Common use of Property Documents Clause in Contracts

Property Documents. (a) Tenant shall, at Tenant’s expense, at all times promptly and faithfully abide by, discharge and perform in all material respects all of the covenants, conditions and agreements contained in all Property Documents on the part of Landlord or Tenant to be kept and performed thereunder (regardless of whether Landlord or Tenant is the party to such Property Documents). Without limiting the generality of the foregoing or any of Tenant’s obligations under Section 7.4, Tenant shall not violate in any material respect the terms and conditions of any applicable Property Document (any such violation, a “Property MAE”). (b) Tenant shall not alter, modify, amend or terminate any Property Document, exercise any consent or approval right thereunder or enter into any new Property Document (each, a “Property Document Action”) without, in each case, the prior written consent of Landlord, which may be granted or withheld in Landlord’s reasonable discretion. Each Party shall promptly deliver to the other Party any notices of default, notices of termination or other material notices received by such Party under any Property Document from the applicable counterparty thereto or thereunder (each, a “Counterparty”), including, for the avoidance of doubt, any notices that relate to any actual or threatened defaults or enforcement actions of or against Tenant or Landlord under or in connection with such Property Documents. Tenant shall reasonably cooperate with Landlord, and (so long as no Event of Default exists), Landlord shall reasonably cooperate with Tenant as may be necessary in connection with Landlord’s or Tenant’s (as applicable) compliance with its respective obligations under any Property Documents, which cooperation shall (in the case of Tenant) include Tenant’s delivery, at its sole cost and expense, of any required financial reporting to (and/or, subject to the terms of this Section 7.3, obtaining necessary consents or approvals from) the applicable Counterparties. At Tenant’s request, and provided that no Event of Default then exists, if and to the extent that Landlord has any rights to receive notice and/or cure rights pursuant to the express terms of any Property Document (it being agreed that Landlord shall not be required to amend any such Property Document in order to provide Tenant with any such notice and cure rights), Landlord shall request and, at Tenant’s sole cost and expense, use commercially diligent efforts to cause the applicable Counterparty to provide Tenant with such available notice and/or cure rights; provided, however, that (1) if at any time Tenant reasonably determines that Landlord is not using commercially diligent efforts to obtain such available notice and cure rights from the applicable Counterparty, then Tenant may, but shall not be obligated to, deliver to Landlord Notice thereof (a “Counterparty Protection Notice”) and informing Landlord of Tenant’s desire to request such available notice and/or cure rights directly from such Counterparty and (2) if, within five (5) Business Days following Tenant’s delivery of such Counterparty Protection Notice, Landlord fails to obtain such available notice and/or cure rights from the applicable Counterparty and no Event of Default then exists, Tenant shall have the right to request such available notice and/or cure rights directly from such Counterparty, provided that (I) Tenant shall copy Landlord on all written communications (including email requests) and (II) if Landlord requests in writing, Tenant shall include Landlord on all telephonic, Zoom (and similar technology) and written communications with such Counterparty (and Landlord agrees to make its representatives available at mutually-convenient times so as to facilitate such communications). (c) Landlord shall have the right from time to time to take or enter into any Property Document Action on the following conditions: (i) not less than ten (10) days prior to the effective date of any proposed Property Document Action, Landlord shall provide Tenant with Notice thereof (which shall include a copy of any applicable draft amendment, modification or other document memorializing such Property Document Action), and an opportunity to consult with Landlord with respect thereto and (ii) Tenant’s prior written consent shall be required with respect to any such Property Document Action if such Property Document Action would: (A) have any material adverse effect on any access (including for inbound and outbound trailers), parking, ingress or egress to or from (including the modification of any entry or exit points), or the visibility of, the applicable Demised Premises or Property; or (B) increase in any material respect Tenant’s obligations, or decrease in any material respect Tenant’s rights, under such Property Document or this Lease. If Tenant’s prior written consent shall be required with respect to a Property Document Action pursuant to the immediately preceding sentence, such consent shall be granted or withheld (1) in Tenant’s commercially reasonable judgment in the case of any Property Document Action described in clause (B) above and (2) in Tenant’s sole discretion in the case of any Property Document Action described in clause (A) above.

Property Documents. Seller hereby represents it has delivered to Buyer or otherwise made reasonably available to Buyer, the documents set forth in subsections (a) Tenant shall, at Tenant’s expense, at all times promptly and faithfully abide by, discharge and perform in all material respects all of the covenants, conditions and agreements contained in all Property Documents on the part of Landlord or Tenant to be kept and performed thereunder through (regardless of whether Landlord or Tenant is the party to such Property Documents). Without limiting the generality of the foregoing or any of Tenant’s obligations under Section 7.4, Tenant shall not violate in any material respect the terms and conditions of any applicable Property Document (any such violation, a “Property MAE”). (bp) Tenant shall not alter, modify, amend or terminate any Property Document, exercise any consent or approval right thereunder or enter into any new Property Document (each, a “Property Document Action”) without, in each case, the prior written consent of Landlord, which may be granted or withheld in Landlord’s reasonable discretion. Each Party shall promptly deliver to the other Party any notices of default, notices of termination or other material notices received by such Party under any Property Document from the applicable counterparty thereto or thereunder (each, a “Counterparty”), including, for the avoidance of doubt, any notices that relate to any actual or threatened defaults or enforcement actions of or against Tenant or Landlord under or in connection with such Property Documents. Tenant shall reasonably cooperate with Landlord, and (so long as no Event of Default exists), Landlord shall reasonably cooperate with Tenant as may be necessary in connection with Landlord’s or Tenant’s (as applicable) compliance with its respective obligations under any Property Documents, which cooperation shall (in the case of Tenant) include Tenant’s delivery, at its sole cost and expense, of any required financial reporting to (and/or, subject to the terms of this Section 7.33 (collectively, obtaining necessary consents or approvals from) the applicable Counterparties. At Tenant’s request, and provided that no Event of Default then exists, if and to the extent that Landlord has any rights to receive notice and/or cure rights pursuant to the express terms of any “Property Document (it being agreed that Landlord shall not be required to amend any such Property Document in order to provide Tenant with any such notice and cure rightsDocuments”), Landlord shall request and, at Tenant’s sole cost and expense, use commercially diligent efforts to cause the applicable Counterparty to provide Tenant with such available notice and/or cure rights; provided, however, that Buyer acknowledges and agrees that it has, as of the date hereof, received, reviewed and approved each of the Phase I Environmental Site Assessments and Sensitive Receptors Surveys prepared by ▇▇▇▇ Environmental Inc. and dated in February, March and April, 2003 (1the “Site Assessments”) if at and the other Property Documents specified in Schedule 2 attached hereto (collectively, with the Site Assessments, the “Schedule 2 Documents”). Seller, with Buyer’s consent, has engaged directly third parties in connection with the preparation of all title reports, surveys and appraisals and that the scope of any time Tenant reasonably determines that Landlord is not using commercially diligent efforts such engagement has been approved by Buyer. Buyer has engaged all other third parties in connection with its acquisition of the Properties. (a) Commitments for title insurance covering each fee estate in each Real Property (collectively “Title Commitments”; each individually a “Title Commitment”) from Title Company, setting forth the status of title to obtain such available notice each Real Property, showing all matters of record affecting each Real Property, together with a true, complete and cure rights from (to the applicable Counterpartyextent available) legible copy of all documents referred to in each Title Commitment; (b) Current ALTA Land Title “As Built” Survey (collectively, then Tenant maythe “Surveys”; each individually, but a “Survey”) for each Real Property, containing the certification set forth on Exhibit B, as the same may be required to be modified (subject to Buyer’s consent, which shall not be obligated to, deliver unreasonably withheld) to Landlord Notice thereof (a “Counterparty Protection Notice”) conform with requirements of particular jurisdictions and informing Landlord of Tenant’s desire to request such available notice and/or cure rights directly from such Counterparty and (2) if, within five (5) Business Days following Tenant’s delivery of such Counterparty Protection Notice, Landlord fails to obtain such available notice and/or cure rights from the applicable Counterparty and no Event of Default then exists, Tenant shall have the right to request such available notice and/or cure rights directly from such Counterparty, provided that (I) Tenant shall copy Landlord on all written communications (including email requests) and (II) if Landlord requests in writing, Tenant shall include Landlord on all telephonic, Zoom (and similar technology) and written communications with such Counterparty (and Landlord agrees to make its representatives available at mutually-convenient times so as to facilitate such communications).surveys; (c) Landlord [****] (d) Evidence of insurance covering all Properties as required pursuant to the Master Lease Agreements, whose effective date shall be no later than the Closing Date; (e) To the extent in Seller’s possession, a certificate of occupancy regarding each Real Property; [****] Redacted in accordance with applicable practice with Autorite des marches financiers (Quebec Securities Commission) (f) Profit and loss statements regarding each Property and such other financial statements and information as Buyer reasonably shall have requested regarding Seller or the right Properties; (g) [****]; (h) Any engineering reports (other than the Site Assessments) in Seller’s possession regarding the Real Properties, including without limitation a description of any deferred maintenance and repairs and an estimate of the cost thereof, and a reliance letter in favor of Buyer for each such report from time to time to take the person or enter into any Property Document Action on the following conditions: entity that prepared same; (i) not less than ten MAI Appraisal (10including Land valuation) days prior for each Real Property (each, an “Appraisal”) and a reliance letter in favor of Buyer for each Appraisal from the person or entity that prepared same; (j) UCC, litigation and tax lien searches from the Title Company or, subject to Seller’s reasonable approval, another commercially recognized search company regarding all Properties and Seller; (k) For each Real Property, zoning permits and regulations (if available) and other evidence of proper zoning (e.g. zoning letters or zoning reports), as may be reasonably available to Seller; and if legal non-conforming uses exist, evidence that the improvements may be rebuilt to existing specifications following a casualty or condemnation, as may be reasonably available to Seller; (l) Final “As Built” plans and specifications for each Real Property, if in Seller’s possession; (m) Any governmental “no further action” letters regarding any Real Property, if reasonably available to Seller; (n) [****] (o) All of the following concerning each Property, in each case if material and if in Seller’s possession: any and all studies, data, reports, agreements, licenses, leases, environmental assessments, surveys, reports, documents, plans, maps, and permits (to the effective date of any proposed Property Document Action, Landlord shall provide Tenant with Notice thereof extent not already delivered to Buyer pursuant to subsections (which shall include a copy of any applicable draft amendment, modification or other document memorializing such Property Document Actiona) – (n), and an opportunity to consult with Landlord with respect thereto and above); and (iip) Tenant’s prior written consent shall be required with respect to any such Property Document Action if such Property Document Action would: (A) have any material adverse effect on any access (including for inbound and outbound trailers)Such other information regarding Seller, parking, ingress or egress to or from (including the modification of any entry or exit points)ACT, or any of the visibility ofProperties that Buyer reasonably may have requested, the applicable Demised Premises or Property; or (B) increase in any material respect Tenant’s obligations, or decrease in any material respect Tenant’s rights, under such Property Document or this Lease. If Tenant’s prior written consent shall be required with respect to a Property Document Action pursuant to the immediately preceding sentence, extent such consent shall be granted or withheld (1) in Tenant’s commercially reasonable judgment in the case of any Property Document Action described in clause (B) above and (2) in Tenant’s sole discretion in the case of any Property Document Action described in clause (A) aboveother information is reasonably available to Seller.

Property Documents. (a) Tenant shall, at Tenant’s expense, at all times promptly and faithfully abide by, discharge and perform in all material respects respects, all of the covenants, conditions and agreements contained in all Property Documents on the part of Landlord or Tenant to be kept and performed thereunder (regardless of whether Landlord or Tenant is the party to such Property Documents). Without limiting the generality of the foregoing or any of Tenant’s obligations under Section 7.4, Tenant shall not violate in any material respect the terms and conditions of any applicable Property Document (any such violation, a “Property MAE”). (b) Tenant shall not alter, modify, amend or terminate any Property Document, exercise any consent or approval right thereunder or enter into any new Property Document (each, a “Property Document Action”) without, in each case, the prior written consent of Landlord, which may be granted or withheld in Landlord’s reasonable discretion. Each Party shall promptly deliver to the other Party any notices of default, notices of termination or other material notices received by such Party under any Property Document from (i) if such Property Document is a Ground Lease, the applicable ground lessor (each, a “Ground Lessor”) and (ii) if such Property Document is an REA, the applicable owner, developer, operator or other counterparty thereto or thereunder (each, a “Developer” and, together with any Ground Lessor, each, a “Counterparty”), including, for the avoidance of doubt, any notices that relate to any actual or threatened defaults or enforcement actions of or against Tenant or Landlord under or in connection with such Property Documents. Tenant shall reasonably cooperate with Landlord, and (so long as no Disabling Event of Default exists), ) Landlord shall reasonably cooperate with Tenant Tenant, as may be necessary in connection with Landlord’s or Tenant’s (as applicable) compliance with its respective obligations under any Property Documents, which cooperation shall (in the case of Tenant) include Tenant’s delivery, at its sole cost and expense, of any required financial reporting to (and/or, subject to the terms of this Section 7.3, obtaining necessary consents or approvals from) the applicable Counterparties. At Tenant’s request, and provided that no Disabling Event of Default then exists, (A) Landlord shall use commercially reasonable efforts to obtain (and shall reasonably cooperate with Tenant in obtaining), at Tenant’s sole cost and expense, a subordination, non-disturbance and attornment agreement or other recognition agreement from the applicable Ground Lessor with respect to each Ground Lease (a “Ground Lease SNDA”) to the extent that Landlord has the right to request any such protections in accordance with the terms of such Ground Lease, and (B) if and to the extent that Landlord has any rights to receive notice and/or cure rights pursuant to the express terms of any Property Document (it being agreed that Landlord shall not be required to amend any such Property Document in order to provide Tenant with any such notice and cure rights), Landlord shall request and, at Tenant’s sole cost and expense, use commercially diligent efforts to cause the applicable Counterparty to provide Tenant with such available notice and/or cure rights; provided, however, that (1) if at any time Tenant reasonably determines that Landlord is not using commercially diligent efforts to obtain such available notice and cure rights from the applicable Counterparty, then Tenant may, but shall not be obligated to, deliver to Landlord Notice thereof (a “Counterparty Protection Notice”) and informing Landlord of Tenant’s desire to request such available notice and/or cure rights directly from such Counterparty and (2) if, within five (5) Business Days following Tenant’s delivery of such Counterparty Protection Notice, Landlord fails to obtain such available notice and/or cure rights from the applicable Counterparty and no Disabling Event of Default then existsexists with respect to the applicable Property, Tenant shall have the right to request such available notice and/or cure rights directly from such Counterparty, provided that (I) Tenant shall copy Landlord on all written communications (including email requests) and (II) if Landlord requests in writing, Tenant shall include Landlord on all telephonic, Zoom (and similar technology) and written communications with such Counterparty (and Landlord agrees to make its representatives available at mutually-convenient times so as to facilitate such communications). (cb) Landlord With respect to those certain REAs that encumber S/B Properties (each, an “S/B REA”), so long as no Disabling Event then exists, Tenant shall have the right, power and authority, on its own behalf or on behalf of Landlord, in its capacity as the fee or leasehold owner (as the case may be) of the applicable Property, and (subject to the further provisions of this clause (b)) without Landlord’s consent, to amend, modify, supplement and/or amend and restate such S/B REA, to exercise any right from time to time amend, modify, supplement and/or amend and restate such S/B REA, to take approve or enter into consent to any Property Document Action on action or to exercise any other similar right to which, in each case, Landlord (in its capacity as the fee or leasehold owner, as applicable, of the Property) is entitled to request, consent to, exercise or approve under such S/B REA (each of the foregoing, an “REA Action”), subject to the following conditions: (i) not less than ten (10) days prior to the effective date of any proposed REA Action, Tenant shall provide Landlord with Notice thereof (which shall include a copy of any applicable draft amendment, modification or other document memorializing such REA Action), and an opportunity to consult with Tenant with respect thereto and (ii) if such REA Action would: (A) restrict, impair or intentionally interfere with Landlord’s right to Transfer or finance all or any portion of the applicable Demised Premises or Property Document during the Term; (B) restrict, impair or intentionally interfere with Landlord’s right to Transfer, finance, improve, develop, redevelop, demolish or otherwise use and enjoy the applicable Demised Premises or Property upon the Expiration Date or any earlier Property Termination Date under this Lease; (C) modify or grant any purchase option or other similar preferential right (including, without limitation, any right of first refusal, or right of first offer, to purchase) with respect to the applicable Demised Premises or Property; (D) terminate, extend the term of, or otherwise amend, modify or alter the expiration or termination provisions of such S/B REA; (E) have any material adverse effect on ingress or egress to or from, or the visibility of, the applicable Property; (F) occur or take effect after the applicable Landlord Option Exercise Date, if the applicable Property is a Landlord Option Property; or (G) increase in any material respect Landlord’s obligations, or decrease in any material respect Landlord’s rights, under such S/B REA, then, in the case of each of the foregoing, Landlord’s prior written consent shall be required, which consent shall be granted or withheld (1) in Landlord’s commercially reasonable judgment in the case of any REA Action described in clauses (A), (B), (C), (D), (F) and (G) above and (2) in Landlord’s sole discretion in the case of any REA Action described in clause (E) above. (c) Landlord shall have the right from time to time to take or enter into any REA Action (i) with respect to any S/B REA to the extent reasonably necessary or desirable in connection with Landlord’s ownership, use, enjoyment, access, Transfer, financing or refinancing of, or with respect to, the related S/B Property (provided that Landlord shall not take any such REA Action with respect to an S/B REA if the same would undo, prevent or intentionally interfere with (A) Tenant’s right to take REA Actions in accordance with (and subject to the terms of) Section 7.3(b) or (B) any REA Action previously taken or proposed to be taken in writing by Tenant and, to the extent Landlord’s approval was required hereunder, approved by Landlord, in each case, in accordance with (and subject to the terms of) Section 7.3(b)) or (ii) with respect to any REA that relates to a Property that is not an S/B Property (a “Non-S/B REA”); provided, however, that not less than ten (10) days prior to the effective date of any such proposed REA Action, Landlord shall provide Tenant with Notice thereof (which shall include a copy of any applicable draft amendment, modification or other document memorializing such Property Document REA Action), and as well as an opportunity to consult with Landlord with respect thereto and (ii) Tenant’s prior written consent shall be required with respect to any such Property Document Action thereto, and, if such Property Document proposed REA Action would: would (Ai) have any material adverse effect on any access (including for inbound and outbound trailers), parking, ingress or egress to or from (including the modification of any entry or exit points)from, or the visibility of, the applicable Demised Premises or Property; Property or (Bii) increase in any material respect Tenant’s obligations (unless such increased obligations are monetary and Landlord agrees for itself and its successors and assigns to be responsible for such increased monetary obligations), or decrease in any material respect Tenant’s rights, under such Property Document REA or this Lease. If , then Tenant’s prior written consent shall be required with respect to a Property Document Action pursuant to the immediately preceding sentencethereto, such which consent shall be granted or withheld in Tenant’s sole discretion in the case of any REA Action described in clause (1i) above and shall be granted or withheld in Tenant’s commercially reasonable judgment in the case of any Property Document REA Action described in clause (Bii) above above. Promptly following the execution and delivery thereof, Landlord shall provide Tenant with a copy of any executed documentation relating to any such REA Action. Notwithstanding the foregoing, for the avoidance of doubt, Tenant shall not take or enter into any REA Action with respect to any Non-S/B REA without Landlord’s prior written consent, which consent may be granted or withheld in Landlord’s sole discretion. (d) Notwithstanding anything to the contrary in this Lease, Tenant shall not Go Dark (i) at any time during the Term with respect to any Property if the same shall violate the terms and conditions of any applicable Property Document in any material respect or (ii) solely with respect to the Baybrook Property and the Coral Ridge Property (each, a “Baybrook/Coral Ridge Property”), at any time prior to the second (2nd) anniversary of the PropCo Closing Date unless the Counterparty (a “Baybrook/Coral Ridge Counterparty”) under the Ground Lease relating to the Baybrook Property and the REA relating to the Coral Ridge Property (each, a “Baybrook/Coral Ridge Property Document”), as applicable, waives in writing pursuant to documentation reasonably satisfactory to Landlord such Counterparty’s option under the applicable Baybrook/Coral Ridge Property Document to acquire Landlord’s right, title and interest in and to such Baybrook/Coral Ridge Property (as applicable, the “Purchase Option”) (the “Baybrook/Coral Ridge Lockout Period”). Following the expiration of the Baybrook/Coral Ridge Lockout Period, prior to Going Dark at any Baybrook/Coral Ridge Property (a “Baybrook/Coral Ridge Go Dark Event”), Tenant shall give Landlord not less than thirty (30) days’ Notice thereof. If any Baybrook/Coral Ridge Go Dark Event shall occur and such Baybrook/Coral Ridge Go Dark Event activates or triggers a Purchase Option in favor of the applicable Counterparty (which Purchase Option such Counterparty exercises and does not waive or gives Notice to such Party that it intends to exercise and/or not waive), then either Party shall, promptly after receiving notice or becoming aware thereof, provide Notice to the other Party of the same as well as a copy of any determination by such Baybrook/Coral Ridge Counterparty of the purchase price for the applicable Baybrook/Coral Ridge Property (the “Counterparty Purchase Price”), together with any appraisals or other documentation provided by such Baybrook/Coral Ridge Counterparty to determine the underlying fair market value (the “Counterparty FMV”). Upon receipt of any such Notice, notwithstanding anything to the contrary in the applicable Baybrook/Coral Ridge Property Document, at Landlord’s election exercised in its sole discretion upon Notice to Tenant (the “Landlord-Tenant FMV Notice”), the Parties shall determine the Landlord-Tenant FMV of such Baybrook/Coral Ridge Property in accordance with the procedures, terms and conditions set forth on Schedule 7.3(d) attached hereto, including, for the avoidance of doubt, the assumption, as set forth on such Schedule, that such Baybrook/Coral Ridge Property shall be used for the Highest and Best Use. In the event that, following its exercise of a Purchase Option, the applicable Baybrook/Coral Ridge Counterparty, either by itself or through any of its Affiliates, consummates the exercise of the Purchase Option and acquires the applicable Baybrook/Coral Ridge Property: (I) if the Landlord-Tenant FMV (if applicable) is more than five percent (5%) higher than the Counterparty FMV, then Tenant shall pay to Landlord an amount equal to the positive difference between such Counterparty FMV and Landlord-Tenant FMV (the “FMV Differential”) on or prior to the closing of such acquisition (the “Baybrook/Coral Ridge Closing”), or promptly after the Baybrook/Coral Ridge Closing if Landlord is required to close before the Landlord-Tenant FMV is determined pursuant to the terms of Schedule 7.3(d); (II) if the Counterparty FMV is more than five percent (5%) higher than the Landlord-Tenant FMV, then Landlord shall pay to Tenant an amount equal to such FMV Differential on or prior to the Baybrook/Coral Ridge Closing, or promptly after the Baybrook/Coral Ridge Closing if Landlord is required to close before the Landlord-Tenant FMV is determined pursuant to Schedule 7.3(d); and (2III) if the difference between the Counterparty FMV and the Landlord-Tenant FMV is five percent (5%) or less, then neither Party shall have any obligation to pay to the other Party the amount of any such FMV Differential. The provisions hereof (x) shall apply to each Baybrook/Coral Ridge Property so long as (and only for so long as) Simon (or any of its Affiliates) or Brookfield (or any of its Affiliates) owns any direct or indirect equity interest in Tenant’s sole discretion such Baybrook/Coral Ridge Counterparty and such Person(s) also own a direct or indirect equity interest in Tenant (it being agreed that, with respect to any Baybrook/Coral Ridge Property, if only Simon (or any of its Affiliates) owns a direct or indirect equity interest in Tenant and only Brookfield (or any of its Affiliates) owns a direct or indirect equity interest in the case applicable Baybrook/Coral Ridge Counterparty, then the provisions set forth above shall not be applicable) and (y) for the avoidance of any doubt, shall no longer apply if the Purchase Option under the applicable Baybrook/Coral Ridge Property Document Action described in clause (A) aboveis no longer exercisable.