowledge, there are no conditions that, with the passage of time applicable Tenants or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower applied in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as terms of the Closing Date has been performed as required applicable Lease, and has been accepted by Lender shall hold such security deposits in a segregated account and apply or return such security deposits and any accrued interest in accordance with the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingLeases.
Appears in 1 contract
Leases. The Property is (a) 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 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 any leases other than the Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions terms of the Leases. The current Leases are 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 and, except in the full amount of such deposits unless replaced by cash deposits as set forth on the rent roll attached hereto as Schedule I or herein-above described and shall in all respects comply with any tenant estoppel certificate delivered applicable Legal Requirements and otherwise be satisfactory to Lender. Borrower shall, there are no uncured defaults thereunder by Borrower norupon request, provide Lender with evidence satisfactory to the best Lender of Borrower’s knowledge’s, any other party thereunder and, to the best of Senior Mezz Borrower’s knowledge, there are no conditions that, and Owner’s compliance with the passage foregoing.
(c) Borrower (i) shall cause Owner to observe and perform all of time its material obligations under the Leases pursuant to applicable Legal Requirements and shall not do or permit to be done anything to impair the giving value of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered the Leases; (ii) shall cause Owner to Lender, or as otherwise disclosed promptly send copies to Lender of all notices of material default which Owner shall receive under the Leases; (iii) shall, consistent with the Approved Manager Standard, enforce all of the terms, covenants and conditions contained in the Lease Leases to be observed or by Borrower, no Rent has been paid performed; (iv) shall not permit Owner to collect any of the Rents under the Leases more than one (1) month in advance (except that Owner may collect in advance such security deposits as are permitted pursuant to applicable Legal Requirements and are commercially reasonable in the prevailing market); (v) shall not permit Owner to cancel or terminate any of its due date (other than the Leases or accept a surrender thereof in connection any manner inconsistent with the first month’s Rent under a new Lease). All security deposits are held by Borrower Approved Manager Standard; (vi) shall not permit Owner to alter, modify or change the terms of any guaranty of any Major Space Lease or cancel or terminate any such guaranty; (vii) shall cause Owner, in accordance with applicable lawthe Approved Manager Standard, to make all reasonable efforts to 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. Except as set forth in In all instances that Owner is required to obtain the consent of Mortgage Lender prior to entering into any tenant estoppel certificate delivered Lease, Lease amendment, modification or termination, Borrower shall cause Owner to obtain Lender’s consent to such proposed Lease, Lease amendment, modification or as otherwise disclosed termination prior to permitting or causing Owner to submit the proposed Lease, Lease amendment, modification or termination to Mortgage Lender. Borrower shall, and shall cause Senior Mezz Borrower and Owner to, promptly send copies to Lender in of all notices of material default which either Senior Mezz Borrower or Owner shall receive under the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingLeases.
Appears in 1 contract
Sources: Loan and Security Agreement (Morgans Hotel Group Co.)
Leases. The (a) 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 renewals or amendments of Leases must (i) be on Borrower’s standard residential lease approved by Lender, (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 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 is 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 leases 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 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 Lender in an envelope marked “URGENT – ▇▇▇▇▇▇’S ATTENTION REQUIRED WITHIN 10 BUSINESS DAYS”, together with (i) a copy of the 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 Lease, other than a Major Lease, following a material default thereunder by the Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as respective Tenant; (iii) not collect any of the Closing Date. Borrower is the owner and lessor rents thereunder more than one month in advance; (or sublessoriv) not execute any assignment of landlordlessor’s interest in the Leases. Except Leases or associated rents other than the assignments of rents and leases under the Mortgages; (v) not cancel or terminate any guarantee of any of the Major Leases (except in accordance with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion terms thereof) or right without the prior written consent of Lender not to occupy the same except under be unreasonably withheld, and pursuant shall be subject to the deemed approval provisions of Section 5.7(b) above; and (vi) not permit any subletting of any space covered by a Major Lease or an assignment of the Leases. The current Leases are in full force and effect andTenant’s rights under a Major Lease, except as set forth on in strict accordance with the rent roll attached hereto as Schedule I terms of such Major Lease. Borrower shall deliver to each new Major Tenant a Tenant Notice upon execution of such ▇▇▇▇▇▇’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 by the applicable Borrower in segregated security deposit accounts; except that security deposits of Tenants at the Riverside Property shall not be required to be held in segregated security deposit accounts unless and until so required by applicable law or in 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 tenant estoppel certificate delivered other payments received from Tenants. Subject to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledgeLegal Requirement, any letter of credit, bond or other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are instrument held by Borrower in accordance with applicable lawlieu of cash security shall name ▇▇▇▇▇▇ as payee or mortgagee thereunder or be fully assignable to Lender. Except as set forth in any tenant estoppel certificate delivered Borrower hereby pledges to Lender, or as otherwise disclosed to Lender in when the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted same are forfeited by the applicable Tenant, each such letter of credit, bond or other instrument as security for the Indebtedness. During the continuance of an Event of Default, Borrower shall, upon ▇▇▇▇▇▇’s request, deposit with Lender in an Eligible Account pledged to Lender an amount equal to the aggregate security deposit of the Tenants (and any paymentsinterest theretofore earned on such security deposits and actually received by Borrower), free rentand any such letters of credit, partial rent, rebate of rent bonds or other payments, credits, allowances instruments that Borrower had not returned to the applicable Tenants or abatements required to be given by Borrower to any Tenant as applied in accordance with the terms of the Closing Date has already been received by applicable Lease (or credited toand 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) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed Borrower shall promptly deliver to Lender in the Lease or by Borrower, sublet all or any portion a copy of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in each written notice from a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Major Lease has a right claiming that Borrower is in default in the performance or option pursuant to such Lease or otherwise to purchase all or observance of any part of the leased premises material terms, covenants or the building of which the leased premises are a part. Except as disclosed conditions thereof to Lender be performed or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingobserved by Borrower.
Appears in 1 contract
Sources: Loan Agreement (Elme Communities)
Leases. The Property Borrower shall: comply with and observe all landlord obligations under all Leases, including landlord’s obligations pertaining to the maintenance and disposition of any tenant security deposits or any other refundable fees; surrender possession of the Mortgaged Property, including all Leases, and all security deposits and prepaid Rents, immediately upon appointment of a receiver or Lender’s entry upon and taking of possession and control of the Mortgaged Property, as applicable; require that all Residential Leases have initial terms of not less than six (6) months and not more than twenty-four (24) months (however, if customary in the applicable market for properties comparable to the Mortgaged Property, Residential Leases with terms of less than six (6) months (but in no case less than one (1) month) may be permitted with Lender’s prior written consent), provided however, Short-Term Rentals (regardless of the duration of the term) shall not be permitted unless otherwise expressly approved by Lender in writing; and promptly provide Lender a copy of any non-Residential Lease at the time such Lease is not executed (subject to Lender’s consent rights for Material Commercial Leases in Section 7.02(b) and subject to Lender’s consent rights with respect to any leases other than Master Lessee or Master Lease Documents provided for herein) and, upon Lender’s written request, promptly provide Lender a copy of any Residential Lease then in effect. Commercial Leases. With respect to Material Commercial Leases, Borrower shall not: enter into any Material Commercial Lease except with the Leases described prior written consent of Lender; or modify the terms of, extend, or terminate any Material Commercial Lease (including any Material Commercial Lease in existence on the rent roll attached hereto as Schedule I Effective Date) without the prior written consent of Lender. With respect to any non-Material Commercial Lease, Borrower shall not: enter into any non-Material Commercial Lease that materially alters the use and made a part hereof, which rent roll is true, complete and accurate type of operation of the premises subject to the Lease in all respects effect as of the Closing Effective Date or reduces the number or size of residential units at the Mortgaged Property; or modify the terms of any non-Material Commercial Lease (including any non-Material Commercial Lease in existence on the Effective Date) in any way that materially alters the use and type of operation of the premises subject to such non-Material Commercial Lease in effect as of the Effective Date, reduces the number or size of residential units at the Mortgaged Property, or results in such non-Material Commercial Lease being deemed a Material Commercial Lease. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with With respect to any Material Commercial Lease or non-Material Commercial Lease, Borrower shall cause the Permitted Encumbrancesapplicable tenant to provide within ten (10) days after a request by Borrower, no Person has any possessory interest in the Property a certificate of estoppel, or if not provided by tenant within such ten (10) day period, Borrower shall provide such certificate of estoppel certifying: that such Material Commercial Lease or any portion thereof) or right to occupy the same except under non-Material Commercial Lease is unmodified and pursuant to the provisions of the Leases. The current Leases are in full force and effect and(or if there have been modifications, except that such Material Commercial Lease or non-Material Commercial Lease is in full force and effect as set forth on modified and stating the rent roll attached hereto as Schedule I modifications); the term of the Lease including any extensions thereto; the dates to which the Rent and any other charges hereunder have been paid by tenant; the amount of any security deposit delivered to Borrower (or in the case of a sublease, Master Lessee) as landlord; whether or not Borrower is in default (or whether any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions thatevent or condition exists which, with the passage of time or the giving of notice, or bothtime, would constitute defaults thereunderan event of default) under such Lease; the address to which notices to tenant should be sent; and any other information as may be reasonably required by Lender. Except as Payment of Rents. Borrower shall: pay to Lender upon demand after an Event of Default has occurred and is continuing, all Master Lease Basic Rent, and after a Master Lease Event of Default, all Rent. cooperate with Lender’s efforts in connection with the assignment of Master Lease Basic Rent set forth in the Security Instrument and the enforcement of the assignment of Rents from Master Lessee pursuant to the Subordination Agreement (DST Master Lease) and the Property Level Assignment of Leases and Rents; and not accept Rent under any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease (whether a Residential Lease or by Borrower, no Rent has been paid non-Residential Lease) for more than two (2) months or one (1) month for the Master Lease in advance advance. Assignment of Rents. Borrower shall not: perform any acts or execute any instrument that would prevent Borrower from exercising its due date (other than in connection with rights under the first month’s Rent assignment of Rents under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lenderthe Property Level Assignment of Leases and Rents, or as otherwise disclosed to Lender from exercising its rights under the assignment of Master Lease Basic Rent granted in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to LenderSecurity Instrument, or as otherwise disclosed to Lender the assignment of Rents in the Lease or by Borrower, sublet all Subordination Agreement (DST Master Lease) or any portion other Loan Document; nor interfere with Lender’s collection of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Master Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law Basic Rent and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingRents.
Appears in 1 contract
Leases. The Property (a) Borrower shall 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 is not subject appropriate for tenancy in a property of comparable quality and nature to the applicable Property, must provide for rental rates and other economic terms which, taken as a whole, are at least equivalent to then-existing market rates, based on the applicable market, and must contain terms and conditions that are commercially reasonable (in each case, unless Lender consents to such Lease in its sole discretion, unless with respect to any leases other 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 reasonably promptly (but in no event later than 10 Business Days following Borrower’s request therefor) execute and deliver a Subordination, Non-Disturbance and Attornment Agreement to the Leases described Tenant of any future Lease, in substantially the rent roll form attached hereto as Schedule I Exhibit C and made with such changes as may be reasonably requested by Tenant from time to time.
(b) All Leases executed after the date hereof which are Major Leases, and all terminations (other than as a part hereofresult of a material default by the Tenant thereunder), which rent roll is truerenewals (other than as required pursuant to any Major Lease) and material amendments of Major Leases (other than as required pursuant to any Major Lease), complete and accurate in all respects as of the Closing Date. Borrower is the owner and lessor (or sublessor) any surrender of landlord’s interest material rights under any Major Lease, shall be subject to the prior written consent of Lender, which consent, in the Leasesabsence of a continuing Event of Default, shall not be unreasonably withheld, delayed or conditioned. Except 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 Permitted Encumbrancesreason therefor, no Person has 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 possessory interest Operating Lease or any amendment thereof.
(c) Borrower shall (i) observe and perform in a commercially reasonable manner all the material obligations imposed upon the lessor under the Leases; (ii) enforce in a commercially reasonable manner all of the material terms, covenants and conditions contained in the Property (or any portion thereof) or right to occupy Leases on the same except under and pursuant to the provisions part of the Leases. The current Leases are in full force and effect andlessee thereunder to be observed or performed, short of termination thereof, except as set forth on the rent roll attached hereto as Schedule I or in that Borrower may terminate any tenant estoppel certificate delivered to Lender, there are no uncured defaults Lease following a material default thereunder by Borrower northe respective Tenant or, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrowercase of Leases which are not Material Leases, no Rent has been paid if such termination would not have a Material Adverse Effect; (iii) not collect any of the rents thereunder more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in the terms of this Agreement); (iv) not execute any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as assignment of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrowerlessor’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth interest in the Leases or except 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 set forth 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 tenant estoppel certificate delivered 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, no Tenant under shall (if not prohibited by any Lease has any right Legal Requirements) name Lender as payee or option for additional space in the Improvements. Except mortgagee thereunder (or be fully assignable to Lender) or may name Borrower as disclosed payee thereunder so long as such bond or other instrument is pledged to Lender as security for the Indebtedness and shall, in writing or as set forth in the Leases or in all respects, comply with any tenant estoppel certificate delivered applicable Legal Requirements and otherwise be reasonably satisfactory to Lender. Borrower shall, no tenant has (i) asserted upon Lender’s request, provide Lender with evidence reasonably satisfactory to Lender of Borrower’s compliance with the foregoing. During the continuance of any defense or otherwise sought or given notice (whether written or oral) that it intends Event of Default, Borrower shall, upon Lender’s request, deposit with Lender in a segregated Eligible Account pledged to seek any relief or concessions with respect Lender an amount equal to the payment aggregate security deposits of rent 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 other sums or applied in accordance with the performance terms of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its the applicable Lease, and Lender shall hold such security deposits in each case (A) pursuant to any force majeure clause contained a segregated account in its Lease or otherwise as a result of accordance with the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingapplicable Lease.
Appears in 1 contract
Sources: Loan Agreement (American Casino & Entertainment Properties LLC)
Leases. The Property is not subject to any leases other than the Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. Borrower Seller is the owner and lessor (or sublessor) of landlord’s interest in landlord or the successor lessor or landlord under the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease Schedule, to Seller's knowledge, there are no other leases or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with occupancy agreements to which Seller is a party affecting the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable lawProperty. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered on the Lease Schedule, to LenderSeller's knowledge, no Tenant under presently effective rent concessions have been given to any Lease tenants and no rent has been paid in advance by any right or option for additional space in tenants respecting a period subsequent to the ImprovementsClosing. Except as may be disclosed on the Lease Schedule, to Seller's knowledge no tenants have asserted in writing any claims, defenses or offsets to rent accruing from and after the date of Closing. To Seller's knowledge, except as disclosed to Lender in writing Purchaser or as set forth in the Leases Lease Schedule, no material default, delinquency or in breach exists on the part of any tenant estoppel certificate tenant. There are no material defaults or breaches on the part of the landlord under any Lease. In the event that any Tenant Estoppel delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions Purchaser with respect to the payment any Lease shall contain any statement of rent fact, information or other sums matter which is inconsistent with the matters stated in Seller's representations in this Section 5.1(c), the Tenant Estoppel shall control and Seller shall have no liability for any claim based upon a breach of representation regarding such statement of fact, information or other matter contained in the performance Tenant Estoppel. Notwithstanding anything to the contrary contained in this Agreement, Seller does not represent or warrant that any particular Lease will be in force or effect at Closing or that the tenants under the Leases will have performed their obligations thereunder, but Landlord will warrant that Landlord has fulfilled its material obligations under the Leases between the Effective Date and Closing. The termination of any Lease prior to Closing by reason of the tenant's default shall not affect the obligations of Purchaser under its Lease this Agreement to complete closing in any manner or (ii) made entitle Purchaser to an abatement of or credit against the Purchase Price or give rise to any other bona fide request for claim on the part of Purchaser. Seller cannot terminate, amend, modify or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result cancel between the expiration of the COVID-19 pandemic Inspection Period and Closing, any lease for the Property, even for default, without the consent of Purchaser, which consent shall not be unreasonably withheld, conditioned or any Emergency Law delayed and shall be deemed approved if not disapproved within five (B5) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingdays after Purchaser's receipt of notice of Seller's intention to terminate.
Appears in 1 contract
Leases. The Without Purchaser’s prior written consent, which consent shall not be unreasonably withheld, (i) Seller shall not, and shall not cause a S2 TIC Subsidiary to, enter into any new leases of space at the Property is or any other occupancy agreements affecting the Property having a term of less than six (6) months or greater than thirteen (13) months; (ii) Seller shall not, and shall cause a S2 TIC Subsidiary not subject to, grant to any leases other than the Leases described in the rent roll attached hereto as Schedule I and made a part hereofTenants any offsets, which rent roll is trueset-offs, complete and accurate in all respects as of the Closing Date. Borrower is the owner and lessor (rebates, concessions or sublessor) of landlord’s interest in the Leases. Except abatements with respect to rent, additional rent or other sums payable under the Permitted Encumbrancesterms of any Lease, no Person has any possessory interest in the Property (which can be claimed or any portion thereof) or right to occupy the same except under and pursuant redeemed by such Tenants subsequent to the provisions of the Leases. The current Leases are in full force and effect andClosing (provided, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered however, Seller may allow a S2 TIC Subsidiary to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than grant new Tenants one (1) month of free rent without having to obtain Purchaser’s prior written consent); (iii) Seller shall not, and shall cause a S2 TIC Subsidiary not to, enter into any new Leases of space at the Property or other occupancy agreements affecting the Property that are not on market rate terms or on a form of Lease other than Seller’s existing form of Lease (except as approved in advance and in writing by Purchaser); (iv) Seller shall not, and shall cause a S2 TIC Subsidiary not to, modify, cancel, extend, renew or otherwise change in any manner any of its due date the terms, covenants or conditions of any of the Leases or other occupancy agreements affecting the Property in a manner inconsistent with the terms hereof; (other than v) Seller shall not, and shall cause a S2 TIC Subsidiary not to, terminate any Leases unless in the ordinary course of business and in connection with a Tenant default under such Lease (existing beyond any applicable notice and cure and/or grace period); and (vi) Seller shall not, and shall cause a S2 TIC Subsidiary not to, enter into any new, or modify, amend or terminate any existing, commercial lease or occupancy agreement affecting the first month’s Rent under a new LeaseProperty (e.g., laundry lease or cell tower lease). All security deposits are held by Borrower in accordance Seller shall provide Purchaser with applicable law. Except as set forth in any tenant estoppel certificate delivered access to Lendertrue, correct and complete copies of all new Leases (and Lease amendments or as otherwise disclosed to Lender in modifications) entered into after the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingEffective Date.
Appears in 1 contract
Sources: Contribution Agreement (Bluerock Homes Trust, Inc.)
Leases. The Property is not Any Leases in excess of three thousand (3,000) square feet (each such Lease a “Material Lease”) written after the date hereof shall be subject to Lender’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Upon request, Borrower or Operating Lessee shall furnish Lender 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 contain any leases other than terms which would materially adversely affect Lender’s rights under the Loan Documents. Prior to entering into any Lease or any modification thereof, 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 or Operating Lessee shall, and shall cause the related Manager to, (i) observe and perform the obligations imposed upon the lessor under the Leases described 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 rent roll attached hereto as Schedule I and made a Leases upon the part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. lessee thereunder to be observed or performed in a commercially reasonable 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 is 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 owner and lessor Individual Property; provided, however, that no such termination or surrender of any Material Lease will be permitted without the written consent of Lender; (or sublessoriii) not collect any of landlord’s interest in the Leases. Except with respect Rents relating to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (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 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 Individual Property (other than the Operating Leases) without Lender’s prior written consent, which consent maybe withheld in Lender’s sole and absolute discretion. Lender’s approval of a Material Lease shall be deemed given by Lender if (I) the first month’s Rent under a new Lease). All security deposits are held by correspondence from Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) requesting such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case approval (A) pursuant to any force majeure clause contained is enclosed in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and an envelope marked “PRIORITY”, (B) other than requestscontains a legend, notices prominently displayed at the top of each page thereof, in bold, all caps and fourteen (14) point or defenses larger font stating that have been withdrawn Borrower or resolved Operating Lessee is requesting Lender’s approval of a Material Lease under Section 4.11 of the Loan Agreement and that Lender’s failure to respond to such request within ten (10) Business Days following its receipt of such request may result in such request being deemed granted, and (C) is accompanied by an a copy of such proposed Material Lease together with an explanation thereof in such reasonable detail as is necessary to allow Lender to adequately and completely evaluate the request, (II) Lender shall fail to respond to such request within ten (10) Business Days following its receipt of such request, (III) Borrower or are otherwise no longer outstandingOperating Lessee shall deliver to Lender a second written request for approval, which request is delivered in the 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 such second request, shall result in such request being deemed granted, and (IV) Lender shall fail to respond to such request in the manner contemplated in clause (III)(B) above within such five (5) Business Day period.
Appears in 1 contract
Leases. The Borrower has delivered a true, correct and complete schedule (the “Rent Roll”) of all Leases affecting the Property is not subject to as of the date hereof, which accurately and completely sets forth in all material respects for each such Lease, the following: the name of the Tenant, the Lease expiration date, the base rent payable, the amount of any leases rent prepaid more than one (1) month in advance, the security deposit held thereunder and any other than the material provisions of such Lease. Upon Lender’s written request, Borrower shall provide true, correct and complete copies of all Leases described in the rent roll attached hereto as Schedule I Rent Roll. Each Lease constitutes the legal, valid and made a part hereof, which rent roll is true, complete and accurate in all respects as binding obligation of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledgeknowledge and belief, there are no conditions thatis enforceable against the Tenant thereof. No default exists, or with the passage passing of time or the giving of noticenotice or both would exist, under any Lease which would, in the aggregate, have a material adverse effect on Borrower or both, would constitute defaults thereunderthe Property. Except as set forth in the Rent Roll, no Tenant under any tenant estoppel certificate delivered to LenderLease has, as of the date hereof, paid rent more than thirty (30) days in advance, and the rents under such Leases have not been waived, released, or as otherwise disclosed to Lender in the Lease discharged or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease)compromised. All security deposits required under such Leases have been fully funded and are held by Borrower in accordance with a separate segregated account or as otherwise required by applicable law. Except as set forth in No Lease provides any tenant estoppel certificate delivered party with the right to Lenderobtain a lien or encumbrance upon the Property superior to the lien of this Security Deed. The Property forms no part of any property owned, used or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed claimed by Borrower as a residence or business homestead and is not exempt from forced sale under each Lease as the laws of the Closing Date has been performed as required state in which the Premises is located. Borrower hereby disclaims and has been accepted by the applicable Tenant, renounces each and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required every claim to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise Property as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandinghomestead.
Appears in 1 contract
Sources: Deed to Secure Debt, Security Agreement and Fixture Filing (Campus Crest Communities, Inc.)
Leases. The Property is (a) Notwithstanding anything to the contrary herein, Mortgagor shall not subject enter into any Lease without Mortgagee’s prior written consent, and shall furnish to any leases other than the Leases described in the rent roll attached hereto as Schedule I and made Mortgagee, upon execution, a part hereof, which rent roll is true, complete and accurate in all respects as fully executed copy of each Lease. Mortgagor shall provide Mortgagee with a copy of each proposed Lease requiring the Closing Date. Borrower is consent of Mortgagee and with any information requested by Mortgagee regarding the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults proposed Tenant thereunder. Except as set forth in Mortgagee may declare each Lease to be prior or subordinate to this Mortgage, at Mortgagee’s option.
(b) Mortgagor shall, at its cost and expense, perform each obligation to be performed by the landlord under each Lease; not borrow against, pledge or further assign any tenant estoppel certificate delivered to Lender, rents or as otherwise disclosed to Lender in other payments due thereunder; not permit the Lease prepayment of any rents or by Borrower, no Rent has been paid other payments due for more than one (1) month in advance 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 due obligations thereunder.
(c) If any Tenant shall default under its Lease, Mortgagor shall, in the ordinary course of business, exercise sound business judgment with respect to such default, but may not discount, compromise, forgive or waive claims or discharge the Tenant from its obligations under the Lease or terminate or accept a surrender of the Lease without the prior written consent of Mortgagee.
(d) If Mortgagor fails to perform any obligations of Mortgagor under any Lease or if Mortgagee becomes aware of or is notified by any Tenant of a failure on the part of Mortgagor to so perform, Mortgagee may, but shall not be obligated to, without waiving or releasing Mortgagor from any Obligation, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure, together with interest thereon from the date incurred at an annual rate equal to nine and one half percent (other than 9.5%) in connection with excess of the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except one month LIBOR Rate (as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender and defined in the Lease or by BorrowerLoan Agreement).
(e) For purposes of this Mortgage, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by following terms shall have the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstanding.following meanings:
Appears in 1 contract
Leases. The Property is (a) Except as could not subject reasonably be expected to have a Material Adverse Effect, each of the Subsidiary Borrowers has paid all such payments required to be made by it in respect of leasehold Real Estate Assets, and no landlord Lien (other than as constituting a Permitted Lien) has been filed, and to any leases Borrower’s knowledge no claim is being asserted, with respect to any such payments (in each case, other than any claim the Leases described amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on Borrower’s books).
(b) Except as could not reasonably be expected to have a Material Adverse Effect, to Borrower’s best knowledge, each of the rent roll attached hereto as leases listed on Schedule I 4.22(a) is in full force and made a part hereofeffect and is legal, which rent roll is truevalid, complete binding and accurate enforceable in all respects accordance with its terms as of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions As of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to LenderClosing Date, there are no uncured defaults thereunder by Borrower noris not under any such lease any existing breach, to the best default, event of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions default or event or condition that, with the passage or without notice or lapse of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth a breach, default or an event of default by a Subsidiary Borrower, or, to Borrower’s best knowledge, by any other party to such lease that, in any tenant estoppel certificate delivered such case, could reasonably be expected to Lender, or as otherwise disclosed to Lender result in the Lease commencement of proceedings or by Borrower, no Rent has been paid more than one (1) month in advance of its due date actions to terminate such lease (other than any event or condition that is the subject of a good faith contest by appropriate proceedings and with respect to which reserves in connection conformity with the first monthGAAP have been provided on Borrower’s Rent under books or that would not result in a new LeaseMaterial Adverse Effect). All security deposits are held by Borrower in accordance with applicable law. .
(c) Except as set forth in any tenant estoppel certificate delivered could not reasonably be expected to Lenderhave a Material Adverse Effect, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable TenantDate, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower no party to any Tenant material lease has given any Subsidiary Borrower notice of or made a material claim with respect to any breach or default that has not now been cured (other than with respect to any event or condition that is the subject of a good faith contest by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on Borrower’s books).
(d) Except as could not reasonably be expected to have a Material Adverse Effect, with respect to those leases that, as of the Closing Date has already been received Date, were assigned or subleased to a Subsidiary Borrower by (or credited to) such Tenant. There has been no prior salea third party, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant consents to such Lease assignments or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that sublease have been withdrawn or resolved or are otherwise no longer outstandingobtained.
Appears in 1 contract
Leases. (a) Borrower and Maryland Owner have heretofore delivered to Lender true and complete copies of all Leases and any and all amendments or modifications thereof. Except as otherwise expressly disclosed on the Rent Roll or the Tenant estoppel certificates delivered to Lender in connection with the closing of the Loan, to Borrower’s Knowledge, Borrower (other than Maryland Individual Borrower), Maryland Owner or their respective predecessors have complied with and performed all of its or their material construction, improvement and alteration obligations with respect to the Properties required as of the date hereof and any other obligations under the Leases that are required as of the date hereof have either been complied with or the failure to comply with the same does not and would not reasonably be expected to have a Material Adverse Effect.
(b) The Property is Properties are not subject to any leases Leases other than the Leases described in the rent roll attached hereto certified and delivered to Lender as Schedule I of the Closing Date (the “Rent Roll”) and made other than any sublease or license granted by any Tenant (or sub-tenant) under a part hereof, which rent roll Lease. The Rent Roll is true, complete and accurate correct in all material respects as of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leasesdate set forth therein. Except with respect to as otherwise set forth on the Permitted EncumbrancesRent Roll, no Person has any possessory interest in the any Individual Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the LeasesLeases or any sublease or license granted by any Tenant (or sub-tenant) under a Lease. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered and to LenderBorrower’s Knowledge, there are no uncured defaults that would reasonably be expected to have a Material Adverse Effect thereunder by Borrower noreither party (other than as expressly disclosed on the Rent Roll, Schedule 16.10 hereof or the Tenant estoppel certificates delivered to Lender in connection with the best closing of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, Loan) and there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered that would reasonably be expected to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date have a Material Adverse Effect thereunder (other than as expressly disclosed on the Rent Roll, Schedule 16.10 or the Tenant estoppel certificates delivered to Lender in connection with the first month’s Rent under a new Leaseclosing of the Loan). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no No Tenant under any Lease has a an unexpired right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building property of which the leased premises are a part. Except , other than as expressly disclosed to Lender on the Rent Roll or as set forth in the Leases or except as set forth in any tenant Tenant estoppel certificate certificates delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in connection with the Leases or in any tenant estoppel certificate closing of the Loan. Borrower and Maryland Owner have delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect Lender prior to the payment date of rent or other sums or this Agreement a true, correct and complete list of all security deposits and the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendmentamounts thereof, waiver, deferral, forbearance or other modification of any term or provision of its Lease, currently in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingBorrower’s and/or Maryland Owner’s possession.
Appears in 1 contract
Sources: Loan and Security Agreement (Urban Edge Properties)
Leases. The Property is Except as hereinafter provided, Seller shall not subject cancel, modify or extend (except pursuant to existing renewal options in favor of Tenants) any leases other than Lease or enter into any new Lease, without Buyer's prior written consent in each instance. During the Leases described in Study Period, Buyer agrees that it shall not unreasonably withhold its consent to a new Lease, provided that the rent roll attached proposed new Lease satisfies the leasing criteria set forth on Schedule 9 annexed hereto as Schedule I and made a part hereof. After the Study Period has expired, Seller shall not enter into any new Lease without the prior written consent of Buyer, which rent roll consent may be withheld in Buyer's sole and absolute discretion. Notwithstanding the foregoing, Seller may, without Buyer's consent, terminate any Lease under which the Tenant has defaulted beyond the applicable notice and grace period. If Buyer's consent to a new Lease or other transaction is truerequired under this subparagraph 8.2, complete but Buyer does not object thereto in writing within ten (10) days after Buyer has received Seller's request for such consent, then Buyer will be deemed to have given such consent and accurate will confirm such consent in all respects writing upon demand. Any leasing commissions payable in connection with any Lease or extension entered into by Seller in accordance with this subparagraph 8.2, and the cost of any improvements required to be made by the landlord in the space to which such Lease or extension relates, shall be apportioned at Closing between Seller and Buyer according to the relative portions of the initial term of such Lease or extension that fall before and after the Closing. If, in any instance described in the preceding sentence, Seller, as of the Closing Date, shall not have theretofore paid the portion of the leasing commissions or cost of improvements for which Seller is responsible, then Buyer shall be entitled to a credit against the Cash Portion of the Purchase Price in an amount equal to such unpaid portion for which Seller is responsible, and to the extent that the same is so credited, Buyer shall make payment of such portion of such leasing commissions and costs of improvements. Borrower is Within five (5) Business Days after receipt of a request from Buyer given from time to time, Seller shall deliver to Buyer an updated rent roll for the owner Building and lessor (or sublessor) a then current list of landlord’s interest in the Leases. Except rent arrearages with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions all of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingTenants.
Appears in 1 contract
Sources: Agreement of Sale (Equity Residential Properties Trust)
Leases. The Property is not subject (A) 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 Leases other 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 described in with Affiliates of Borrowers.
(B) All Leases entered into after the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects 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 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. Borrower is Borrowers shall not materially change the owner 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 lessor (or sublessor) of landlord’s interest conditions contained in the Leases. Except with respect Leases upon the part of the lessee thereunder to be observed or performed and shall effect a termination or diminution of the obligations of tenants under leases, only in a manner that a prudent owner of a similar property to the Permitted Encumbrances, no Person has any possessory interest 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 executed copies of all Leases hereafter made (to the extent not theretofore provided to Lender). Each Lease shall specifically provide that such Lease is subordinate to the Mortgage; and that in no event shall Lender, 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 portion thereof) or right subsequent owner acquire title to occupy such Individual Property. Each Lease entered into after the same except under and pursuant to date hereof, shall specifically provide that the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered attorns to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work such attornment to be performed by Borrower under each Lease 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 Closing Date has been performed as required and has been accepted tenant shall not be terminated by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingforeclosure.
Appears in 1 contract
Sources: Loan and Security Agreement (Education Realty Trust, Inc.)
Leases. The Property (a) Borrower shall cause Mortgage Borrower (i) to perform the obligations which Mortgage Borrower is not subject required to perform under the Leases; (ii) to enforce the obligations to be performed by the Tenants thereunder; (iii) promptly furnish to Lender any notice of default or termination received by Mortgage Borrower from any Tenant and any notice of default or termination given by Mortgage Borrower to any leases other than the Leases described in the Tenant; (iv) not to collect any rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has under any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid for more than one (1) month in advance of its due date the time when the same shall become due, except for bona fide security deposits not in excess of an amount equal to two (2) months’ rent; (v) not to enter into any ground Lease of any part of the Property; (vi) not to further assign or encumber any Lease or the Gross Revenue (except as contemplated by the Loan Documents); (vii) not to, except with Lender’s prior consent, cancel or accept surrender or termination of any Major Lease; and (viii) not to, except with Lender’s prior consent, modify or amend any Lease (except, solely with respect to Leases that are not Major Leases, 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 applicable Lease). Any action in violation of clause (v), (vi), (vii) or (viii) of this Section 4.1.9(a) shall be void at the election of Lender.
(b) All Major Leases and all renewals, modifications and amendments thereof (other than renewals, modifications and amendments strictly limited to the implementation of options or rights expressly contained in Major Leases and with respect to which Mortgage Borrower has no discretion as to the terms thereof) executed after the date hereof shall be subject to Lender’s prior approval. Borrower shall, or shall cause Mortgage Borrower to, submit to Lender a copy of any proposed Major Lease or any proposed renewal, modification or amendment of any Major Lease, together with all other documents and information reasonably necessary to evaluate such Major Lease, renewal, modification or amendment.
(c) All Leases and all renewals of Leases executed after the date hereof shall (i) provide for economic terms, including rental rates, comparable to existing local market rates for similar properties, (ii) be on commercially reasonable terms, (iii) have a term of not less than three (3) years (unless Lender approves in writing a shorter term), (iv) have a term of not more than fifteen (15) years, including all extensions and renewals (unless Lender approves in writing a longer term), (v) provide that such Lease is subordinate to the Security Instrument and the Assignment of Leases and that the Tenant thereunder will attorn to Lender and any purchaser at a foreclosure sale, (vi) be with Tenants that are creditworthy, (vii) [intentionally omitted], (viii) not be to an Affiliate of Borrower, any Guarantor, Plymouth Industrial 20 Financial or Manager; and (ix) not contain any option to purchase, any right of first option to purchase, any right of first refusal to purchase, any right to terminate (except in the event of destruction or condemnation of all or substantially all of the Property), any requirement for a non-disturbance or recognition agreement, or any other terms which could materially adversely affect Lender’s rights under the Loan Documents.
(d) Borrower shall not, and shall cause Mortgage Borrower not to, 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 Mortgage Borrower).
(e) Borrower agrees to bear and shall pay or reimburse Lender on demand for all costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) incurred by Lender in connection with the first monthreview of any proposed Major Lease, any other matter requiring Lender’s Rent consent under a new Lease). All security deposits are held by Borrower this Section 4.1.9 or execution and delivery of any subordination, non-disturbance and attornment agreement in accordance with applicable law. Except as set forth in any this Section 4.1.9.
(f) Within ten (10) days after Lender’s written request, Borrower shall, or shall cause Mortgage Borrower to, furnish to Lender a statement of all tenant estoppel certificate 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 as otherwise disclosed to Lender any other form, shall be held in the Lease compliance with all applicable Legal Requirements, shall not be commingled with any other funds of Borrower or by BorrowerMortgage Borrower and, all work to if cash, shall be performed deposited by Borrower in a separately designated account under Borrower’s control at KeyBank, National Association in accordance with the Loan Documents and the Mortgage Loan Documents. After the occurrence of an Event of Default, Borrower shall cause each Lease as of the Closing Date has been performed as required and has been accepted Mortgage Borrower to, if permitted by the applicable TenantLegal Requirements and the Mortgage Loan Documents, cause all such security deposits (and any paymentsinterest thereon) to be transferred to a separate Eligible Account at a bank designated by Lender, free rent, partial rent, rebate to be held subject to the terms of rent the Leases. Any bond or other paymentsinstrument which Borrower or Mortgage Borrower is permitted to hold in lieu of cash security deposits under the 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 described above, credits, allowances or abatements required to (ii) shall be given issued by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered an institution reasonably satisfactory to Lender, (iii) shall, if permitted by the applicable Legal Requirements, and subject to the rights of Mortgage Lender under the Mortgage Loan Documents, name Lender as payee or as mortgagee thereunder (or, at Lender’s option, be fully assignable to Lender), and (iv) shall in all respects comply with the applicable Legal Requirements and otherwise disclosed be satisfactory to Lender. Borrower shall, upon request, provide Lender with evidence satisfactory to Lender in of each Mortgage Borrower’s and Borrower’s, as applicable, compliance with the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingforegoing.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Plymouth Industrial REIT Inc.)
Leases. The No Individual Property is not subject to any leases Leases other than the Leases described in the rent roll Rent Roll for such Individual Property attached hereto as Schedule I and made a part hereofExhibit C, which rent roll Rent Roll for each Individual Property is true, accurate and complete and accurate in all material respects as of the Closing Datedate hereof. Borrower is the sole owner and lessor (or sublessor) of landlordthe entire lessor’s interest in the LeasesLeases for each Individual Property. Except with respect to the Permitted Encumbrances, no No Person has any possessory interest in the any Individual Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the LeasesLeases for such Individual Property. The current Leases for each Individual Property are in full force valid and effect andenforceable and have not been altered, except as set forth on the rent roll attached hereto as Schedule I modified or amended in any tenant estoppel certificate manner since copies of same were last delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to . None of the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has Rents (including security deposits) have been paid collected for more than one (1) month in advance of its due date (other than in connection with the first monthadvance. To Borrower’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except actual knowledge and except as set forth may be disclosed in any tenant estoppel certificate certificates delivered to Lender, Lender or as otherwise disclosed to Lender in the Lease or by Borroweron Schedule IV hereto, all work to be performed by Borrower under each Lease as of the Closing Date for each Individual Property has been performed as required and has been accepted by the applicable Tenanttenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has tenant have already been received by (such tenant. The current Leases for each Individual Property are in full force and effect and, to Borrower’s actual knowledge and except as may be disclosed in any tenant estoppel certificates delivered to Lender or credited to) such Tenantas disclosed on Schedule IV hereto, there are no defaults thereunder by either party and there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. There has been no prior sale, transfer or assignment, hypothecation or pledge Transfer of any Lease or of the Rents received thereintherein for any Individual Property, in each caseother than to Borrower and sales, transfers, assignments, hypothecations or pledges which is outstandingmay have been made by the tenants under the Leases. To Borrower’s knowledgeactual knowledge and except as may be disclosed in any tenant estoppel certificates delivered to Lender or as disclosed on Schedule IV hereto, no Tenant tenant listed on Schedule I Exhibit C has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant tenant holds its leased premises under assignmentassignment or sublease, nor does anyone except such tenant and its employees occupy such leased premises. Except as disclosed to Lender or except as may be set forth in a Lease or in any tenant estoppel certificate delivered to Lenderthe Leases, no Tenant tenant under any Lease for any Individual Property has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as may be set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to LenderLeases, no Tenant tenant under any Lease for any Individual Property has any right or option for additional space in the Improvements. Except To Borrower’s actual knowledge no tenant intends to use its leased premises on any Individual Property for any activity which, directly or indirectly, involves the use, generation, treatment, storage, transportation or Release of any Hazardous Materials in violation of Environmental Law. True and correct copies of all Leases for each Individual Property in existence as disclosed of the Closing Date were delivered to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect prior to the payment execution of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingthis Agreement.
Appears in 1 contract
Sources: Loan Agreement (Cole Real Estate Income Strategy (Daily Nav), Inc.)
Leases. The Property is (a) Without the prior written consent of Lender, such consent not subject to be unreasonably withheld, Borrower shall not (i) enter into any leases Lease, (ii) modify, amend or terminate, other than the Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as by reason of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledgetenant's default, any other party thereunder andLease, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in (iii) accept any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the rental payment on a Lease or by Borrower, no Rent has been paid for more than one (1) month in advance of its due date date, or (other than iv) enter into any ground lease of the Property. Notwithstanding the foregoing, any Lease for an apartment unit in connection the Improvements which (1) is on a form approved by Lender (with no material modifications thereto), and (2) satisfies the first month’s Rent applicable Minimum Lease Standards, shall not, nor shall any modification thereof, require Lender's prior approval and is deemed to be an Approved Lease.
(b) Borrower shall not suffer or permit any breach or default to occur in any of Borrower's obligations under any of the Leases which continues beyond any applicable grace or cure period nor suffer or permit the same to terminate by reason of any failure of Borrower to meet any requirement of any Lease including those with respect to any time limitation within which any of Borrower's work is to be done or the space is to be available for occupancy by the tenant. Borrower shall use reasonable efforts to notify Lender promptly in writing in the event a tenant commits a material default under a new Lease. Borrower will not waive any rights under any of the Leases and will enforce the obligations of tenants under the Leases.
(c) Upon Lender's written request after an Event of Default, Borrower shall deliver to Lender all tenant security deposits, including letters of credit (along with documentation transferring to Lender the rights of Borrower to draw on such letters of credit). All , which security deposits are held by Borrower Lender shall hold pursuant to Section 2.5.2, subject in each case to the rights of the applicable tenant to the return of such security deposit in accordance with the applicable lawLease. Except Upon forfeiture of any security deposit, after an Event of Default, the amount thereof shall be, as set forth determined by Lender, deposited into the Property Account or applied to the Indebtedness and prior to an Event of Default, the amount thereof shall be deposited by Borrower into the Property Account.
(d) All lease termination payments or fees shall be deposited by Borrower into the Property Account.
(e) At Lender's request, with respect to any commercial Lease, Borrower shall cause the tenant under any Lease to execute a subordination and attornment agreement in any tenant estoppel certificate delivered form and substance satisfactory to Lender, or as otherwise disclosed to . Borrower shall provide Lender in the Lease or by Borrower, all work to be performed by Borrower under with a copy of a fully executed original of each Lease as of and any modification thereof executed subsequent to the Closing Date has been performed as required and has been accepted by the applicable Tenantpromptly following its execution except for residential leases relating to a multifamily property, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building copies of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingshall be furnished only upon request.
Appears in 1 contract
Sources: Loan and Security Agreement (Stratus Properties Inc)
Leases. (a) Borrower shall not enter into any ground lease of the Property other than the Ground Lease.
(b) The Property is Ground Lease shall not be amended, terminated or assigned without the prior written consent of Administrative Agent (with respect to amendments only, such consent not to be unreasonably withheld, conditioned or delayed). Borrower shall observe and perform all of its covenants and obligations under the Ground Lease, subject to any leases other than applicable grace or cure periods, and shall enforce the Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as terms of the Closing DateGround Lease against the Ground Lease Lessor in a commercially reasonable manner. Borrower is will keep the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are Ground Lease in full force and effect and, except as set forth on during the rent roll attached hereto as Schedule I or in term thereof and will promptly notify Administrative Agent of any tenant estoppel certificate delivered to Lender, there are no uncured defaults default thereunder by the other party. Borrower norshall promptly send to Administrative Agent copies of any and all written notices, communications or demands sent or received by either party under the Ground Lease and any proposed amendments.
(c) Without the prior written consent of Administrative Agent (not to be unreasonably withheld or delayed), Borrower and Borrower’s agents shall not (i) enter into any Lease, (ii) modify, renew or amend any Lease (or any guaranty of a Lease), (iii) terminate or surrender any Lease (or any guaranty of a Lease), (iv) consent to the best sublease or assignment of Borrower’s knowledge, any other party thereunder and, Lease if Borrower has the right to withhold consent to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of noticesame, or both, would constitute defaults thereunder. Except as set forth in (v) accept any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid rental payment more than one (1) month in advance of its due date date. Any new Lease or modification or amendment to any existing Lease at the Ground Lease Property shall satisfy any requirements of the Ground Lease.
(other than d) If requested by Administrative Agent, Borrower shall cause the Tenants under any new Lease to execute and deliver a Subordination, Non-Disturbance and Attornment Agreement in connection Administrative Agent’s form, contemporaneously with the first monthexecution of such Lease, with such commercially reasonable changes as may be reasonably acceptable to Administrative Agent.
(e) Borrower (i) shall observe and perform the obligations imposed upon the lessor under the Leases; (ii) shall use commercially reasonable efforts to enforce the terms, covenants and conditions contained in the Leases upon the part of the lessee thereunder to be observed or performed; (iii) shall not execute any assignment of lessor’s Rent under a new Leaseinterest in the Leases or the Rents (except as contemplated by the Loan 78580509.10 Documents). All ; and (iv) shall hold all security deposits are held by Borrower under all Leases in accordance with applicable lawLaws. Except as set forth Borrower shall notify Administrative Agent promptly in any tenant estoppel certificate delivered to Lenderwriting in the event a Tenant commits a material default under a Lease, or as otherwise disclosed delivers notice that Borrower is in default under such Lease.
(f) Borrower shall deliver, or cause Manager to Lender in the Lease or by Borrowerdeliver, all work to be performed by Borrower under each Lease as Administrative Agent a copy of the Closing Date has been performed as required and has been accepted by the applicable Tenant(i) any Lease, and any paymentsamendment, free rentmodification, partial rentsupplement or termination of any such Lease, rebate of rent or other payments, credits, allowances or abatements required to be given executed by Borrower to any Tenant as of after the Closing Date has already been received by date hereof, (or credited toii) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge a copy of any new Lease marked against the Lease form approved by Administrative Agent, and (iii) any consent to a sublease or assignment of a Lease executed by Borrower after the Rents received thereindate hereof, in each casewithin five (5) Business Days after the execution of such document, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth and in any tenant estoppel certificate delivered event within one (1) Business Day after request from Administrative Agent.
(g) Notwithstanding Administrative Agent’s consent to Lenderthe Ground Lease, such consent shall not have the effect of modifying or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or limiting in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right respect the representations or option pursuant to such Lease or otherwise to purchase all or any part covenants of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as Borrower set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space Loan Documents and in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance event of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result conflict between the provisions of the COVID-19 pandemic or any Emergency Law Ground Lease and (B) other than requeststhe Loan Documents, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingthe Loan Documents shall control as between Borrower, on the one hand, and Administrative Agent and the Lenders on the other.
Appears in 1 contract
Sources: Loan Agreement (IPC Alternative Real Estate Income Trust, Inc.)
Leases. The (a) 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 and Property is Available Cash under the Mortgage Loan Documents, at any time that (i) payments are not being made to the Central Account or the Collection Account, or (ii) following repayment of the Mortgage Loan, then Lender shall have the immediate right to notify all tenants and other third parties to make payments directly to the Lockbox Account in the manner and consistent with Section 5.01 of the Mortgage. 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, 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 any leases other than the Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions terms of the Leases. The current Leases are 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 and, except in the full amount of such deposits unless replaced by cash deposits as set forth on the rent roll attached hereto as Schedule I or herein-above described and shall in all respects comply with any tenant estoppel certificate delivered applicable Legal Requirements and otherwise be satisfactory to Lender. Borrower shall, there are no uncured defaults thereunder by Borrower norupon request, provide Lender with evidence satisfactory to the best Lender of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, 's and Owner's compliance with the passage foregoing.
(c) Borrower (i) shall cause Owner to observe and perform all of time its material obligations under the Leases pursuant to applicable Legal Requirements and shall not do or permit to be done anything to impair the giving value of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered the Leases; (ii) shall cause Owner to Lender, or as otherwise disclosed promptly send copies to Lender of all notices of material default which Owner shall receive under the Leases; (iii) shall, consistent with the requirements of the Mortgage, enforce all of the terms, covenants and conditions contained in the Lease Leases to be observed or by Borrower, no Rent has been paid performed; (iv) shall not permit Owner to collect any of the Rents under the Leases more than one (1) month in advance of its due date (other than except that Owner may collect in connection with the first month’s Rent under a new Lease). All advance such security deposits as are held permitted pursuant to applicable Legal Requirements and are commercially reasonable in the prevailing market); (v) shall not permit Owner to cancel or terminate any of the Leases or accept a surrender thereof in any manner inconsistent with commercially reasonable standards exercised by Borrower Approved Managers; (vi) shall not permit Owner to alter, modify or change the terms of any guaranty of any Major Space Lease or cancel or terminate any such guaranty; (vii) shall cause Owner, in accordance with applicable lawthe Approved Manager Standard, to make all reasonable efforts to 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. Except as set forth in In all instances that Owner is required to obtain the consent of Mortgage Lender prior to entering into any tenant estoppel certificate delivered Lease, Lease amendment, modification or termination, Borrower shall cause Owner to obtain Lender's consent to such proposed Lease, Lease amendment, modification or as otherwise disclosed termination prior to permitting or causing Owner to submit the proposed Lease, Lease amendment, modification or termination to Mortgage Lender. Borrower shall, and shall cause Owner to, promptly send copies to Lender in of all notices of material default which Owner shall receive under the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingLeases.
Appears in 1 contract
Sources: Loan and Security Agreement (CNL Hotels & Resorts, Inc.)
Leases. The Property is not subject to any leases other than Perform in a timely manner all of Seller's obligations under the Leases described Leases, consistent with Seller's ordinary business practices in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects effect as of the Closing Datedate hereof. Borrower is Subsequent to the owner expiration of the Inspection Period, Seller shall not enter into any new Leases without Buyer's prior written consent, which consent shall not be unreasonably withheld or delayed, except for new Leases entered into by Seller in the ordinary course of business for terms not exceeding one year and lessor at rentals at least equal to those currently being charged (and to promptly deliver to Buyer copies of any such new Leases). In addition, Seller shall not modify or terminate any of the Leases without Buyer's prior written consent, which consent shall not be unreasonably withheld or delayed. If Seller desires to enter into a new Lease subsequent to the expiration of the Inspection Period, which Lease requires the consent of Buyer thereto as provided in this Section 15.1 Seller shall deliver written notice to Buyer requesting Buyer's approval thereof and providing therewith the most current draft of the proposed new Lease. Seller also agrees to provide any other information concerning the new Lease and proposed tenant which Buyer reasonably requests. Buyer shall respond to Seller's request for approval of the new Lease transaction within two (2) business days after the delivery of Seller's notice. Unless Buyer shall deliver written notice to Seller disapproving the proposed new Lease within such two (2) day period, Buyer shall be deemed to have approved such Lease transaction for all purposes of this Agreement and Seller may proceed to consummate such new Lease in the form most recently approved (or sublessordeemed approved) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingBuyer.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Boettcher Western Properties Iii LTD)
Leases. The Property is not subject to any leases other than A list of all of the Leases described in (but not subleases entered into by any tenants under the rent roll Leases) affecting the Land or the Improvements on the date of this Agreement is attached hereto to this Agreement as Schedule I and made a part hereof, which rent roll is trueExhibit C, complete and accurate in all respects as copies of which have been made available to Buyer for Buyer’s review. To the Closing Date. Borrower is actual knowledge of Seller, on the owner and lessor date of this Agreement (or sublessori) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in good standing and in full force and effect andin accordance with their respective terms, (ii) except as set forth on Exhibit C, the rent roll attached hereto Leases have not been amended and (iii) except as Schedule I set forth on Exhibit C, there has been no written claim of default under any of the Leases on the part of any party thereto which remains uncured on the date of this Agreement. Seller’s representations under this Subsection shall not be deemed made with respect to the Lease held by Coach, Inc. of a portion of the Property. Seller shall not, without Buyer’s consent, voluntarily terminate or in modify any of the Leases or enter into any new Leases. Notwithstanding the foregoing, if prior to the Closing Date any tenant estoppel certificate delivered under a Lease shall default under its Lease or any Lease is terminated (other than pursuant to Lendera voluntarily termination by Seller), Buyer’s obligation to accept title to the Property and to pay the full Purchase Price shall not be affected, and this Agreement shall remain in full force and effect. Nothing contained in this Agreement shall prevent Seller from commencing any action, including a summary dispossesses proceeding or non-payment proceeding, against any tenant that is in default under its Lease, or from applying any security deposit held by Seller. On the date of this Agreement, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its leasing commissions due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment Leases. Seller shall request from Forest Electric Corp., and if received deliver to Buyer at the Closing, an estoppel letter in accordance with the Lease with Forest Electric Corp. If Forest Electric Corp. fails to deliver same, Seller shall not be in default under this Agreement and this Agreement shall remain in full force and effect in accordance with its terms and, notwithstanding the provisions of rent or other sums or Section 8.3 Sellers’ representations in this Subsection with respect to that Lease shall survive the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingClosing without time limit.
Appears in 1 contract
Sources: Purchase Agreement (Coach Inc)
Leases. The Property is (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 subject to accept prepayments of rent for any leases other than 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 described to be performed by Trustor and shall appear in and defend any action in which the rent roll attached hereto as Schedule I validity of any Lease is at issue and made shall commence and maintain any action or proceeding necessary to establish or maintain the validity of any lease and to enforce the provisions thereof.
(ii) If a part hereof, which rent roll is true, complete and accurate in all respects as leasehold estate constitutes a portion of the Closing DateTrust Estate, Trustor agrees not to amend, change, terminate or modify such leasehold estate or any interest therein without the prior written consent of Beneficiary. Borrower is Consent to one amendment, change, agreement or modification shall not be deemed to be a waiver of the owner right to require consent to other, future or successive amendments, changes, agreements or modifications. Trustor agrees to perform all obligations and lessor (agreements under said leasehold and shall not take any action or sublessor) omit to take any action which would effect or permit the termination of landlord’s interest said leasehold. Trustor agrees to promptly notify Beneficiary in the Leases. Except writing with respect to any default or alleged default by any party thereto and to deliver to Beneficiary copies of all notices, demands, complaints or other communications received or given by Trustor with respect to any such default or alleged default. Beneficiary shall have the Permitted Encumbrancesoption to cure any such default and to perform any or all of Trustor's obligations thereunder. All sums expended by Beneficiary in curing any such default shall be secured hereby and shall be immediately due and payable without demand or notice and shall bear interest from date of expenditure at Agreed Rate.
(iii) Subject to the Credit Agreement, no Person has each Lease of any possessory interest portion of the Trust Estate shall be absolutely subordinate to the lien of this Deed of Trust, but shall contain a provision satisfactory to Beneficiary, and in any event, each tenant thereunder, by virtue of executing a Lease covering the Property (Premises or any portion thereof) , hereby agrees, that in the event of the exercise of the private power of sale or right a judicial foreclosure hereunder, such Lease, at the option of the purchaser at such sale, shall not be terminated and the tenant thereunder shall attorn to occupy such purchaser and, if requested to do so, shall enter into a new Lease for the balance of the term of such Lease then remaining upon the same except under terms and pursuant 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 provisions of the Leasestenant thereunder. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, Concurrently with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge execution of any Lease or and all Leases executed after the date hereof, Trustor shall cause the tenants thereunder to execute an attornment agreement in favor of the Rents received therein, Beneficiary in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered form and substance satisfactory to Lender, or as otherwise disclosed Beneficiary and immediately thereafter deliver such agreement to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingBeneficiary.
Appears in 1 contract
Sources: Credit Agreement (Cadiz Inc)
Leases. The Property Each lease that is not to be used in leasing any of the real property owned by Borrower or any Subsidiary shall be subject to any leases other than the Leases described in the rent roll attached hereto as Schedule I and made a part hereofAdministrative Agent's prior written approval, which rent roll is true, complete approval shall not be unreasonably withheld. Each such lease shall have been entered into by Borrower or such Subsidiary in good faith and accurate in all respects as of the Closing Dateat arm's length. Borrower is the owner shall, or shall cause its Subsidiary to, assign to Administrative Agent all of its right, title and lessor (or sublessor) of landlord’s interest in and to all leases and rents and shall execute and deliver to Administrative Agent written assignments thereof in form satisfactory to Administrative Agent. Upon request of Administrative Agent, Borrower shall deliver to Administrative Agent individual estoppel certificates from all tenants under such leases certifying: (a) that the Leases. Except with respect leased premises have been completed to the Permitted Encumbrancessatisfaction of that tenant, no Person has any possessory interest in (b) that the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are lease is in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, and there are no uncured existing defaults thereunder by Borrower nor, to the best knowledge of Borrower’s knowledgethat tenant, any other party thereunder and(c) the date upon which the term of the lease commenced and the date to which rentals have been paid, to the best of Borrower’s knowledge, (d) that there are no conditions that, with setoffs or counterclaims against the passage of time or rent payments and no credits against the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or payments except as set forth in any tenant estoppel certificate delivered the lease, (e) that the lease has not been amended or modified and there are no representations, warranties, understandings or agreements pertaining to Lender, or the subject matter thereof other than as otherwise disclosed to Lender expressly stated in the Lease written lease, and (f) that the tenant has no knowledge of any prior assignment or by Borrower, sublet all or any portion pledge of the premises demised therebylease or of rentals thereunder. For purposes of clarification, no such Tenant holds its leased premises under assignment. Except as disclosed this Section 5.12 shall only apply to Lender real property owned by the Borrower and/or any Subsidiary and does not apply to leases or except as set forth in a Lease or in subleases to any tenant estoppel certificate delivered Subsidiary, nor does it apply to Lender, no Tenant under any Lease has a right or option leases of real property pursuant to such Lease or otherwise to purchase all or which Borrower and/or any part of Subsidiary is the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandinglessee.
Appears in 1 contract
Leases. The Property is not subject to any leases other than Each Borrower covenants that it shall enforce in a commercially reasonable manner all of its rights under the Leases described in the rent roll attached hereto as Schedule I and made a part hereofit shall not take any action, or fail to take any action, which rent roll is true, complete and accurate in all respects as of the Closing Date. would cause a default by a Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has under any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are In the event that any Borrower receives any written request for its consent or approval pursuant to any of the Leases, such Borrower shall promptly deliver a copy of such request (together with any documentation and information supporting such request) to Agent. If such consent or approval involves any Material Lease Modification (as defined in full force and effect andsubsection 6.1.2 below), except as set forth on the rent roll attached hereto as Schedule I then no Borrower shall grant its consent or in approval pursuant to such request unless Agent has also granted its written approval, which approval shall not be unreasonably withheld or delayed. Each Borrower shall promptly deliver to Agent copies of any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder financial statements received by such Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent 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 new Lease)security interest in any such letters of credit. All security deposits are held Leases shall be on forms previously approved by Borrower in accordance with applicable lawAgent. Except as set forth in Borrowers shall not be authorized to enter into any tenant estoppel certificate delivered ground lease of any Property without Agent's prior written approval. If Agent consents to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or the renewal of the Rents received thereinany existing Lease, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its then such Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender shall either be in the Lease form approved by Agent under Section 3.7 above or by Borrowersubstantially similar to the form of lease attached hereto as Exhibit 6.1.5(b), sublet all or any portion and at Agent's request, Borrowers shall cause the tenant thereunder to execute a subordination and attornment agreement in form and substance reasonably satisfactory to Agent prior to Borrowers' execution of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingrenewal.
Appears in 1 contract
Leases. The Property is not subject Any Rents which constitute Advance Rents Reserve Deposits shall be deposited into the Advance Rents Reserve Sub-Account to any leases other than the Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower be applied in accordance with the Cash Management Agreement. The Borrowers, at Lender’s request, shall furnish Lender with executed copies of all Leases hereafter made. Each new Lease, other than (x) the addition of new sites pursuant to existing master Leases, (y) new Leases in the form of existing Leases with the same tenants, or (z) Governmental Leases, shall specifically provide that such Lease (i) is subordinate to the Deeds of Trust, provided that Lender agrees not to disturb the applicable law. Except Tenant’s possession for so long as set forth Tenant is not in any default under the terms of the applicable lease (as evidenced by an agreement substantially in the form of Exhibit E-1; (ii) that the tenant estoppel certificate delivered attorns to Lender; (iii) that the attornment of the tenant shall not be terminated by foreclosure; and (iv) that in no event shall Lender, as holder of the Deeds of Trust or as otherwise disclosed 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 in or any subsequent owner acquires title to the Lease or by Borrower, all work to be performed by Borrower under each Lease as of Site. On the Closing Date has been performed and at such other times as shall be required and has been accepted by applicable law (including upon replacement of the Manager) or upon the request of a Tenant, Lender shall execute a power of attorney (in the form of Exhibit F) enabling Manager (on behalf of Lender) to execute an agreement (an “SNDA”) providing that Lender agrees not to disturb the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant tenant’s possession for so long as tenant is not in default under the terms of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior saleapplicable lease, transfer or assignment, hypothecation or pledge of any Lease or substantially in one of the Rents received forms described in Exhibit E-2 (with the appropriate information completed therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in ) without any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect material changes being made to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingform.
Appears in 1 contract
Sources: Loan and Security Agreement (Sba Communications Corp)
Leases. The (a) Prior to the Closing, Sellers shall use commercially reasonable efforts (but without any obligation to pay any money or other consideration) to obtain and deliver to Buyers (i) estoppel certificates from each counterparty under the Real Property is not subject to any leases other than the Leases described and Third Party Leases, substantially in the rent roll attached hereto as Schedule I form required by the applicable lease or, if no form is provided for, in a form mutually agreeable to the Parties (each, a “Lease Estoppel”), and made a part hereof(ii) to the extent reasonably requested by Buyers, which rent roll is true, complete Subordination and accurate in all respects as of the Closing Date. Borrower is the owner Non-Disturbance Agreements from third party landlords and lessor (or sublessor) of landlord’s interest in the Leases. Except their lenders with respect to the Permitted EncumbrancesLeased Real Properties, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant a form mutually agreeable to the provisions Parties (each, an “SNDA”). Lease Estoppels shall be dated no more than thirty (30) days prior to the Closing Date; provided, however, that Sellers shall be obligated for any amounts required by the terms of the Leases. The current Real Property Leases are in full force to be paid by the signatories to the Lease Estoppels and effect and, except as SNDAs.
(b) Notwithstanding anything to the contrary set forth on herein, if, despite the rent roll attached hereto as Schedule I or in 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 delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent applicable Real Property Lease or other sums or Third Party Lease, in a form reasonably acceptable to Buyers (each, a “Seller Estoppel”) and, in the performance case of any obligations 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 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 its the applicable Real Property Lease or 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 of no further force or effect for any purpose under this Agreement with respect to such Leased Real Property.
(c) Subject to Section 5.13(b), (i) 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) made no Seller Estoppel will be acceptable if it reflects any other bona fide request for fact or otherwise given 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 foregoing clauses (i) and (ii), 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 Buyers. To the extent 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, Sellers shall use commercially reasonable efforts to commence curing such matter, if and to the extent curable, not later than delivery to Buyers of the applicable Lease Estoppel or Seller Estoppel, 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 default prior to the Closing as provided in the preceding sentence, and/or in the event Buyers disapprove of any Objectionable Disclosure disclosed by any Lease Estoppel or Seller Estoppel, then, at Buyers’ option, exercisable by written notice that it intends to seek any amendmentSellers prior to the consummation of the Closing, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) the Purchase Price will be reduced by an amount reasonably necessary to cure the applicable breach or default, such amount to be mutually agreed upon in good faith by Buyers and Sellers, or (B) Buyers may elect to proceed to the Closing without a reduction of the 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 force majeure clause contained 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 uncured breach or default, plus (2) the Assigned Drop Value assigned to the applicable Station Property on Schedule 2.7 in its the event the applicable Real Property Lease or otherwise Third Party Lease is terminated following the Closing as a result of the COVID-19 pandemic such uncured breach or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingdefault.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sunoco LP)
Leases. The Property is Seller shall not subject enter into or consent to any leases 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 (other than consents to assignment or subleasing which in Seller’s reasonable judgment are required to be granted under the Leases described in the rent roll attached hereto as Schedule I and made a part hereofapplicable Lease, provided that Seller shall provide Buyer with copies of all such consents), which rent roll is true, complete and accurate approval may be withheld in all respects as of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlordBuyer’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereundersole discretion. Except as set forth required in Seller’s reasonable judgment to prevent injury to natural persons or damage to property, Seller shall not exercise any default remedies under the Leases including commencing any legal action against a tenant estoppel certificate delivered or applying any security deposits or draw upon letters of credit, as applicable, without the prior written consent of Buyer, which may be withheld in Buyer’s sole discretion, provided that Seller may draw down a letter of credit any amount of rent in default past any applicable notice and cure period under the applicable Lease without the prior written consent of Buyer provided that Seller shall provide Buyer with notice of any such draw down at least 2 Business Days prior to Lenderthe expiration of the Review Period. Buyer shall either approve or disapprove any proposed Lease modification, amendment, termination, expansion, renewal, assignment or sublease or exercise of remedies submitted to Buyer for approval within five (5) business days of receipt. Buyer’s failure to expressly approve or disapprove of any such proposed Lease modification, amendment, termination, expansion, renewal, assignment or sublease or exercise of remedies within said five (5) business day period shall conclusively constitute Buyer’s approval of same. Seller shall deliver to Buyer, promptly after receipt by Seller, a copy of all current written default and other material notices to and from tenants during the term of this Agreement. Buyer shall, at Close of Escrow, assume the obligation to pay and shall pay all Lease commissions, tenant improvement costs and other costs and expenses arising, or as otherwise disclosed to Lender in the Lease that shall have arisen, from or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with any Lease modification, amendment or lease assignment entered into with Buyer’s consent between the first month’s Rent under a new Lease). All security deposits are held by Borrower date hereof and the Close of Escrow in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered this Section 7.3 and which first become due following the Close of Escrow, such obligation to Lender, or as otherwise disclosed to Lender in survive the Lease or by Borrower, all work to be performed by Borrower under each Lease as Close of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingEscrow.
Appears in 1 contract
Sources: Purchase and Sale Agreement (CIM Commercial Trust Corp)
Leases. The Property is not subject to any leases other than the Any Major Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to any Individual Property executed after the Permitted Encumbrances, no Person has any possessory interest Closing Date (other than Separate Leases (as defined in the Property (or any portion thereofMaster Lease) or right to occupy the same except under and Master Tenant and/or its Affiliates that may be required from time to time pursuant to the provisions 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 all proposed Leases shall provide for rental rates required by the terms of the Leases. The current respective Leases are in full force and effect 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 sale by 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 as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are that no uncured defaults thereunder termination by Borrower nor, 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 best Individual Property; (iii) shall not collect any of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid rents more than one (1) month in advance of its due date (other than security deposits); (iv) shall not execute any other 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 the terms of the Leases in a manner inconsistent with the provisions of the Loan Documents; (vi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the first month’s Rent under a new Lease). All security deposits are held by Leases as Lender shall from time to time reasonably require; and (vii) to the extent Borrower in accordance with applicable law. Except as set forth in has an approval right over the same, Borrower shall not approve any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as sublease of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised therebyProperty by Master Tenant without the prior written consent of Lender not to be unreasonably withheld, no such Tenant holds its leased premises under assignmentconditioned or delayed. Except as disclosed Notwithstanding anything to Lender or except as set forth in the contrary contained herein, (x) Borrower shall not enter into a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase of all or substantially all of any part Individual Property without Lender’s prior written consent, (y) all new Leases and all amendments, modifications, extensions, and renewals of the leased premises or the building existing Leases with Tenants that are Affiliates of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect Borrower shall be subject to the payment prior written consent of rent or other sums or the performance of any obligations under its Lease or Lender and (iiz) made any other bona fide request for or otherwise given written notice that it intends to seek Borrower shall not enter into any amendment, waivermodification, deferralrestatement or termination of, forbearance or other modification of accept the surrender of, any term Major Lease without the Lender’s prior written consent, such consent to be granted or provision of its Lease, withheld in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingLender’s sole discretion.
Appears in 1 contract
Leases. The Property is not subject to any leases other than the Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. Borrower is the owner and lessor (or sublessora) of landlord’s interest in the Leases. Except with respect to any specific requirements of an Existing Lease, all Leases and all renewals of Leases executed after the Permitted Encumbrancesdate hereof shall (i) provide for rental rates comparable to existing local market rates for similar properties, no Person has any possessory interest in (ii) be on commercially reasonable terms, (iii) provide that such Lease is subordinate to the Mortgage and that, upon the foreclosure of the Mortgage, sale by power of sale thereunder or deed‑in‑lieu of foreclosure, the Tenant will attorn to the transferee of the Property, (iv) be prepared on the standard form of lease for the Property used by Borrower, which shall have been approved by Agent in its reasonable discretion, with such modifications as are consistent with the market and that result from arms‑length negotiations that Borrower conducts in good faith and (v) not contain any terms which would materially adversely affect Agent’s and/or Lenders’ rights under the Loan Documents.
(b) All Major Leases and all renewals, amendments, extensions, restatements, expansions and modifications thereof (“Major Lease Modification”) executed after the date hereof shall, prior to execution, be subject to Agent’s reasonable approval. Borrower shall not permit or consent to the assignment of any portion thereof) or Major Lease without Agent’s prior reasonable consent unless and except to the extent the right to occupy assign without Borrower’s consent is already reserved to the same except under Tenant thereunder in any Major Lease in existence on the date of this Agreement and there has been no material amendment to such Major Lease during the term of this Loan which was entered into without the reasonable consent of Agent as required pursuant to the provisions hereof.
(c) Borrower (i) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Leases. The current Leases are lessee thereunder to be observed or performed in full force and effect anda commercially reasonable manner; provided, except as set forth on however, Borrower shall not terminate or accept a surrender of any Lease without Agent’s prior approval not to be unreasonably withheld, conditioned or delayed; (iii) shall not collect any of the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid Rents more than one (1) month in advance of its due date (other than in connection with security deposits and the first month’s Rent under a new Leaserent upon signing). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in ; and (iv) shall not execute any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as USActive 32926859.13 -57- assignment of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrowerlessor’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth interest in the Leases or the Rents (except as set forth contemplated by the Loan Documents). Notwithstanding the foregoing, in the case of a bona fide breach or default by a Tenant of a material obligation under its Lease which breach has continued beyond the expiration of any tenant estoppel certificate delivered applicable notice, grace or cure period, Borrower may pursue termination of such Lease through all of Borrower’s legal rights and remedies as lessor thereunder.
(d) Upon request Borrower shall furnish Agent with executed copies of all Leases in Borrower’s possession, certified as true and complete by Borrower within five (5) Business Days of such request.
(e) Upon request, to Lenderthe extent permitted by applicable law, no Borrower will cause any and all Tenant under security deposits, whether Cash or Cash equivalents or letters of credit to be maintained with or held in an account maintained and controlled by Agent.
(f) Borrower shall not consent to any sublease or assignment of any Lease has at the Property or permit Master Tenant to enter into any right sublease or option assignment of the Master Lease at the Property, other than the Permitted Sublease, without Agent’s consent in its reasonable discretion. Agent’s consent shall be deemed to have been given for additional space in any sublease or assignment that satisfies the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has following requirements (i) asserted be prepared on the form of sublease delivered to Agent after the Closing Date and approved by Agent, in Agent’s reasonable discretion, (ii) be on terms similar to the Master Lease as confirmed by the Appraisal obtained by Agent prior to the Closing Date, including, without limitation, with respect to subordination and attornment provisions, and which terms do not cause any defense material adverse change to the valuation of the Property and (iii) not in any way affect the validity, enforceability or otherwise sought or scope of the Lease Guaranty.
(g) To the extent that the Deemed Approval Requirements are fully satisfied in connection with any Borrower request for Agent consent under this Section and Agent thereafter fails to respond, Agent’s approval shall be deemed given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request matter for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingwhich approval was requested.
Appears in 1 contract
Sources: Loan Agreement (Sothebys)
Leases. The Property is not subject (a) Prior to execution of any leases other than the Leases described of space in the rent roll attached hereto as Schedule I and made a part 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 of space in the Improvements or at the Property shall be on terms consistent with the terms for similar leases in the market area of the Premises, shall provide for free rent roll only if the same is trueconsistent with prevailing market conditions and shall provide for market rents then prevailing in the market area of the Premises. Such Leases shall also provide for security deposits in reasonable amounts consistent with prevailing market conditions. Borrower shall also submit to Lender for Lender’s approval, complete which approval shall not be unreasonably withheld, prior to the execution thereof, any proposed Lease of the Improvements or any portion thereof that differs materially and accurate adversely from the aforementioned form Lease. Borrower shall not execute any Lease for all or a substantial portion of the Property, except for an actual occupancy by the Tenant, lessee or licensee thereunder, and shall at all times promptly and faithfully perform, or cause to be performed, all of the covenants, conditions and agreements contained in all respects as of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except Leases with respect to the Permitted EncumbrancesProperty, no Person has now or hereafter existing, on the part of the landlord, lessor or licensor thereunder to be kept and performed. Borrower shall furnish to Lender, within sixty (60) days after a request by Lender to do so, but in any possessory interest event by January 1 of each year, a current Rent Roll, certified by Borrower as being true and correct, containing the names of all Tenants with respect to the Property, the terms of their respective Leases, the spaces occupied and the rentals or fees payable thereunder and the amount of each Tenant’s security deposit. Upon the request of L▇▇▇▇▇, Borrower shall deliver to Lender 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 Property (landlord, lessor or licensor under any such Lease or allow the Tenant thereunder to withhold payment of rent or cancel or terminate same and shall not further assign any such Lease or any portion thereof) such Rents and Profits. Borrower, at no cost or right expense to occupy Lender, shall enforce, short of termination, the same except performance and observance of each and every condition and covenant of each of the parties under such Leases and pursuant to the provisions Borrower shall not anticipate, discount, release, waive, compromise or otherwise discharge any rent payable under any of the Leases. The current Leases are 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 full force and effect andthe sole discretion of Lender) to cure any default, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, event which with the passage of time or the giving of notice, or both, would following any notice and cure period shall constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or a default by Borrower, no Rent has been paid 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, with respect only to Leases affecting less than the lesser of (x) five percent (5%) of the gross leaseable area of the Improvements and (y) 2,500 square feet and having a term of three (3) years or less, in the normal course of business in a manner which is consistent with sound and customary leasing and management practices for similar properties in the community in which the Property is located. Borrower shall not permit the prepayment of any rents under any of the Leases for more than one (1) month prior to the due date thereof.
(b) Each Lease executed after the date hereof affecting any of the Premises or the Improvements must provide, 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 Borrower upon any foreclosure of this Deed of Trust or deed in lieu of foreclosure. Each such Lease shall also provide that, upon request of said successor-in-interest, the Tenant shall execute and deliver an instrument or instruments confirming its attornment as provided for in this Section; provided, however, that neither L▇▇▇▇▇ nor any successor-in-interest shall be bound by any payment of rent for more than one (1) month in advance advance, or any amendment or modification of its 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 date (other than in connection with or whether before or after the first month’s Rent under a new Lease). All security deposits are held by institution of legal proceedings to foreclose this Deed of Trust, forthwith, upon demand of Lender, Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered 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 otherwise disclosed 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 the Lease or by Borrower, all work to be performed its sole discretion and with like effect as if such Leases had been made by Borrower under each Lease as the owner in fee simple of the Closing Date has been performed as required Property free and has been accepted clear of any conditions or limitations established by the applicable Tenant, this Deed of Trust. The power and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be authority hereby given and granted by Borrower to any Tenant Lender shall be deemed to be coupled with an interest, shall not be revocable by Borrower so long as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised therebyDebt is outstanding, no such Tenant holds its leased premises under assignmentshall 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. Except as disclosed 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 except as set forth any part thereof, or from any other act or omission of Lender in a Lease managing the Property, nor shall Lender be obligated to perform or in discharge any tenant estoppel certificate delivered to Lenderobligation, no Tenant duty or liability under any Lease has a right covering the Property or option pursuant to 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 otherwise 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 purchase 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 leased premises Debt. Nothing in this Section shall impose on Lender any duty, obligation or responsibility for the building control, care, management or repair of which the leased premises are a part. Except as disclosed 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 as set forth 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 Leases management, upkeep, repair or except as set forth in control of the Property. Borrower hereby assents to, ratifies and confirms any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to and all actions of Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations Property taken under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingthis Section.
Appears in 1 contract
Sources: Deed of Trust, Security Agreement and Fixture Filing (NNN Apartment REIT, Inc.)
Leases. The Property is (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 subject to accept prepayments of rent for any leases other than 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 described to be performed by Trustor and shall appear in and defend any action in which the rent roll attached hereto as Schedule I validity of any Lease is at issue and made commence and maintain any action or proceeding necessary to establish or maintain the validity of any lease and to enforce the provisions thereof.
(ii) If a part hereof, which rent roll is true, complete and accurate in all respects as leasehold estate constitutes a portion of the Closing DateTrust Estate, then, except as otherwise permitted under the Credit Agreement, Trustor agrees not to amend, change, terminate or modify such leasehold estate or any interest therein without the prior written consent of the Lenders. Borrower is Consent to one amendment, change, agreement or modification shall not be deemed to be a waiver of the owner right to require consent to other, future or successive amendments, changes, agreements or modifications. Trustor agrees to perform all obligations and lessor (agreements under said leasehold and shall not take any action or sublessor) omit to take any action which would affect or permit the termination of landlord’s interest said leasehold. Trustor agrees to promptly notify Beneficiary’ in the Leases. Except writing with respect to any default or alleged default by any party thereto and to deliver to Beneficiary copies of all notices, demands, complaints or other communications received or given by Trustor with respect to any such default or alleged default. Beneficiary shall have the Permitted Encumbrancesoption to cure any such default and to perform any or all of Trustor’s obligations thereunder. All sums expended by Beneficiary in curing any such default shall be secured hereby and shall be immediately due and payable without demand or notice and shall bear interest from date of expenditure at Agreed Rate.
(iii) Subject to the Credit Agreement and except as otherwise permitted under the Credit Agreement, no Person has each Lease of any possessory interest portion of the Trust Estate shall be absolutely subordinate to the lien of this Deed of Trust, but shall contain a provision satisfactory to the Lenders, and in any event, each tenant thereunder, by virtue of executing a Lease covering the Property (Premises or any portion thereof) , hereby agrees, that in the event of the exercise of the private power of sale or right a judicial foreclosure hereunder, such Lease, at the option of the purchaser at such sale, shall not be terminated and the tenant thereunder shall attorn to occupy such purchaser and, if requested to do so, shall enter into a new Lease for the balance of the term of such Lease then remaining upon the same except under terms and pursuant 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 execution of any and all Leases executed after the 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 provisions of the Leases. The current Leases are in full force Lenders and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered immediately thereafter deliver such agreement to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingBeneficiary.
Appears in 1 contract
Sources: Credit Agreement (Cadiz Inc)
Leases. Except as set forth on Exhibit M (the “Lease Exhibit”), or as otherwise permitted by Section 9.2.2(b), there are no leases or other use or occupancy agreements affecting any Individual Property. True, correct and complete copies of all of the Leases of the Property and any amendments thereto have been delivered to Buyer, except for de minimis omissions. The list of leases and other information set forth on the Lease Exhibit for each Seller’s Individual Property is not subject to any leases other than the Leases described in the rent roll attached hereto as Schedule I true and made a part hereof, which rent roll is true, complete and accurate correct in all material respects and it is agreed that Seller shall have the right to update the Lease Exhibit as of the Closing DateDate to add new lease documents entered into after the Effective Date and to delete lease documents that are no longer in effect on such date. Borrower is Seller has not granted any option or right of first refusal or first opportunity to any party to acquire the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted EncumbrancesProperty, no Person has any possessory interest in the Individual Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in the Leases (including any Lease entered into in conformance with the provisions of Section 9.2.2(b)), Seller has not granted any option to any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease)Lease to expand its leased premises or to renew its Lease with respect to any Seller’s Individual Property. All security deposits are held work for tenant alterations required pursuant to the terms of the Leases and other related work or materials contracted for by Borrower Seller have been (or will be) substantially completed, in accordance with applicable lawall material respects, on or prior to Closing, and all such work and materials have been (or will be) fully paid for on or prior to Closing by Seller except as set forth on Schedule 5.6. Except as set forth on Schedule 5.6, all contributions to tenants for tenant improvements or other tenant concessions, if any, have been (or will be) paid in full on or prior to Closing by Seller. Seller has not sent to nor received from any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower any written notices of default under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each casetenant’s Lease, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingdefault remains uncured.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Washington Real Estate Investment Trust)
Leases. The (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 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 is 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 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 leases other than 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 Borrower or the applicable Senior Mezzanine Borrower in connection with its evaluation of the creditworthiness of the proposed Tenant, and shall be deemed approved if Lender shall not have notified Borrower in writing of its disapproval thereof and the reasons for such 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, and shall cause Senior Mezzanine Borrower to (i) observe and perform all the material obligations imposed upon the lessor under the Leases; (ii) enforce, to the extent commercially reasonable, all of the material terms, covenants and conditions contained in the Leases described in on the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. lessee thereunder to be observed or performed, short of termination thereof, except that Senior Mezzanine Borrower is may terminate any Lease following a material default thereunder by the owner and lessor respective Tenant; (or sublessoriii) not collect any of landlordthe 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 be commingled with any other funds of Borrower or Senior Mezzanine Borrower and, if cash, shall be deposited by Senior Mezzanine Borrower in an Eligible Account or such other account at such commercial or savings bank as may be reasonably satisfactory to Senior Mezzanine Lender (or Lender, if Senior Mezzanine Loan is no longer outstanding or Senior Mezzanine Lender is otherwise not requiring Senior Mezzanine Borrower to be in compliance with Section 5.7(d) of the Senior Mezzanine Loan Agreement), which account shall be pledged to Senior Mezzanine Lender (or Lender, if Senior Mezzanine Loan is no longer outstanding or Senior Mezzanine Lender is otherwise not requiring Senior Mezzanine Borrower to be in compliance with Section 5.7(d) of the Senior Mezzanine Loan Agreement). Except Borrower shall, upon Lender’s request, provide Lender with respect 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 Permitted EncumbrancesEncumbered Property Debt Documents and the rights of Senior Mezzanine Lender under the Senior Mezzanine Loan Documents, no Person has 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 possessory interest theretofore earned on such security deposits and actually received by Borrower) which Borrower, Senior Mezzanine Borrower or their respective Affiliates had not returned to the applicable Tenants or applied in accordance with the terms of the applicable Lease.
(e) Whenever a Lease at a Mortgage Loan Collateral Property is terminated, whether by buy-out, cancellation, default or otherwise, and Senior Mezzanine Borrower is entitled to any payment, fee or penalty in respect of such termination, Borrower shall promptly cause such payment, fee or penalty to be deposited into an Eligible Account pledged to Mortgage Lender in accordance with the Mortgage Loan Agreement. Subject to the terms of the Encumbered Property Debt Documents, whenever a Lease at an Other Property is terminated, whether by buy-out, cancellation, default or otherwise, and Senior Mezzanine Borrower or a Property Owner is entitled to any payment, fee or penalty in respect of such termination (a “Termination Fee”), Borrower shall promptly cause such Termination Fee to be deposited into an Eligible Account pledged to Senior Mezzanine Lender (or any portion thereofLender, 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) or right to occupy the same except under and pursuant to the provisions of the LeasesSenior Mezzanine Loan Agreement). The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in At any tenant estoppel certificate delivered time that such Eligible Account is pledged to Lender, there are provided no uncured defaults thereunder 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 nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than Senior Mezzanine Borrower in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in replacement Leases at any tenant estoppel certificate delivered to LenderProperties other than Value Add Pool Properties, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all Disposition Asset Properties or any portion Property with an Aggregate Allocated Loan Amount of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Leasezero, in each case provided such Lease is entered into in accordance with the terms of this Agreement.
(Af) 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 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 form 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 any force majeure clause contained this Section 5.7 where such tenant thereunder requests an SNDA, the SNDA to be executed and delivered by Lender shall be in its substantially the form attached hereto as Exhibit G, and such form shall also be attached to Senior Mezzanine Borrower’s standard form of Lease or otherwise as a result approved by Lender. Lender agrees to reasonably negotiate the terms of the COVID-19 pandemic 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 any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingnot the SNDA is ultimately executed and/or recorded.
Appears in 1 contract
Sources: Junior Mezzanine Loan Agreement (Gramercy Capital Corp)
Leases. The Property Assignor hereby presently, absolutely and unconditionally grants, transfers and assigns to Assignee all right, title and interest of Assignor in and to the Leases including Assignor’s right, power and authority to modify the terms of any such Lease, or extend or terminate any such Lease. It is the intention of Assignor to establish a present, absolute and irrevocable transfer and assignment to Assignee of all of Assignor’s right, title and interest in, to and under the Leases. Assignor and Assignee intend this assignment of the Leases to be immediately effective and to constitute an absolute present assignment and not an assignment for additional security only. For purposes of giving effect to this absolute assignment of the Leases, and for no other purpose, the Leases shall not be deemed to be a part of the Property. However, if this present, absolute and unconditional assignment of the Leases is not subject to any leases other than enforceable by its terms under the laws of the State of Iowa, then the Leases described shall be included as part of the Property and Mortgaged Property and it is the intention of Assignor that in this circumstance this Assignment create and perfect a lien on the rent roll attached hereto as Schedule I and made a part hereofLeases in favor of Assignee, which rent roll is true, complete and accurate in all respects lien shall be effective as of the Closing Datedate of this Assignment. Borrower is the owner Until Assignee gives notice to Assignor of Assignee’s exercise of its rights under this Section, Assignor shall have all rights, power and lessor authority granted to Assignor under any Lease (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (except as otherwise limited by this Section or any portion thereof) or right other provision of this Assignment), including the right, power and authority to occupy modify the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge terms of any Lease or extend or terminate any Lease. Upon the occurrence of an Event of Default, and during the Rents received thereincontinuation thereof, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered the permission given to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option Assignor pursuant to such Lease or otherwise the preceding sentence to purchase exercise all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in rights, power and authority under the Leases or except as set forth in any tenant estoppel certificate delivered to Lendershall automatically terminate. Assignor shall comply with and observe Assignor’s obligations under all Leases, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect including Assignor’s obligations pertaining to the payment maintenance and disposition of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingtenant security deposits.
Appears in 1 contract
Sources: Assignment of Leases and Rents
Leases. The Property Upon Agentthe Required Lenders’s written request, Borrowers shall furnish Agent with copies of all Leases to which any Borrower is not subject to any leases other than a party entered into after the Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Effective Date. Borrower is the owner All new Leases and lessor renewals or amendments of Leases (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, other than Leases with any Affiliates of Borrower which is outstandingshall be subject in all instances to clause (b) below) shall, subject in the case of renewals to the terms and provisions of the applicable existing Lease (including any conditions or requirements with respect to attornment, subordination and attornment), be (i) entered into on arms’ length terms and with tenants that could not reasonably be expected to result in a Material Adverse Effect, (ii) subject and subordinate to the Mortgages and (iii) contain provisions for the agreement by the tenant thereunder to attorn to Agent and any purchaser at a foreclosure sale, such attornment to be self-executing and effective upon acquisition of title to the applicable Property by any purchaser at a foreclosure sale, which agreement by tenant may be conditioned upon Agent entering into a subordination, attornment and non-disturbance agreement mutually acceptable to Agentthe Required Lenders and the applicable tenant. To Borrower’s knowledgeIf expressly required pursuant to a Lease, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to LenderAgent shall enter into a subordination, attornment and non-disturbance agreement mutuallyon the terms required by the Lease, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises if none are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant on customary terms that are reasonably acceptable to any force majeure clause contained in its Lease or otherwise as a result of Agent and the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingapplicable tenantthe Required Lenders.
Appears in 1 contract
Leases. The (a) Upon Lender’s request, Borrower shall furnish Lender with executed copies of all Leases, together with a detailed breakdown of income and cost associated therewith to the extent the same has been prepared by Borrower. All new Leases and renewals or amendments of Leases must be entered into on an arms-length basis with Tenants whose identity and creditworthiness, in Borrower’s good faith judgment, is appropriate for tenancy in property of comparable quality, must provide for rental rates and other economic terms which, in Borrower’s good faith judgment, taken as a whole, are at least equivalent to then-existing market rates, based on the applicable market, and must contain terms and conditions that are commercially reasonable (in each case, unless Lender consents to such Lease in its sole discretion). All new Leases must provide that they are subject and subordinate to any current or future mortgage financing on the applicable Property is 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 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 leases other than 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 imposed upon the lessor under the Leases; (ii) enforce, to the extent commercially reasonable, all of the material terms, covenants and conditions contained in the Leases described in on the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. lessee thereunder to be observed or performed, short of termination thereof, except that Borrower is may terminate any Lease following a material default thereunder by the owner and lessor respective Tenant; (or sublessoriii) not collect any of landlordthe 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 (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 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. Except with respect to the Permitted Encumbrances, no Person has any possessory interest whether held in the Property (cash or any portion thereof) or right to occupy the same except under and pursuant to the provisions other form, shall not be commingled with any other funds of the Leases. The current Leases are in full force and effect Borrower and, except if cash shall be deposited by Borrower in an Eligible Account or such other account at such commercial or savings bank as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered may be reasonably satisfactory to Lender, there are no uncured defaults thereunder by which account (if any) is hereby pledged to Lender. Borrower norshall, upon Lender’s request, provide Lender with evidence reasonably satisfactory to the best Lender of Borrower’s knowledgecompliance with the foregoing. During the continuance of any Event of Default, any other party thereunder andBorrower shall, upon Lender’s request, deposit with Lender in an Eligible Account pledged to Lender an amount equal to the best aggregate security deposits of the Tenants (and any interest theretofore earned on such security deposits and actually received by Borrower’s knowledge, there are no conditions that, ) which Borrower had not returned to the applicable Tenants or applied in accordance with the passage terms of time the applicable Lease.
(e) Whenever a Lease is terminated, whether by buy-out, cancellation, default or the giving otherwise, and Borrower is entitled to any payment, fee or penalty in respect of noticesuch termination (a “Termination Fee”), or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered 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, or as otherwise disclosed (i) Lender shall disburse such Termination Fee to Lender Borrower at the written request of Borrower in the Lease or respect of Leasing Commissions and Tenant Improvement costs incurred by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than Borrower in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance replacement Leases at any Properties, other than any Property with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as an Aggregate Allocated Loan Amount of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Leasezero, in each case provided such Lease is entered into in accordance with the terms of this Agreement.
(Af) 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 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 form 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 any force majeure clause contained this Section 5.7 where such tenant thereunder requests an SNDA, the SNDA to be executed and delivered by Lender shall be in its substantially the form attached hereto as Exhibit G, and such form shall also be attached to Borrower’s standard form of Lease or otherwise as a result approved by Lender. Lender agrees to reasonably negotiate the terms of the COVID-19 pandemic 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 any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingnot the SNDA is ultimately executed and/or recorded.
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Leases. The Property is not subject to any leases other than (a) Borrower shall deliver copies of all Space Leases, and amendments, modifications and renewals thereof entered into after the Leases described in the rent roll attached hereto as Schedule I and made a part date hereof, to Lender. All new Space Leases shall provide for rental rates comparable to then existing local market rates and terms and conditions which rent roll is trueconstitute good and prudent business practice and are consistent with prevailing market terms and conditions, complete and accurate and, except for Space Leases with the Manager not in all respects as excess of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except 4,000 square feet with respect to the Permitted Encumbrancesany Project, no Person shall be arms-length transactions. Borrower has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there and Lender has approved, standard forms of Space Lease for the Projects, which provide that they are subordinate to the Loan and that the lessees thereunder will attorn to Lender.
(b) Borrower shall not enter into a proposed Major Space Lease or a proposed renewal, extension or modification (affecting monetary terms and/or other terms that are material in nature) of an existing Major Space Lease without the prior written consent of Lender which consent shall not, so long as no uncured defaults thereunder Event of Default exists, be unreasonably withheld or delayed (it being agreed and acknowledged by Borrower northat Lender may consider, to the best of in connection with a request for its consent under this subsection (b), inter alia, Borrower’s knowledgeability to pay the anticipated tenant improvement costs and leasing commissions); provided, however, that with respect to any other party thereunder andexisting Major Space Lease, the foregoing shall not be deemed to limit the best right of Borrower’s knowledge, there are no conditions that, with the passage any tenant to extend or renew its lease pursuant to any such right or option in favor of time or the giving of notice, or both, would constitute defaults thereunder. Except as any such tenant expressly set forth in its Lease. Any request by Borrower for Lender’s approval of a proposed Major Space Lease shall be in writing and shall be accompanied by a copy of such proposed Major Space Lease, together with a summary of the material terms thereof (including, but not limited to, the proposed tenant improvement costs and leasing commissions) and a copy of such proposed lease as blacklined to show changes from the Standard Lease Form approved by Lender. Lender shall approve or disapprove each proposed Major Space Lease or proposed renewal, extension or modification of an existing Major Space Lease for which Lender’s approval is required under this Agreement within ten (10) Business Days after the submission by Borrower to Lender of such written request for such approval, after which such proposed Major Space Lease shall be deemed to have been approved by Lender. If requested by Borrower, within five (5) Business Days after request therefor, Lender will grant conditional approval of proposed Major Space Leases or proposed renewals, extensions or modifications of existing Major Space Leases based upon the initial summary of material terms, provided that Lender shall retain the right to disapprove any tenant estoppel certificate delivered such proposed Major Space Lease or proposed renewal, extension or modification of an existing Major Space Lease, if subsequent to any preliminary approval material changes are made to the terms previously approved by Lender, or as otherwise disclosed to additional material terms are added that had not previously been considered and approved by Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with such proposed Major Space Lease or proposed renewal, extension or modification of an existing Major Space Lease or if the first month’s Rent under a new Lease)form of proposed Major Space Lease reflects material revisions to the Standard Lease Form that are not either (y) required to reflect the approved terms and conditions of the proposed Major Space Lease or (z) consistent with changes then being made generally to lease documents in the then current leasing market for comparable space in similar buildings in the locale of the Project in question. All security deposits are held If requested by Borrower in accordance with applicable law. Except as set forth in any respect to a tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or a proposed Major Space Lease, and/or (ii) made any other bona fide request for that is a “national” or otherwise given written notice that it intends “credit” tenant, Lender agrees to seek any amendmententer into its standard form of Subordination, waiverNon-disturbance and Attornment agreement with such tenant, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant with such revisions to any force majeure clause contained in its Lease or otherwise such form as a result of are requested by the COVID-19 pandemic or any Emergency Law proposed tenant and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingreasonably acceptable to Lender.
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Leases. The Leases and any amendments thereto provided by Borrowers to Agent with respect to each Mortgaged Property is not subject are true, correct and complete copies as of the date of inclusion of such Mortgaged Property in the Collateral. An accurate and complete Rent Roll as of the date of inclusion of each Mortgaged Property in the Collateral with respect to all Leases of any leases other than portion of the Mortgaged Property has been provided to the Agent. The Leases previously delivered to Agent as described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects preceding sentence constitute as of the Closing Date. Borrower is date thereof the owner sole agreements relating to leasing or licensing of space at such Mortgaged Property and lessor (or sublessor) of landlord’s interest in the LeasesBuilding relating thereto. Except with respect to As of the Permitted Encumbrancesdate of delivery of such Rent Roll upon inclusion of a Mortgaged Property in the Collateral, no Person has tenant or licensee under any possessory interest in the Property (or Lease is entitled to any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, creditscredit, allowances offset or abatements required to be given by Borrower to any Tenant deduction in rent, including, without limitation, lease support payments or lease buy-outs, except as reflected in such Rent Roll. Except as set forth in Schedule 6.22, the Leases reflected therein are, as of the Closing Date date of inclusion of the applicable Mortgaged Property in the Collateral, (a) in full force and effect in accordance with their respective terms, (b) without any payment default or to the knowledge of Borrowers and Guarantors any other material default thereunder, and to the knowledge of Borrowers and Guarantors there are no defenses, counterclaims, offsets, concessions or rebates available to any tenant or licensee thereunder, and except as reflected in Schedule 6.22, no Borrower has already been received by (given or credited to) such Tenant. There has been no prior salemade, transfer or assignment, hypothecation or pledge any notice of any Lease payment or other material default, or any claim, which remains uncured or unsatisfied, with respect to any of the Rents received thereinLeases, in each case, and to the knowledge of the Borrowers and Guarantors there is no basis for any such claim or notice of material default by tenant or licensee. No property other than the Mortgaged Property which is outstandingthe subject of the applicable Lease is necessary to comply with the requirements (including, without limitation, parking requirements) contained in such Lease. To BorrowerEach Borrower is the holder of the lessor’s, landlord’s knowledgeor licensor’s interest in and to all of the Leases of the Mortgaged Property owned by it. Each Borrower has granted to Agent for the benefit of the Lenders a first priority lien and security interest in and to all of the Leases of the Mortgaged Property owned by it pursuant to the terms of the Security Documents, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingon Schedule 1.4 attached hereto.
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Leases. The (a) Prior to the Closing, Sellers shall use commercially reasonable efforts (but without any obligation to pay any money or other consideration) to obtain and deliver to Buyers (i) estoppel certificates from each counterparty under the Real Property is not subject to any leases other than the Leases described and Third Party Leases, substantially in the rent roll attached hereto as Schedule I form required by the applicable lease or, if no form is provided for, in a form mutually agreeable to the Parties (each, a “Lease Estoppel”), and made a part hereof(ii) to the extent reasonably requested by Buyers, which rent roll is true, complete Subordination and accurate in all respects as of the Closing Date. Borrower is the owner Non-Disturbance Agreements from third party landlords and lessor (or sublessor) of landlord’s interest in the Leases. Except their lenders with respect to the Permitted EncumbrancesLeased Real Properties, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant a form mutually agreeable to the provisions Parties (each, an “SNDA”). Sellers shall be obligated for any amounts required by the terms of the Leases. The current Real Property Leases are in full force to be paid by the signatories to the Lease Estoppels and effect and, except as SNDAs.
(b) Notwithstanding anything to the contrary set forth on herein, if, despite the rent roll attached hereto as Schedule I or in 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 delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent applicable Real Property Lease or other sums or Third Party Lease, in a form reasonably acceptable to Buyers (each, a “Seller Estoppel”) and, in the performance case of any obligations 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 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 its the applicable Real Property Lease or 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 of no further force or effect for any purpose under this Agreement with respect to such Leased Real Property.
(c) Subject to Section 5.13(b), (i) 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) made no Seller Estoppel will be acceptable if it reflects any other bona fide request for fact or otherwise given 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 foregoing clauses (i) and (ii), 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 Buyers. To the extent 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, Sellers shall use commercially reasonable efforts to commence curing such matter, if and to the extent curable, not later than delivery to Buyers of the applicable Lease Estoppel or Seller Estoppel, 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 default prior to the Closing as provided in the preceding sentence, and/or in the event Buyers disapprove of any Objectionable Disclosure disclosed by any Lease Estoppel or Seller Estoppel, then, at Buyers’ option, exercisable by written notice that it intends to seek any amendmentSellers prior to the consummation of the Closing, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) the Purchase Price will be reduced by an amount reasonably necessary to cure the applicable breach or default, such amount to be mutually agreed upon in good faith by Buyers and Sellers, or (B) Buyers may elect to proceed to the Closing without a reduction of the 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 force majeure clause contained 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 uncured breach or default, plus (2) the Assigned Drop Value assigned to the applicable Station Property on Schedule 2.7 in its the event the applicable Real Property Lease or otherwise Third Party Lease is terminated following the Closing as a result of the COVID-19 pandemic such uncured breach or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingdefault.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sunoco LP)
Leases. The Property is not subject Borrower shall act promptly to attempt to enforce all available remedies against any leases other than delinquent tenant in a commercially reasonable manner commensurate with the magnitude of the default involved, so as to protect the interest of the landlord under the Leases described and to preserve the value of the Mortgaged Property. Borrower shall comply with and perform in a complete and timely manner all of its material obligations as landlord under all Leases. Borrower shall send Mortgagee a copy of any and each written claim received by Borrower from any tenant of an alleged default by the landlord under any Lease affecting the Mortgaged Property, promptly upon receipt of such notice, but, in any event, in such time to afford Mortgagee an opportunity to cure any such default prior to the tenant having any right to terminate the Lease. Borrower shall furnish promptly to Mortgagee upon request (i) copies of all such Leases now existing or hereafter created, as amended, and (ii) a current rent roll in form reasonably satisfactory to Mortgagee certified by Borrower. The assignment contained in clause (K) of the granting paragraph of this Mortgage shall not be deemed to impose upon Mortgagee any of the obligations or duties of the landlord or Borrower provided in any Lease prior to Mortgagee owning or controlling the Mortgaged Property, including, without limitation, any liability under the covenant of quiet enjoyment contained in any Lease in the rent roll attached hereto event that any tenant shall have been joined as Schedule I a party defendant in any action to foreclose this Mortgage. Borrower hereby acknowledges and made a part hereof, which rent roll agrees that Borrower is true, complete and accurate will remain liable under such Leases to the same extent as though the assignment contained in all respects as clause (K) of said granting paragraph had not been made. Mortgagee disclaims any assumption of the Closing Date. obligations imposed upon the landlord or Borrower is the owner and lessor (or sublessor) of landlord’s interest in under the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on to such obligations which arise after such time as Mortgagee shall have exercised the rent roll attached hereto as Schedule I rights and privileges conferred upon it by the assignment contained in clause (K) of said granting paragraph or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to otherwise possesses or controls the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunderMortgaged Property. Except as set forth otherwise expressly authorized under the Loan Agreement, Borrower shall not permit any Leases to be made of the Mortgaged Property without the prior written consent of Mortgagee which consent shall not be unreasonably withheld, conditioned or delayed. Following approval by Mortgagee of any Lease requiring Mortgagee's prior approval, Borrower shall not modify the approved Lease in any tenant estoppel certificate delivered material respect without Mortgagee's prior written consent. Borrower shall not permit any Lease affecting the Mortgaged Property requiring Mortgagee's prior approval to Lenderbe modified, renewed or as otherwise disclosed extended (except pursuant to Lender options in Leases previously approved by Mortgagee). In the Lease event of the enforcement by Mortgagee of the remedies provided for by law or by Borrowerthis Mortgage, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or Mortgaged Property made after the building date of which recording this Mortgage shall, at the leased premises are option of the Mortgagee, attorn to any person succeeding to the interest of Borrower, as a part. Except result of such enforcement and shall recognize such successor in interest as disclosed to Lender or as set forth landlord under such Lease without change in the Leases terms or except as set forth other provisions thereof, provided, however, that said successor in interest shall not be bound by any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums additional rent for more than one month in advance or any material amendment or modification to any Lease made without the performance prior consent of Mortgagee or said successor in interest, except to the extent permitted herein. Each tenant, upon request by Mortgagee or any obligations under its Lease such successor in interest, shall execute and deliver an instrument or (ii) made any other bona fide request for instruments confirming such attornment, provided that Mortgagee agrees not to name such tenant in a foreclosure action or not to otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision disturb such tenant if not in default of its Lease, and Borrower shall cause each such Lease to contain a covenant on the tenant's part evidencing its agreement to such attornment, which obligation shall be conditioned on Mortgagee agreeing to similarly attorn to said tenant and not disturb said tenant's possession so long as there is no default by the tenant under said Lease beyond any applicable notice, grace or cure period. At the option of Mortgagee, this Mortgage shall become subject and subordinate, in each case whole or in part (Abut not with respect to priority of entitlement to insurance proceeds or any award in condemnation) pursuant to any force majeure clause contained in its Lease and all Leases of all or otherwise as a result any part of the COVID-19 pandemic or Mortgaged Property upon the execution by Mortgagee and recording thereof, at any Emergency Law time hereafter, in the Office of the Recorder of Deeds in and (B) other than requestsfor the county wherein the Land is situated, notices or defenses of a unilateral declaration to that have been withdrawn or resolved or are otherwise no longer outstandingeffect.
Appears in 1 contract
Sources: Construction Mortgage, Security Agreement and Financing Statement (Bluegreen Corp)
Leases. The Property Mortgagee is not authorized to foreclose this Leasehold Mortgage subject to the rights of any leases other than the Leases described in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as tenants of the Closing Date. Borrower is Mortgaged Property, and the owner failure to make any such tenants parties defendant to Intercreditor Agreement and lessor (any such foreclosure proceedings and to foreclose their rights shall not be, nor be asserted by Mortgagor to be, a defense to any proceedings instituted by Mortgagee to collect the sums secured hereby or sublessor) to collect any deficiency remaining unpaid after the foreclosure sale of landlord’s interest in the Leases. Except with respect to the Permitted EncumbrancesMortgaged Property, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant . Unless otherwise agreed by Mortgagee in writing, all Space Leases executed subsequent to the provisions date hereof, or any part thereof, shall be subordinate and inferior to the lien of this Leasehold Mortgage, except that from time to time Mortgagee may execute and record among the land records of the Leases. The current jurisdiction where this Leasehold Mortgage is recorded, subordination statements with respect to such of said Space Leases are as Mortgagee may designate in full force and effect andits sole discretion, except as set forth on whereby the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder Space Leases so designated by Borrower nor, Mortgagee shall be made superior to the best lien of Borrower’s knowledge, any other party thereunder and, to this Leasehold Mortgage for the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as term set forth in such subordination statement. From and after the recordation of such subordination statements, and for the respective periods as may be set forth therein, the Space Leases therein referred to shall be superior to the lien of this Leasehold Mortgage and shall not be affected by any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease)foreclosure hereof. All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in Space Leases shall contain a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect provision to the payment effect that the Mortgagor and Space Lessee recognize the right of rent or other sums or the performance Mortgagee to elect and to effect such subordination of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law this Leasehold Mortgage and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingconsents thereto.
Appears in 1 contract
Leases. The (a) Any and all Material Leases or Joint Venture Leases on any portion of the Property (other than Resident Agreements) may only be entered into with the prior written consent of the Agent. All Resident Agreements (to the extent that the form thereof is not subject mandated by Governmental Authorities) and non-Material Leases shall be entered into on the Mortgagor's or ALS' standard form, pre-approved by Agent. Unless otherwise agreed to by Agent, Leases shall (i) be at market rents, (ii) other than Resident Agreements, be subordinate to the lien of this Mortgage (provided that Joint Venture Leases and Material Leases shall be subordinate to the lien of this Mortgage pursuant to the terms of such Leases or subordination agreements acceptable to the Agent (but in all cases there shall be nondisturbance provisions for Joint Venture Leases and, if acceptable to the Agent, for other Material Leases)), (iii) other than Resident Agreements, contain attornment language requiring each tenant to attorn to any leases subsequent purchaser of the Property, (iv) other than with respect to Joint Venture Leases and other than with respect to Material Leases with respect to which the Leases described in Agent has agreed to a nondisturbance provision, not contain non-disturbance language entitling such tenant to remain at the rent roll attached hereto as Schedule I Property after any sale of such Property, and made a part hereof, which rent roll is true, complete and accurate shall be in all other respects acceptable to the Agent. At any time, within thirty (30) days after Notice from the Agent, the Mortgagor or ALS will deliver to the Agent a written description in such reasonable detail as the Agent may request of all of the Closing DateLeases, including, without limitation, the names of all tenants, the terms of all Leases and the Rents payable under all Leases, and, on demand, the Agent will furnish to the Agent fully executed copies of any Leases and such subordination and attornment agreements as the Agent may request in accordance with the foregoing provision. Borrower is If any Lease provides for the owner and lessor (or sublessor) giving by the tenant of landlord’s interest in the Leases. Except certificates with respect to the Permitted Encumbrancesstatus of such Lease, no Person has any possessory interest in the Property Mortgagor or ALS (or any portion thereofas required) or shall exercise its right to occupy require such certificate within ten (10) days after any request by the same except Agent. Within thirty (30) days after any request by the Agent, the Mortgagor or ALS (as required) will notify all tenants under existing Leases, and agrees to thereafter notify all tenants under future Leases, that (i) the Mortgagor and/or ALS collect and receive all Rents pursuant to the provisions license granted to it hereunder, and (ii) upon Notice from the Agent that such license has been revoked, the tenant shall pay all unpaid Rent directly to the Agent.
(b) So long as no Event of Default has occurred, the Mortgagor and ALS 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 the Lenders. Each month, provided no Event of Default has occurred, the Mortgagor and ALS may retain such Rents as were collected that month and held in trust for the Lenders. Upon revocation of such license and following notification to the tenants under the Leases by the Agent that Rents are to be paid to the Agent, all Rents shall be paid directly to the Agent and not through the Mortgagor or ALS. A demand by the Agent on any tenant for the payment of Rent shall be sufficient to warrant such tenant to make future payments of Rent to the Agent without the necessity of further consent by the Mortgagor or ALS.
(c) The Mortgagor or ALS, at its sole cost and expense, will use its best efforts to enforce or secure, or cause to be enforced or secured, the performance of each and every obligation and undertaking of the Leases. The current respective tenants under any Leases are and will appear in full force and effect anddefend, except as set forth on the rent roll attached hereto as Schedule I at its sole cost and expense, any action or proceeding arising under, or in any tenant estoppel certificate delivered manner connected with, such Leases.
(d) Neither the Mortgagor nor ALS will assign the whole or any part of the Leases or Rents without the prior written consent of the Agent, and any assignment without such consent shall be null and void.
(e) The Mortgagor and ALS will promptly perform all of their obligations under any Leases. Neither the Mortgagor nor ALS will, without the prior written consent of the Agent, (i) other than under or with respect to LenderResident Agreements in the ordinary course of business, there are no uncured defaults thereunder by Borrower norcancel, to terminate, accept a surrender of, reduce the best payment of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of noticerent under, or both, would constitute defaults thereunder. Except as set forth in accept any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid prepayment of rent for more than one (1) month in advance under, any Lease, or (ii) permit a Lien on the Property superior to any Lease, other than this Mortgage.
(f) If any Lease is subordinate (either by its date, its express terms, or by subsequent agreement of its due date the tenant) to this Mortgage, such Lease shall be subject to the condition (and this Mortgage so authorizes) that, in the event of any sale of the Property pursuant to the provisions of Section 7.2 (Foreclosure), but subject to any non-disturbance agreement of the Lenders with respect to such Lease, the Lease (other than in connection with any Resident Agreement) shall, at the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as sole option of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and Agent or any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) purchaser at such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, either (i) continue in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or full force and effect as set forth in the Leases required advertisement of sale, and the tenant or except as set forth in any tenant estoppel certificate delivered tenants thereunder will, upon request, attorn to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender and acknowledge in writing the purchaser or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstanding.purchasers at such sale or
Appears in 1 contract
Sources: Mortgage, Assignment and Security Agreement (Alternative Living Services Inc)
Leases. The Property is not subject to any leases other than Borrower shall observe and perform all the obligations ------ imposed upon the lessor under the Leases described and shall not do or permit to be done anything to impair the value of the Leases or any guaranty of any Lease as a security for the Obligations. Borrower shall, in the rent roll attached hereto as Schedule I and made a part hereofordinary course of its business, which rent roll is true, complete and accurate in enforce all respects as of the Closing Dateterms, covenants, and conditions contained in the Leases upon the part of the Tenants thereunder to be observed or performed. Borrower is the owner and lessor (shall hold, or sublessor) of landlord’s interest in the Leases. Except cause Manager to hold, all security deposits with respect to the Permitted EncumbrancesLeases in a segregated account and otherwise in conformity with Legal Requirements. Borrower (i) shall not alter, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of noticemodify, or both, would constitute defaults thereunder. Except as set forth in change the terms of any tenant estoppel certificate delivered to Lease without the prior consent of Lender, or as otherwise disclosed to Lender in the cancel or terminate any Lease or by Borrower, no Rent has been paid more than one (1) month in advance accept a surrender thereof or approve or consent to the cancellation or termination of its due date (other than in connection any guaranty with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lenderrespect thereto, or as otherwise disclosed to Lender in the Lease convey or by Borrower, all work to be performed by Borrower under each Lease as transfer or suffer or permit a conveyance or transfer of the Closing Date has been performed as required and has been accepted premises demised by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of any interest therein so as to effect a merger of the Rents received thereinestates and rights of, in each caseor termination or diminution of the obligations of lessee thereunder, which is outstanding. To Borrower’s knowledge(ii) shall not consent to, no Tenant listed on Schedule I has assigned its Lease reject, approve or except as set forth in disapprove any action or inaction requested by any tenant estoppel certificate delivered to Lenderunder any Lease, including, without limitation any assignment of or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant subletting under any Lease has (provided, however, that Lender's consent to a right subletting or option pursuant to assignment shall not be required if such Lease subletting or otherwise to purchase all or assignment is in accordance with the terms of such Lease), which consent may be unreasonably withheld by Lender in its discretion, and (iii) shall not pursue any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant remedies under any Lease has or any right or option for additional space in guaranty with respect thereto without the Improvementsprior written consent of Lender. Except as disclosed to Lender in writing or as set forth in Notwithstanding the Leases or in any tenant estoppel certificate delivered to foregoing, Borrower may, without the prior written consent of Lender, no tenant has (i) asserted any defense make minor modifications or otherwise sought amendments, or given notice (whether written or oral) that it intends to seek any relief or concessions give consents, with respect to any Lease so long as such modification, amendment, or consent does not potentially affect the length of the term of such Lease and does not result in the reduction of the tenant's obligations for the payment of rent rent, additional rent, or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for charges payable by the tenant under such Lease, or otherwise given written notice that it intends to seek amend or modify any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Leasesuch Lease relating to exclusivity of use, in each case (A) pursuant to any force majeure clause contained in its Lease co-tenancy rights, or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingkick-out rights.
Appears in 1 contract
Sources: Revolving Loan Agreement (Wells Real Estate Investment Trust Inc)
Leases. The Property Each lease that is not to be used in leasing any of the real property owned by Borrower or any Subsidiary shall be subject to any leases other than the Leases described in the rent roll attached hereto as Schedule I and made a part hereofAdministrative Agent’s prior written approval, which rent roll is true, complete approval shall not be unreasonably withheld. Each such lease shall have been entered into by Borrower or such Subsidiary in good faith and accurate in all respects as of the Closing Dateat arm’s length. Borrower is the owner shall, or shall cause its Subsidiary to, assign to Administrative Agent all of its right, title and lessor (or sublessor) of landlord’s interest in and to all leases and rents and shall execute and deliver to Administrative Agent written assignments thereof in form satisfactory to Administrative Agent. Upon request of Administrative Agent, Borrower shall deliver to Administrative Agent individual estoppel certificates from all tenants under such leases certifying: (a) that the Leases. Except with respect leased premises have been completed to the Permitted Encumbrancessatisfaction of that tenant, no Person has any possessory interest in (b) that the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are lease is in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, and there are no uncured existing defaults thereunder by Borrower nor, to the best knowledge of Borrower’s knowledgethat tenant, any other party thereunder and(c) the date upon which the term of the lease commenced and the date to which rentals have been paid, to the best of Borrower’s knowledge, (d) that there are no conditions that, with setoffs or counterclaims against the passage of time or rent payments and no credits against the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or payments except as set forth in any tenant estoppel certificate delivered the lease, (e) that the lease has not been amended or modified and there are no representations, warranties, understandings or agreements pertaining to Lender, or the subject matter thereof other than as otherwise disclosed to Lender expressly stated in the Lease written lease, and (f) that the tenant has no knowledge of any prior assignment or by Borrower, sublet all or any portion pledge of the premises demised therebylease or of rentals thereunder. For purposes of clarification, no such Tenant holds its leased premises under assignment. Except as disclosed this Section 5.12 shall only apply to Lender real property owned by the Borrower and/or any Subsidiary and does not apply to leases or except as set forth in a Lease or in subleases to any tenant estoppel certificate delivered Subsidiary, nor does it apply to Lender, no Tenant under any Lease has a right or option leases of real property pursuant to such Lease or otherwise to purchase all or which Borrower and/or any part of Subsidiary is the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandinglessee.
Appears in 1 contract
Leases. The Property is not subject to any leases other than (a) Borrower will utilize the Leases described Approved Lease Form in the rent roll attached hereto as Schedule I and made a part hereof, which rent roll is true, complete and accurate in all respects as of the Closing Date. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease). All security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase leasing all or any part of the leased premises or Mortgaged Property, subject only to non-material changes made on a lease-by-lease basis. Borrower shall not enter into any leases without Lender’s prior written approval, such approval to be in the building sole and absolute discretion of which Lender. Notwithstanding the leased premises are a part. Except foregoing, so long as disclosed to such lease otherwise meets the criteria provided in this Section 5.18 (i.e., Lender or as approves such proposed tenant’s creditworthiness and Lender will receive an SNDA if an SNDA is required by Lender) and meets the criteria set forth in Exhibit G attached hereto, such approval shall be in Lender’s reasonable discretion. Prior to the Leases or except as set forth 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 approval on the receipt of an SNDA in any tenant estoppel certificate delivered form 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) Upon request of Lender, no Tenant Borrower shall use commercially reasonable efforts to obtain from the tenant under any Lease has covering any right or option for additional space in portion of the Improvements. Except Mortgaged Property, from time to time as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to requested by Lender, no tenant has estoppel certificates stating that (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or is unmodified and in full force and effect and (ii) made any other bona fide request for that no default exists thereunder on the part of Tenant or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingBorrower.
Appears in 1 contract
Sources: Construction Loan Agreement (Stratus Properties Inc)
Leases. The Borrower will comply with the terms and conditions of, and deliver leased premises at the time and in the condition required by, any Bank-approved lease. Borrower will not enter into, amend or 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 is not subject without Bank's prior written consent. Bank's consent may be conditioned upon receipt of such 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 Leases described in the rent roll attached hereto as Schedule I Publix Lease, Borrower shall prepare and made furnish Lender with a part hereofproposed standard lease form ("Lease") for Lender's approval (which shall not be unreasonably withheld), which form of Lease shall contain a provision subordinating all such leases to the lien and operation of Lender's Mortgage and other security instruments, as same may be modified from time to time. Borrower shall not accept payment of advanced rent roll is truefor more than two months. Bank shall have the 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, complete and accurate in all respects as throughout the term of the Closing DateLoan, promptly submit or cause to be submitted by Bank photocopies of all tenant leases and side agreements as to the Project. Borrower is the owner and lessor (or sublessor) of landlord’s interest in the Leases. Except with respect shall submit to the Permitted Encumbrances, no Person has any possessory interest in the Property (or any portion thereof) or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and, except as set forth Bank written Rent Rolls on the rent roll attached hereto as Schedule I or in any tenant estoppel certificate delivered to Lender, there are no uncured defaults thereunder by Borrower nor, to the best of Borrower’s knowledge, any other party thereunder and, to the best of Borrower’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. Except as set forth in any tenant estoppel certificate delivered to Lender, a quarterly basis or as otherwise disclosed 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 for each space leased, amount of any deposits, name and address of lessee, amount of space leased during the preceding reporting period, any rent abatements or concessions and any other information relevant to Lender in the Lease or leasing program reasonably requested by Borrower, no Rent has been paid more than one (1) month in advance of its due date (other than in connection with the first month’s Rent under a new Lease)Bank. All reports shall be in form reasonably satisfactory to Bank. All new leases or renewals or modifications of existing leases shall be subordinate to Bank's Mortgage and other security deposits are held by Borrower in accordance with applicable law. Except as set forth in any tenant estoppel certificate delivered instruments and collaterally assigned to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, all work to be performed by Borrower under each Lease as of the Closing Date has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant as of the Closing Date has already been received by (or credited to) such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein, in each case, which is outstanding. To Borrower’s knowledge, no Tenant listed on Schedule I has assigned its Lease or except as set forth in any tenant estoppel certificate delivered to Lender, or as otherwise disclosed to Lender in the Lease or by Borrower, sublet all or any portion of the premises demised thereby, no such Tenant holds its leased premises under assignment. Except as disclosed to Lender or except as set forth in a Lease or in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as disclosed to Lender or as set forth in the Leases or except as set forth in any tenant estoppel certificate delivered to Lender, no Tenant under any Lease has any right or option for additional space in the Improvements. Except as disclosed to Lender in writing or as set forth in the Leases or in any tenant estoppel certificate delivered to Lender, no tenant has (i) asserted any defense or otherwise sought or given notice (whether written or oral) that it intends to seek any relief or concessions with respect to the payment of rent or other sums or the performance of any obligations under its Lease or (ii) made any other bona fide request for or otherwise given written notice that it intends to seek any amendment, waiver, deferral, forbearance or other modification of any term or provision of its Lease, in each case (A) pursuant to any force majeure clause contained in its Lease or otherwise as a result of the COVID-19 pandemic or any Emergency Law and (B) other than requests, notices or defenses that have been withdrawn or resolved or are otherwise no longer outstandingBank.
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Sources: Construction Loan Agreement (Arvida JMB Partners L P)