Ground Lease Covenants. (a) With respect to each Ground Lease, (a) Borrower shall cause each Mortgage Borrower that is the holder of the leasehold interest under such Ground Lease to (i) pay all rents, additional rents and other sums required to be paid by such Mortgage Borrower, as tenant under and pursuant to the provisions of such Ground Lease, (ii) diligently perform and observe in all material respects all of the terms, covenants and conditions of such Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord under such Ground Lease to such Mortgage Borrower of any default by such Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under such Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Borrower’s receipt. Borrower shall not, without the prior consent of Lender, cause such Mortgage Borrower to surrender the leasehold estate created by such Ground Lease or terminate or cancel such Ground Lease or modify, change, supplement, alter or amend such Ground Lease in any material respect, either orally or in writing, and if such Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of such Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Borrower shall permit Lender to have the right to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Ground Lease on the part of such Mortgage Borrower to be performed or observed on behalf of Borrower, to the end that the rights of such Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under such Ground Lease shall deliver to Lender a copy of any notice of default under such Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause such Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of such Ground Lease upon written demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Archstone Smith Operating Trust), Mezzanine Loan Agreement (Archstone Smith Operating Trust)
Ground Lease Covenants. Without limitation of the other provisions herein (a) With including, without limitation, Section 4.22 hereof), each Borrower makes the following covenants with respect to each Ground Lease, :
(a) Borrower shall cause each Mortgage Borrower that is the holder of the leasehold interest under such Ground Lease to (i) pay (or cause to be paid) all rents, additional rents and other sums required to be paid by such Mortgage Borrower, as tenant under and pursuant to the provisions of such each Ground Lease, (ii) diligently perform and observe in all material respects (or cause to be performed and observed) all of the terms, covenants and conditions of such each Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord under such any Ground Lease to such Mortgage Borrower of any default by such Mortgage Borrower, as tenant thereunder, Borrower and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt receipt, and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under such any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Mortgage Borrower’s receipt. .
(b) Borrower shall notnot permit Mortgage Borrower, Mezzanine A Borrower or Mezzanine B Borrower to, without the prior consent of LenderLender (which consent shall not be unreasonably withheld in the case of clause (ii) of this subsection (b)), cause such Mortgage Borrower to (i) surrender the leasehold estate created by such any Ground Lease or terminate or cancel such any Ground Lease or (ii) modify, change, supplement, alter or amend such any Ground Lease in any material respectLease, either orally or in writingwriting (provided that Lender’s consent shall not be required for any modification of any Ground Lease that extends its term but does not change any of its other terms and conditions (other than to a de minimis extent)), and if such Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of such any Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, Borrower and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Borrower Lender shall permit Lender to have the right right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Ground Lease on the part of such Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of such Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under such any Ground Lease shall deliver to Lender a copy of any notice of default under such Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. .
(c) Borrower shall cause such Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease within sixty (60) days prior to the expiration of such Ground Lease upon written demand by Lender made at any time within one (1the “Renewal Deadline”) year (unless such option is not permitted to be exercised until after a date that is sixty (60) days prior to the last day upon expiration of such Ground Lease, in which instance Mortgage Borrower shall exercise each individual option on the earliest permitted date), and, subject to the terms of the Mortgage Loan Documents, Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower to cause Mortgage Borrower, Mezzanine A Borrower or Mezzanine B Borrower to take such action, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Borrower’s failure to cause Mortgage Borrower to exercise the aforesaid renewal option within the aforesaid period shall, at Lender’s option, constitute an immediate Event of Default hereunder.
(d) Notwithstanding anything contained in any Ground Lease to the contrary, Borrower shall not permit Mortgage Borrower, Mezzanine A Borrower or Mezzanine B Borrower to, without prior written consent of Lender, sublet any portion of the leasehold estate created by the Ground Lease except in accordance with the express terms and conditions of this Agreement.
(e) In the event that, pursuant to Section 4.17(b) of that certain Ground Lease, dated November 29, 2007, between Mortgage Borrower and Catholic Health Initiatives Colorado, a nonprofit Colorado corporation d/b/a St. Anthxxx Xxxxx Xxxpital (the “St. Anthxxx Xxxund Lease”), the applicable Fee Owner elects to terminate the St. Anthxxx Xxxund Lease because Mortgage Borrower does not agree to bear any remedial expenses (with respect to contamination of the Leased Land, as defined in the St. Anthxxx Xxxund Lease, existing as of the Lease Commencement Date, as defined in the St. Anthxxx Xxxund Lease) in excess of $100,000.00, then (i) such termination shall be a Property Document Event, and an Event of Default pursuant to Section 10.1(t) hereof, provided, however, that Borrower may avoid the occurrence of such Event of Default by prepaying the Loan within fifteen (15) Business Days of such termination of the St. Anthxxx Xxxund Lease in accordance with the terms and conditions of Section 2.7 hereof, in an amount equal to the Release Price for the applicable portion of the equity Collateral associated with the Individual Property subject to the St. Anthxxx Xxxund Lease together with any other amounts which would be exerciseddue or payable in connection with the Release of the applicable portion of the equity Collateral associated with such Individual Property pursuant to Section 2.10 hereof, and (ii) such termination shall be deemed to be a “voluntary termination” of the St. Anthxxx Xxxund Lease for the purpose of Section 13.1(a)(xi) hereof, unless Borrower shall prepay the Loan in accordance with the foregoing clause (i).
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Northstar Realty Finance Corp.), Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.)
Ground Lease Covenants. Without limitation of the other provisions herein (a) With including, without limitation, Section 4.22 hereof), each Borrower makes the following covenants with respect to each Ground Lease, :
(a) Borrower shall cause each Mortgage Borrower that is the holder of the leasehold interest under such Ground Lease to (i) pay (or cause to be paid) all rents, additional rents and other sums required to be paid by such Mortgage Borrower, as tenant under and pursuant to the provisions of such each Ground Lease, (ii) diligently perform and observe in all material respects (or cause to be performed and observed) all of the terms, covenants and conditions of such each Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord under such any Ground Lease to such Mortgage Borrower of any default by such Mortgage Borrower, as tenant thereunder, Borrower and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt receipt, and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under such any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Mortgage Borrower’s receipt. .
(b) Borrower shall notnot permit Mortgage Borrower to, without the prior consent of LenderLender (which consent shall not be unreasonably withheld in the case of clause (ii) of this subsection (b)), cause such Mortgage Borrower to (i) surrender the leasehold estate created by such any Ground Lease or terminate or cancel such any Ground Lease or (ii) modify, change, supplement, alter or amend such any Ground Lease in any material respectLease, either orally or in writingwriting (provided that Lender’s consent shall not be required for any modification of any Ground Lease that extends its term but does not change any of its other terms and conditions (other than to a de minimis extent)), and if such Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of such any Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, Borrower and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Borrower Lender shall permit Lender to have the right right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Ground Lease on the part of such Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of such Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under such any Ground Lease shall deliver to Lender a copy of any notice of default under such Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. .
(c) Borrower shall cause such Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease within sixty (60) days prior to the expiration of such Ground Lease upon written demand by Lender made at any time within one (1the “Renewal Deadline”) year (unless such option is not permitted to be exercised until after a date that is sixty (60) days prior to the last day upon expiration of such Ground Lease, in which instance Mortgage Borrower shall exercise each individual option on the earliest permitted date), and, subject to the terms of the Mortgage Loan Documents, Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower to cause Mortgage Borrower to take such action, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Borrower’s failure to cause Mortgage Borrower to exercise the aforesaid renewal option within the aforesaid period shall, at Lender’s option, constitute an immediate Event of Default hereunder.
(d) Notwithstanding anything contained in any Ground Lease to the contrary, Borrower shall not permit Mortgage Borrower to, without prior written consent of Lender, sublet any portion of the leasehold estate created by the Ground Lease except in accordance with the express terms and conditions of this Agreement.
(e) In the event that, pursuant to Section 4.17(b) of that certain Ground Lease, dated November 29, 2007, between Mortgage Borrower and Catholic Health Initiatives Colorado, a nonprofit Colorado corporation d/b/a St. Anthxxx Xxxxx Xxxpital (the “St. Anthxxx Xxxund Lease”), the applicable Fee Owner elects to terminate the St. Anthxxx Xxxund Lease because Mortgage Borrower does not agree to bear any remedial expenses (with respect to contamination of the Leased Land, as defined in the St. Anthxxx Xxxund Lease, existing as of the Lease Commencement Date, as defined in the St. Anthxxx Xxxund Lease) in excess of $100,000.00, then (i) such termination shall be a Property Document Event, and an Event of Default pursuant to Section 10.1(t) hereof, provided, however, that Borrower may avoid the occurrence of such Event of Default by prepaying the Loan within fifteen (15) Business Days of such termination of the St. Anthxxx Xxxund Lease in accordance with the terms and conditions of Section 2.7 hereof, in an amount equal to the Release Price for the applicable portion of the equity Collateral associated with the Individual Property subject to the St. Anthxxx Xxxund Lease together with any other amounts which would be exerciseddue or payable in connection with the Release of the applicable portion of the equity Collateral associated with such Individual Property pursuant to Section 2.10 hereof, and (ii) such termination shall be deemed to be a “voluntary termination” of the St. Anthxxx Xxxund Lease for the purpose of Section 13.1(a)(xi) hereof, unless Borrower shall prepay the Loan in accordance with the foregoing clause (i).
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Northstar Realty Finance Corp.), Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.)
Ground Lease Covenants. Without limitation of the other provisions herein (a) With including, without limitation, Section 4.22 hereof), each Borrower makes the following covenants with respect to each Ground Lease, :
(a) Borrower shall cause each Mortgage Borrower that is the holder of the leasehold interest under such Ground Lease to (i) pay (or cause to be paid) all rents, additional rents and other sums required to be paid by such Mortgage Borrower, as tenant under and pursuant to the provisions of such each Ground Lease, (ii) diligently perform and observe in all material respects (or cause to be performed and observed) all of the terms, covenants and conditions of such each Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord under such any Ground Lease to such Mortgage Borrower of any default by such Mortgage Borrower, as tenant thereunder, Borrower and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt receipt, and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under such any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Borrower’s receipt. .
(b) Borrower shall not, without the prior consent of LenderLender (which consent shall not be unreasonably withheld in the case of clause (ii) of this subsection (b)), cause such Mortgage Borrower to (i) surrender the leasehold estate created by such any Ground Lease or terminate or cancel such any Ground Lease or (ii) modify, change, supplement, alter or amend such any Ground Lease in any material respectLease, either orally or in writingwriting (provided that Lender’s consent shall not be required for any modification of any Ground Lease that extends its term but does not change any of its other terms and conditions (other than to a de minimis extent)), and if such Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of such any Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, Borrower and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Borrower Lender shall permit Lender to have the right right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Ground Lease on the part of such Mortgage Borrower to be performed or observed on behalf of Borrower, to the end that the rights of such Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under such any Ground Lease shall deliver to Lender a copy of any notice of default under such Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. .
(c) Borrower shall cause such Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease within sixty (60) days prior to the expiration of such Ground Lease upon written demand by Lender made at any time within one (1the “Renewal Deadline”) year (unless such option is not permitted to be exercised until after a date that is sixty (60) days prior to the last day upon expiration of such Ground Lease, in which instance Borrower shall exercise each individual option on the earliest permitted date), and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Borrower’s failure to exercise the aforesaid renewal option within the aforesaid period shall, at Lender’s option, constitute an immediate Event of Default hereunder.
(d) Notwithstanding anything contained in any Ground Lease to the contrary, Borrower shall not, without prior written consent of Lender, sublet any portion of the leasehold estate created by the Ground Lease except in accordance with the express terms and conditions of this Agreement.
(e) In the event that, pursuant to Section 4.17(b) of that certain Ground Lease, dated November 29, 2007, between Borrower and Catholic Health Initiatives Colorado, a nonprofit Colorado corporation d/b/a St. Xxxxxxx Xxxxx Hospital (the “St. Xxxxxxx Ground Lease”), the applicable Fee Owner elects to terminate the St. Xxxxxxx Ground Lease because Borrower does not agree to bear any remedial expenses (with respect to contamination of the Leased Land, as defined in the St. Xxxxxxx Ground Lease, existing as of the Lease Commencement Date, as defined in the St. Xxxxxxx Ground Lease) in excess of $100,000.00, then (i) such termination shall be a Property Document Event, and an Event of Default pursuant to Section 10.1(t) hereof, provided, however, that Borrower may avoid the occurrence of such Event of Default by prepaying the Loan within fifteen (15) Business Days of such termination of the St. Xxxxxxx Ground Lease in accordance with the terms and conditions of Section 2.7 hereof, in an amount equal to the Release Price for the Individual Property subject to the St. Xxxxxxx Ground Lease together with any other amounts which would be exerciseddue or payable in connection with the Release of such Individual Property pursuant to Section 2.10 hereof, and (ii) such termination shall be deemed to be a “voluntary termination” of the St. Xxxxxxx Ground Lease for the purpose of Section 13.1(a)(xi) hereof, unless Borrower shall prepay the Loan in accordance with the foregoing clause (i).
Appears in 2 contracts
Samples: Loan Agreement (NorthStar Healthcare Income, Inc.), Loan Agreement (Northstar Realty Finance Corp.)
Ground Lease Covenants. (a) With Without limitation of the other provisions herein, Bxxxxxxx makes the following covenants with respect to each Ground Lease, :
(a) Borrower shall cause each Mortgage Borrower that is the holder of the leasehold interest under such Ground Lease to (i) pay (or shall cause any Tenant to pay, as applicable) all rents, additional rents and other sums required to be paid by such Mortgage Borrower, as tenant under and pursuant to the provisions of such the Ground Lease, (ii) diligently perform and observe (or cause to be performed and observed) in all material respects all of the terms, covenants and conditions of such the Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of any change in the instructions regarding the payment of Ground Rent (the “Payment Instructions”) and of the giving of any notice by the landlord under such the Ground Lease to such Mortgage Borrower of any default by Borrower and shall, within five (5) Business Days of receipt of such Mortgage Borrowernotice or change, as tenant thereunder, and (A) deliver to Lender a true copy of each such notice within five or evidence of such change (5as applicable) Business Days and (B) in the case of receipt a change in the Payment Instructions, deliver to Lender a new IRS Form W9 with respect to the landlord under the Ground Lease (or evidence reasonably acceptable to Lender that the IRS Form W9 with respect to the landlord under the Ground Lease then held by Lxxxxx remains accurate and valid) and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under such the Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Borrower’s receipt. .
(b) Borrower shall not, without the prior consent of Lender, cause such Mortgage Borrower to surrender the leasehold estate created by such the Ground Lease or terminate or cancel such the Ground Lease or modify, change, supplement, alter or amend such the Ground Lease in any material respectLease, either orally or in writing, and if such Mortgage Borrower shall default in the performance or observance of any material term, covenant or condition of such the Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, Borrower and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Borrower Lender shall permit Lender to have the right right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such the Ground Lease on the part of such Mortgage Borrower to be performed or observed on behalf of Borrower, to the end that the rights of such Mortgage Borrower in, to and under such the Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under such the Ground Lease shall deliver to Lender a copy of any notice of default under such the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by LenderLxxxxx, in good faith, in reliance thereon. Without the prior written consent of Lender, Borrower shall cause not permit any Borrower Party or any Affiliate of any Borrower Party to acquire the fee interest in the Property (the “Fee Acquisition”); provided that Borrower may enter into a Fee Acquisition and terminate the Ground Lease so long as (i) the lien of the applicable Security Instruments shall be spread to cover such Mortgage fee title, (ii) Borrower, at its sole cost and expense, including without limitation, Lender’s reasonable attorney’s fees, (A) executes any and all documents or instruments necessary to subject the foregoing interest to the lien of the applicable Security Instrument; and (B) provides a title insurance policy or endorsement which shall insure that the lien of the applicable Security Instrument is a first lien on such interest, subject to the Permitted Encumbrances, and (iii) Borrower to delivers a REMIC Opinion in connection with such Fee Acquisition.
(c) Borrower shall exercise each individual option, if any, to extend or renew the term of the Ground Lease prior to the applicable deadline set forth in such Ground Lease upon written demand by (the “Renewal Deadline”), and Borrower hereby expressly authorizes and appoints Lender made at any time within one (1) year prior its attorney-in-fact to the last day upon which exercise any such option may in the name of and upon behalf of Borrower, which power of attorney shall be exercisedirrevocable and shall be deemed to be coupled with an interest. Additionally, promptly following written request by Lxxxxx, Borrower shall deliver to Lender an original executed but undated notice to the landlord under the Ground Lease exercising Borrower’s renewal rights thereunder (such notice, the “Renewal Notice”). Borrower hereby irrevocably grants Lender the right to date and transmit the Renewal Notice to the landlord under the Ground Lease; provided, however, Lender shall only do so if, as of the Renewal Deadline, Lender is not in receipt of evidence reasonably acceptable to Lender that Borrower has exercised its right to renew the Ground Lease.
(d) Notwithstanding anything contained in the Ground Lease to the contrary, Borrower shall not, without prior written consent of Lender, sublet any portion of the leasehold estate created by the Ground Lease except pursuant to any existing Lease or new Lease executed in accordance with the express terms and conditions of this Agreement.
Appears in 2 contracts
Samples: Loan Agreement (Industrial Logistics Properties Trust), Loan Agreement (Industrial Logistics Properties Trust)
Ground Lease Covenants. Without limitation of the other provisions herein (a) With including, without limitation, Section 4.22 hereof), each Borrower makes the following covenants with respect to each Ground Lease, :
(a) Borrower shall cause each Mortgage Borrower that is the holder of the leasehold interest under such Ground Lease to (i) pay (or cause to be paid) all rents, additional rents and other sums required to be paid by such Mortgage Borrower, as tenant under and pursuant to the provisions of such each Ground Lease, (ii) diligently perform and observe in all material respects (or cause to be performed and observed) all of the terms, covenants and conditions of such each Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord under such any Ground Lease to such Mortgage Borrower of any default by such Mortgage Borrower, as tenant thereunder, Borrower and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt receipt, and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under such any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Mortgage Borrower’s receipt. .
(b) Borrower shall notnot permit Mortgage Borrower or Mezzanine A Borrower to, without the prior consent of LenderLender (which consent shall not be unreasonably withheld in the case of clause (ii) of this subsection (b)), cause such Mortgage Borrower to (i) surrender the leasehold estate created by such any Ground Lease or terminate or cancel such any Ground Lease or (ii) modify, change, supplement, alter or amend such any Ground Lease in any material respectLease, either orally or in writingwriting (provided that Lender’s consent shall not be required for any modification of any Ground Lease that extends its term but does not change any of its other terms and conditions (other than to a de minimis extent)), and if such Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of such any Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, Borrower and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Borrower Lender shall permit Lender to have the right right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Ground Lease on the part of such Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of such Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under such any Ground Lease shall deliver to Lender a copy of any notice of default under such Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. .
(c) Borrower shall cause such Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease within sixty (60) days prior to the expiration of such Ground Lease upon written demand by Lender made at any time within one (1the “Renewal Deadline”) year (unless such option is not permitted to be exercised until after a date that is sixty (60) days prior to the last day upon expiration of such Ground Lease, in which instance Mortgage Borrower shall exercise each individual option on the earliest permitted date), and, subject to the terms of the Mortgage Loan Documents, Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower to cause Mortgage Borrower or Mezzanine A Borrower to take such action, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Borrower’s failure to cause Mortgage Borrower to exercise the aforesaid renewal option within the aforesaid period shall, at Lender’s option, constitute an immediate Event of Default hereunder.
(d) Notwithstanding anything contained in any Ground Lease to the contrary, Borrower shall not permit Mortgage Borrower or Mezzanine A Borrower to, without prior written consent of Lender, sublet any portion of the leasehold estate created by the Ground Lease except in accordance with the express terms and conditions of this Agreement.
(e) In the event that, pursuant to Section 4.17(b) of that certain Ground Lease, dated November 29, 2007, between Mortgage Borrower and Catholic Health Initiatives Colorado, a nonprofit Colorado corporation d/b/a St. Anthony Xxxxx Xxxxxxxl (the “St. Anthony Xxxxxx Lease”), the applicable Fee Owner elects to terminate the St. Anthony Xxxxxx Lease because Mortgage Borrower does not agree to bear any remedial expenses (with respect to contamination of the Leased Land, as defined in the St. Anthony Xxxxxx Lease, existing as of the Lease Commencement Date, as defined in the St. Anthony Xxxxxx Lease) in excess of $100,000.00, then
(i) such termination shall be a Property Document Event, and an Event of Default pursuant to Section 10.1(t) hereof, provided, however, that Borrower may avoid the occurrence of such Event of Default by prepaying the Loan within fifteen (15) Business Days of such termination of the St. Anthony Xxxxxx Lease in accordance with the terms and conditions of Section 2.7 hereof, in an amount equal to the Release Price for the applicable portion of the equity Collateral associated with the Individual Property subject to the St. Anthony Xxxxxx Lease together with any other amounts which would be exerciseddue or payable in connection with the Release of the applicable portion of the equity Collateral associated with such Individual Property pursuant to Section 2.10 hereof, and (ii) such termination shall be deemed to be a “voluntary termination” of the St. Anthony Xxxxxx Lease for the purpose of Section 13.1(a)(xi) hereof, unless Borrower shall prepay the Loan in accordance with the foregoing clause (i).
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Northstar Realty Finance Corp.), Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.)
Ground Lease Covenants. (a) With Without limitation of the other provisions herein, Borrower shall cause Mortgage Borrower to comply with the following covenants with respect to each Ground Lease, :
(a) Borrower shall cause each Mortgage Borrower that is the holder of the leasehold interest under such Ground Lease to (i) pay (or shall cause Mortgage Borrower to cause any Tenant to pay, as applicable) all rents, additional rents and other sums required to be paid by such the applicable Individual Mortgage Borrower, as tenant under and pursuant to the provisions of such the Ground Lease, (ii) diligently perform and observe (or cause to be performed and observed) in all material respects all of the terms, covenants and conditions of such the Ground Lease on the part of such the applicable Individual Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of any change in the instructions regarding the payment of Ground Rent (the “Payment Instructions”) and of the giving of any notice by the landlord under such the Ground Lease to such Borrower or Mortgage Borrower of any default by the applicable Individual Mortgage Borrower and shall, within five (5) Business Days of receipt of such Mortgage Borrowernotice or change, as tenant thereunder, and (A) deliver to Lender a true copy of each such notice within five or evidence of such change (5as applicable) Business Days and (B) in the case of receipt a change in the Payment Instructions, deliver to Lender a new IRS Form W9 with respect to the landlord under the Ground Lease (or evidence reasonably acceptable to Lender that the IRS Form W9 with respect to the landlord under the Ground Lease then held by Lender remains accurate and valid) and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under such the Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Borrower’s or Mortgage Borrower’s receipt. .
(b) Borrower shall notnot cause or permit Mortgage Borrower to, without the prior consent of Lender, cause such Mortgage Borrower to surrender the leasehold estate created by such the Ground Lease or terminate or cancel such the Ground Lease or modify, change, supplement, alter or amend such the Ground Lease in any material respectLease, either orally or in writing, and if such the applicable Individual Mortgage Borrower shall default in the performance or observance of any material term, covenant or condition of such the Ground Lease on the part of such the applicable Individual Mortgage Borrower, as tenant thereunder, Borrower and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Borrower subject to the rights of Mortgage Administrative Agent under the Mortgage Loan Documents, Lender shall permit Lender to have the right right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such the Ground Lease on the part of such the applicable Individual Mortgage Borrower to be performed or observed on behalf of the applicable Individual Mortgage Borrower, to the end that the rights of such the applicable Individual Mortgage Borrower in, to and under such the Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under such the Ground Lease shall deliver to Lender a copy of any notice of default under such the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by LenderLxxxxx, in good faith, in reliance thereon. Without the prior written consent of Lender, Borrower shall not permit any Borrower Party or any Affiliate of any Borrower Party to acquire the fee interest in the Property (the “Fee Acquisition”); provided that Borrower may permit the applicable Individual Mortgage Borrower to enter into a Fee Acquisition and terminate the Ground Lease so long as Borrower causes Mortgage Borrower, at its sole cost and expense, to comply with the terms of the Mortgage Loan Documents and provide evidence thereof to Lender in form and substance satisfactory to Lender.
(c) Borrower shall cause such Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease prior to the applicable deadline set forth in such Ground Lease upon written demand by Lender made at any time within one (1) year prior the “Renewal Deadline”), and, subject to the last day upon which rights of Mortgage Administrative Agent under the Mortgage Loan Documents, Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option may in the name of and upon behalf of Borrower and/or the applicable Individual Mortgage Borrower, which power of attorney shall be exercisedirrevocable and shall be deemed to be coupled with an interest. Additionally, promptly following written request by Lxxxxx, and subject to the rights of Mortgage Administrative Agent under the Mortgage Loan Documents, Borrower shall deliver to Lender an original executed but undated notice to the landlord under the Ground Lease exercising the applicable Individual Mortgage Borrower’s renewal rights thereunder (such notice, the “Renewal Notice”). Subject to the rights of Mortgage Administrative Agent under the Mortgage Loan Documents, Borrower hereby irrevocably grants Lender the right to date and transmit the Renewal Notice to the landlord under the Ground Lease; provided, however, Lender shall only do so if, as of the Renewal Deadline, Lender is not in receipt of evidence reasonably acceptable to Lender that the applicable Individual Mortgage Borrower has exercised its right to renew the Ground Lease.
(d) Notwithstanding anything contained in the Ground Lease to the contrary, Borrower shall not cause or permit Mortgage Borrower to, without prior written consent of Lender, sublet any portion of the leasehold estate created by the Ground Lease except pursuant to any existing Lease or new Lease executed in accordance with the express terms and conditions of this Agreement.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Industrial Logistics Properties Trust)
Ground Lease Covenants. Grantor hereby acknowledges that Grantor's interest in the Property is a leasehold estate pursuant to that certain ground lease (a) With respect as assigned to each Grantor and amended, the "Ground Lease") dated as of _________________________, by and among _____________________ and __________________ (athe "Lessor"). In connection therewith, Grantor hereby covenants and agrees, as long as the Instrument encumbers the Property or any part thereof, as follows:
(1) Borrower Grantor shall cause each Mortgage Borrower that is not subordinate any or all of Grantor's interest in the holder Property to any mortgage, lien or other encumbrance on the Lessor's interest in the Property, without the express written consent of Lender;
(2) Grantor shall not convey any or all of its leasehold interest in the Lessor, nor shall Grantor purchase or otherwise acquire Lessor's interest in the Property, without the express written consent of Lender, which consent Lender agrees not to unreasonably withhold so long as Grantor executes and delivers to Lender such instruments, and takes such other steps, as Lender may require to ensure the continued perfection and priority of the leasehold interest lien created hereby upon and after Grantor's acquisition of Lessor's interest;
(3) The occurrence of a default by Grantor under such the Ground Lease to (ia "Lease Default") pay all rentsshall constitute an Event of Default under the Instrument. Upon the occurrence of a Lease Default, additional rents and other sums required to be paid by such Mortgage BorrowerLender, as tenant under and pursuant to the provisions of such Ground Leaseat Lender's option, (ii) diligently perform and observe in all material respects may exercise any or all of the termsremedies to which it may be entitled under the Instrument or any Collateral Agreement or other Loan Documents upon the breach of any covenant or agreement by Grantor under the Instrument, covenants and conditions of such Ground Lease on the part of such Mortgage Borrowerincluding, as tenant thereunderwithout limitation, (iii) promptly notify Lender all of the giving remedies set forth in Covenant 27 of any the Instrument and Paragraph I of the Rider to Multifamily Instrument;
(4) Grantor shall give immediate written notice by the landlord under such Ground Lease to such Mortgage Borrower Lender of any default by such Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of lessor under the landlord under such Ground Lease or of any notice thereofreceived by Grantor from such lessor of any Lease Default;
(5) Grantor shall not consent to any amendment to, or modification of, the Ground Lease, without the express written consent of Lender;
(6) Grantor shall exercise any option to renew or extend the Ground Lease and give written confirmation thereof to Lender within thirty days after such option becomes exercisable;
(7) Grantor shall not surrender the Ground Lease nor terminate or cancel the Ground Lease;
(8) Grantor shall give immediate written notice to Lender of the commencement of any remedial proceedings under the Ground Lease by any party thereto and, if required by Lender, shall permit Lender as Grantor's attorney-in-fact to control and act for Grantor in any such remedial proceedings; and
(9) Grantor shall, at the request of Lender, use commercially reasonable efforts to obtain and deliver to Lender an estoppel certificate from Lessor in the form reasonably requested by Lender within thirty days after such request from Lender. Grantor hereby expressly transfers and assigns to Lender the benefit of all covenants contained in the Ground Lease, whether or not such covenants run with the land, but Lender shall have no liability with respect to such covenants nor any other covenants contained in the Ground Lease. Grantor covenants and agrees that there shall not be a true copy merger of such notice within five (5) Business Days the Ground Lease, or of Borrower’s receipt. Borrower shall not, without the prior consent of Lender, cause such Mortgage Borrower to surrender the leasehold estate created thereby, with the fee estate covered by such the Ground Lease by reason of said leasehold estate or terminate said fee estate, or cancel such Ground Lease or modify, change, supplement, alter or amend such Ground Lease in any material respect, either orally or in writing, and if such Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of such Ground Lease on the part of such Mortgage Borrowereither, as tenant thereundercoming into common ownership, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Borrower shall permit Lender to have the right to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Ground Lease on the part of such Mortgage Borrower to be performed or observed on behalf of Borrower, to the end that the rights of such Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that unless Lender shall have no consent in writing to such obligation merger; if Grantor shall acquire such fee estate, then this Instrument shall simultaneously and without further action be spread so as to perform any become a lien on such actionsfee estate. If the landlord under such Ground Lease shall deliver to Lender a copy of any notice of default under such Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause such Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of such Ground Lease upon written demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised.[FOR VIRGINIA AND MARYLAND]
Appears in 1 contract
Samples: Deed of Trust (Town & Country Trust)
Ground Lease Covenants. (a) With Without limitation of the other provisions herein, Borrower makes the following covenants with respect to each Ground Lease, :
(a) Borrower shall cause each Mortgage Borrower that is the holder of the leasehold interest under such Ground Lease to (i) pay (or shall cause any Tenant to pay, as applicable) all rents, additional rents and other sums required to be paid by such Mortgage Borrower, as tenant under and pursuant to the provisions of such the Ground Lease, (ii) diligently perform and observe (or cause to be performed and observed) in all material respects all of the terms, covenants and conditions of such the Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender Administrative Agent of any change in the instructions regarding the payment of Ground Rent (the “Payment Instructions”) and of the giving of any notice by the landlord under such the Ground Lease to such Mortgage Borrower of any default by such Mortgage BorrowerBorrower and shall, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt of such notice or change, (A) deliver to Administrative Agent a true copy of each such notice or evidence of such change (as applicable) and (B) in the case of a change in the Payment Instructions, deliver to Administrative Agent a new IRS Form W9 with respect to the landlord under the Ground Lease (or evidence reasonably acceptable to Administrative Agent that the IRS Form W9 with respect to the landlord under the Ground Lease then held by Administrative Agent remains accurate and valid) and (iv) promptly notify Lender Administrative Agent of any bankruptcy, reorganization or insolvency of the landlord under such the Ground Lease or of any notice thereof, and deliver to Lender Administrative Agent a true copy of such notice within five (5) Business Days of Borrower’s receipt. .
(b) Borrower shall not, without the prior consent of LenderAdministrative Agent, cause such Mortgage Borrower to surrender the leasehold estate created by such the Ground Lease or terminate or cancel such the Ground Lease or modify, change, supplement, alter or amend such the Ground Lease in any material respectLease, either orally or in writing, and if such Mortgage Borrower shall default in the performance or observance of any material term, covenant or condition of such the Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, Borrower and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Borrower Administrative Agent shall permit Lender to have the right right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such the Ground Lease on the part of such Mortgage Borrower to be performed or observed on behalf of Borrower, to the end that the rights of such Mortgage Borrower in, to and under such the Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under such the Ground Lease shall deliver to Lender Administrative Agent a copy of any notice of default under such the Ground Lease, such notice shall constitute full protection to Lender Administrative Agent for any action taken or omitted to be taken by LenderAdministrative Agent, in good faith, in reliance thereon. Without the prior written consent of Administrative Agent, Borrower shall cause not permit any Borrower Party or any Affiliate of any Borrower Party to acquire the fee interest in the Property (the “Fee Acquisition”); provided that Borrower may enter into a Fee Acquisition and terminate the Ground Lease so long as (i) the lien of the applicable Security Instruments shall be spread to cover such Mortgage fee title, (ii) Borrower, at its sole cost and expense, including without limitation, Administrative Agent’s and Lender’s reasonable attorney’s fees, (A) executes any and all documents or instruments necessary to subject the foregoing interest to the lien of the applicable Security Instrument; and (B) provides a title insurance policy or endorsement which shall insure that the lien of the applicable Security Instrument is a first lien on such interest, subject to the Permitted Encumbrances, and (iii) Borrower to delivers a REMIC Opinion in connection with such Fee Acquisition.
(c) Borrower shall exercise each individual option, if any, to extend or renew the term of the Ground Lease prior to the applicable deadline set forth in such Ground Lease upon written demand by Lender made at any time within one (1) year prior the “Renewal Deadline”), and Borrower hereby expressly authorizes and appoints Administrative Agent its attorney-in-fact to the last day upon which exercise any such option may in the name of and upon behalf of Borrower, which power of attorney shall be exercisedirrevocable and shall be deemed to be coupled with an interest. Additionally, promptly following written request by Administrative Agent, Borrower shall deliver to Administrative Agent an original executed but undated notice to the landlord under the Ground Lease exercising Borrower’s renewal rights thereunder (such notice, the “Renewal Notice”). Borrower hereby irrevocably grants Administrative Agent the right to date and transmit the Renewal Notice to the landlord under the Ground Lease; provided, however, Administrative Agent shall only do so if, as of the Renewal Deadline, Administrative Agent is not in receipt of evidence reasonably acceptable to Administrative Agent that Borrower has exercised its right to renew the Ground Lease.
(d) Notwithstanding anything contained in the Ground Lease to the contrary, Borrower shall not, without prior written consent of Administrative Agent, sublet any portion of the leasehold estate created by the Ground Lease except pursuant to any existing Lease or new Lease executed in accordance with the express terms and conditions of this Agreement.
Appears in 1 contract
Samples: Loan Agreement (Industrial Logistics Properties Trust)
Ground Lease Covenants. Without limitation of the other provisions herein (a) With including, without limitation, Section 4.22 hereof), Borrower makes the following covenants with respect to each the Ground Lease, :
(a) Borrower shall cause each Mortgage Borrower that is the holder of the leasehold interest under such Ground Lease to (i) pay (or cause to be paid) all rents, additional rents and other sums required to be paid by such Mortgage Borrower, as tenant under and pursuant to the provisions of such the Ground Lease, (ii) diligently perform and observe in all material respects (or cause to be performed and observed) all of the terms, covenants and conditions of such the Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord under such the Ground Lease to such Borrower or Mortgage Borrower of any default by such Mortgage Borrower, as tenant thereunder, Borrower and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt receipt, and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under such the Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Borrower’s or Mortgage Borrower’s receipt. .
(b) Borrower shall not, without the prior consent of Lender, cause such Mortgage Borrower to surrender the leasehold estate created by such the Ground Lease or terminate or cancel such the Ground Lease or modify, change, supplement, alter or amend such the Ground Lease in any material respectLease, either orally or in writing, and if such Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of such the Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, Borrower and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Borrower shall permit Lender shall, subject to the rights of Mortgage Lender under the Mortgage Loan Documents and the rights of Mezzanine A Lender under the Mezzanine A Loan Documents, have the right right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such the Ground Lease on the part of such Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of such Mortgage Borrower in, to and under such the Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under such the Ground Lease shall deliver to Lender a copy of any notice of default under such the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. .
(c) Borrower shall cause such Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease no less than sixty (60) days prior to the expiration of such Ground Lease upon written demand by Lender made at any time within one (1) year prior the “Renewal Deadline”), and subject to the last day upon which rights of Mortgage Lender under the Mortgage Loan Documents and the rights of Mezzanine A Lender under the Mezzanine A Loan Documents, Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option may in the name of and upon behalf of Borrower to cause Mortgage Borrower to take such action, which power of attorney shall be exercisedirrevocable and shall be deemed to be coupled with an interest. Borrower’s failure to cause Mortgage Borrower to exercise the aforesaid renewal option within the aforesaid period shall, at Lender’s option, constitute an immediate Event of Default hereunder. Additionally, Borrower acknowledges that Borrower has delivered to Lender an original executed but undated notice to the landlord under the Ground Lease exercising Mortgage Borrower’s renewal rights thereunder (such notice, the “Renewal Notice”). Subject to the rights of Mortgage Lender under the Mortgage Loan Documents and the rights of Mezzanine A Lender under the Mezzanine A Loan Documents, Borrower hereby irrevocably grants Lender the right to date and transmit the Renewal Notice to the landlord under the Ground Lease; provided, however, Lender shall only do so if, as of the Renewal Deadline, Lender is not in receipt of evidence reasonably acceptable to Lender that Mortgage Borrower has exercised its right to renew the Ground Lease.
(d) Notwithstanding anything contained in the Ground Lease to the contrary, Borrower shall not, without prior written consent of Lender, cause Mortgage Borrower to sublet any portion of the leasehold estate created by the Ground Lease except in accordance with the express terms and conditions of this Agreement
Appears in 1 contract
Ground Lease Covenants. Without limitation of the other provisions herein (a) With including, without limitation, Section 4.22 hereof), Borrower makes the following covenants with respect to each the Ground Lease, :
(a) Borrower shall cause each Mortgage Borrower that is the holder of the leasehold interest under such Ground Lease to (i) pay (or cause to be paid) all rents, additional rents and other sums required to be paid by such Mortgage Borrower, as tenant under and pursuant to the provisions of such the Ground Lease, (ii) diligently perform and observe in all material respects (or cause to be performed and observed) all of the terms, covenants and conditions of such the Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord under such the Ground Lease to such Borrower or Mortgage Borrower of any default by such Mortgage Borrower, as tenant thereunder, Borrower and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt receipt, and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under such the Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Borrower’s receipt. or Mortgage Borrower’sreceipt.
(b) Borrower shall not, without the prior consent of Lender, cause such Mortgage Borrower to surrender the leasehold estate created by such the Ground Lease or terminate or cancel such the Ground Lease or modify, change, supplement, alter or amend such the Ground Lease in any material respectLease, either orally or in writing, and if such Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of such the Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, Borrower and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Borrower shall permit Lender shall, subject to the rights of Mortgage Lender under the Mortgage Loan Documents, have the right right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such the Ground Lease on the part of such Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of such Mortgage Borrower in, to and under such the Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under such the Ground Lease shall deliver to Lender a copy of any notice of default under such the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. .
(c) Borrower shall cause such Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease no less than sixty (60) days prior to the expiration of such Ground Lease upon written demand by Lender made at any time within one (1) year prior the “Renewal Deadline”), and subject to the last day upon which rights of Mortgage Lender under the Mortgage Loan Documents, Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option may in the name of and upon behalf of Borrower to cause Mortgage Borrower to take such action, which power of attorney shall be exercisedirrevocable and shall be deemed to be coupled with an interest. Borrower’s failure to cause Mortgage Borrower to exercise the aforesaid renewal option within the aforesaid period shall, at Lender’s option, constitute an immediate Event of Default hereunder. Additionally, Borrower acknowledges that Borrower has delivered to Lender an original executed but undated notice to the landlord under the Ground Lease exercising Mortgage Borrower’s renewal rights thereunder (such notice, the “Renewal Notice”). Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, Borrower hereby irrevocably grants Lender the right to date and transmit the Renewal Notice to the landlord under the Ground Lease; provided, however, Lender shall only do so if, as of the Renewal Deadline, Lender is not in receipt of evidence reasonably acceptable to Lender that Mortgage Borrower has exercised its right to renew the Ground Lease.
(d) Notwithstanding anything contained in the Ground Lease to the contrary, Borrower shall not, without prior written consent of Lender, cause Mortgage Borrower to sublet any portion of the leasehold estate created by the Ground Lease except in accordance with the express terms and conditions of this Agreement
Appears in 1 contract
Ground Lease Covenants. (a) With respect to each Ground Lease, :
(a) Borrower shall cause each Mortgage Borrower that is the holder of the leasehold interest under such Ground Lease to (i) pay all rentsshall, additional rents at Borrower’s sole cost and other sums required to be paid by such Mortgage Borrowerexpense, as tenant under promptly and pursuant to the provisions of such Ground Lease, (ii) diligently timely perform and observe in all the material respects all of the terms, covenants and conditions of such required to be performed and observed by Borrower as lessee under the Ground Lease on (including, but not limited to, the part payment of such Mortgage Borrowerall rent, as tenant thereunderadditional rent, (iii) promptly notify Lender percentage rent and other charges required to be paid under the Ground Lease). Borrower shall not provide any notice of non-renewal of the giving of any notice by the landlord under such Ground Lease to Ground Lessor.
(b) The actions or payments of Lender to cure any default by Borrower under the Ground Lease shall not remove or waive, as between Borrower and Lender, the default that occurred under this Agreement by virtue of the default by Borrower under the Ground Lease unless and until the Borrower shall have reimbursed Lender for all sums referenced in the immediately succeeding sentence and the applicable default shall have been cured. All sums expended by Lender to cure any such Mortgage default shall be paid by Borrower to Lender, upon demand, with interest on such sum at the rate set forth in this Agreement from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the related Security Instrument.
(c) Borrower shall notify Lender promptly in writing of the occurrence of any material default by Ground Lessor under the Ground Lease or following the receipt by Borrower of any written notice from Ground Lessor under the Ground Lease noting or claiming the occurrence of any default by such Mortgage BorrowerBorrower under the Ground Lease or the occurrence of any event that, as tenant thereunderwith the passage of time or service of notice, and or both, would constitute a default by Borrower under the Ground Lease. Borrower shall promptly deliver to Lender a true copy of each any such written notice of default.
(d) Upon written request from Lender and provided that Borrower shall not have notified Lender or does not notify Lender within five (5) Business Days of receipt and (iv) of such request of Lender, of its intent to release the Ground Leased Property in accordance with Section 2.10, Borrower shall promptly notify Lender of any bankruptcyexecute, reorganization or insolvency of the landlord under such Ground Lease or of any notice thereof, acknowledge and deliver to Lender a true copy of such notice within five (5) Business Days of Borrower’s receipt. Borrower shall not, without instruments as may reasonably be required to permit Lender to cure any default under the prior consent of Lender, cause such Mortgage Borrower to surrender the leasehold estate created by such Ground Lease or terminate or cancel such Ground Lease or modify, change, supplement, alter or amend such Ground Lease in any material respect, either orally or in writing, and if such Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of such Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Borrower shall permit Lender to have take such other action required to enable Lender to cure or remedy the matter in default and preserve the security interest of Lender under the Loan Documents with respect to each Ground Leased Property. Borrower irrevocably appoints Lender as its true and lawful attorney in fact to do, in its name or otherwise, unless Borrower has notified Lender of its intention to release the Ground Leased Property in accordance with Section 2.10, during the continuance of an Event of Default, any and all acts and to execute any and all documents that are necessary to preserve any rights of Borrower under or with respect to each Ground Lease, including, without limitation, the right to pay effectuate any sums and to perform any act extension or take any action as may be appropriate to cause all renewal of the terms, covenants and conditions of such Ground Lease on the part of such Mortgage Borrower to be performed or observed on behalf of Borrower, to the end that the rights of such Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under such Ground Lease shall deliver to Lender a copy of any notice of default under such each Ground Lease, such notice shall constitute full protection or to preserve any rights of Borrower whatsoever in respect of any part of each Ground Lease (and the above powers granted to Lender for any action taken or omitted to are coupled with an interest and shall be taken by Lender, in good faith, in reliance thereon. irrevocable).
(e) Borrower shall cause such Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of such the Ground Lease within the time periods prescribed under the applicable Ground Lease but under no circumstances later than the current expiration date under the terms of the Ground Lease (the “Renewal Deadline”), and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Xxxxxxxx’s failure to exercise the aforesaid renewal option within the aforesaid period shall, at Lender’s option, constitute an immediate Event of Default hereunder.
(f) Notwithstanding anything contained in the Ground Lease to the contrary, Borrower shall not, without prior written demand consent of Lender, sublet any portion of the leasehold estate created by Lender made the Ground Lease except in accordance with the express terms and conditions of this Agreement as is applicable to Leases.
(g) Notwithstanding anything to the contrary contained in this Agreement with respect to the Ground Lease:
(i) The lien of the related Security Instrument attaches to all of Xxxxxxxx’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, 11 U.S.C. Sections 101 et seq., including, without limitation, all of Borrower’s rights, as debtor, to remain in possession of the related Ground Leased Property.
(ii) Borrower shall not, without Xxxxxx’s prior written consent, elect to treat the Ground Lease as terminated under Subsection 365(h)(l) of the Bankruptcy Code. Any such election made without Xxxxxx’s prior written consent shall be void.
(iii) As security for the Debt, Borrower unconditionally assigns, transfers and sets over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by the lessor under the Ground Lease under the Bankruptcy Code. Lender and Xxxxxxxx shall proceed jointly or in the name of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of the Ground Lease, including, without limitation, the right to file and prosecute any proofs of claim, complaints, motions, applications, notices and other documents in any case in respect of lessor under the Bankruptcy Code. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until all of the Debt shall have been satisfied and discharged in full. Any amounts received by Lender or Borrower as damages arising out of the rejection of the Ground Lease as aforesaid shall be applied to all costs and expenses of Lender (including, without limitation, attorneys’ fees and costs) incurred in connection with the exercise of any of its rights or remedies in accordance with the applicable provisions of this Agreement.
(iv) If, pursuant to Subsection 365(h) of the Bankruptcy Code, Borrower seeks to offset, against the rent reserved in the Ground Lease, the amount of any damages caused by the nonperformance by the lessor of any of its obligations thereunder after the rejection by lessor of the Ground Lease under the Bankruptcy Code, then Borrower shall not affect any offset of such amounts unless it shall have provided written notice to Lender of its intent to do so and Lender shall have consented thereto (provided Lender shall be deemed to have consented thereto if it shall fail to object to the same in written notice to Borrower within one ten (110) year Business Days after receipt of the aforementioned notice in which case Borrower may proceed to offset the amounts set forth in Borrower’s notice).
(v) If any action, proceeding, motion or notice shall be commenced or filed in respect of any lessor of all or any part of the Ground Leased Property in connection with any case under the Bankruptcy Code, Lender and Borrower shall cooperatively conduct and control any such litigation with counsel agreed upon between Borrower and Lender in connection with such litigation. Borrower shall, upon demand, pay to Lender all reasonable actual out of pocket costs and expenses (including reasonable attorneys’ fees and costs) actually paid or actually incurred by Xxxxxx in connection with the cooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be secured by the lien of the related Security Instrument.
(vi) Borrower shall promptly, after obtaining knowledge of such filing notify Lender in writing of any filing by or against the lessor under the Ground Lease of a petition under the Bankruptcy Code, setting forth any information available to Borrower as to the date of such filing, the court in which such petition was filed, and the relief sought in such filing. Borrower shall promptly deliver to Lender any and all notices, summonses, pleadings, applications and other documents received by Borrower in connection with any such petition and any proceedings relating to such petition.
(vii) If Lender, its nominee, designee, successor, or assignee acquires title and/or rights of Borrower under the Ground Lease by reason of foreclosure of the applicable Security Instrument, deed in lieu of foreclosure or otherwise, such party shall (x) succeed to all of the rights of and benefits accruing to Borrower under the Ground Lease, and (y) be entitled to exercise all of the rights and benefits accruing to Borrower under the Ground Lease. At such time as Xxxxxx shall request, Xxxxxxxx agrees to execute and deliver and use commercially reasonable efforts to cause any third party to execute and deliver to Lender such documents as Lender and its counsel may reasonably require in order to insure that the provisions of this section will be validly and legally enforceable and effective against Borrower and all parties claiming by, through, under or against Borrower.
(viii) Borrower shall not, without Lender’s written consent, fail to exercise any option or right to renew or extend the term of the Ground Lease in accordance with the terms of the related Ground Lease, and shall give immediate written notice to Lender and shall execute, acknowledge, deliver and record any document requested by Xxxxxx to evidence the lien of the related Security Instrument on such extended or renewed lease term; provided, however, Borrower shall not be required to exercise any particular such option or right to renew or extend (or to permit the term of the Ground Lease to renew or extend automatically) to the extent Borrower shall have received the prior written consent of Lender (which consent may not be unreasonably withheld, delayed or conditioned) allowing Borrower to forgo exercising such option or right to renew or extend. If Borrower shall fail to exercise any such option or right as aforesaid within thirty (30) days prior to the last day upon date when required, Lender may exercise the option or right as Borrower’s agent and attorney in fact as provided above in Xxxxxx’s own name or in the name of and on behalf of a nominee of Xxxxxx, as Lender may determine in the exercise of its sole and absolute discretion.
(ix) Borrower shall not waive, excuse, condone or in any way release or discharge the Ground Lessor under the Ground Lease of or from the Ground Lessor’s material obligations, covenant and/or conditions under the related Ground Lease without the prior written consent of Lender (which consent will not be unreasonably withheld, delayed or conditioned).
(x) Borrower shall not, without Xxxxxx’s prior written consent, surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modify or amend, the Ground Lease, other than an extension of the term under its terms, or an expiration of the Ground Lease pursuant to its terms. Consent to one amendment, change, agreement or modification shall not be deemed to be a waiver of the right to require consent to other, future or successive amendments, changes, agreements or modifications. Any acquisition of Ground Lessor’s interest in the Ground Lease by Borrower or any Affiliate of Borrower shall be accomplished by Borrower in such option may be exerciseda manner so as to avoid a merger of the interests of lessor and lessee in the Ground Lease, unless consent to such merger is granted by Lender.
Appears in 1 contract
Samples: Loan Agreement (SITE Centers Corp.)
Ground Lease Covenants. (a) With respect to each the Ground Lease, Borrower agrees as follows:
(a1) Borrower shall cause each Mortgage Borrower that is the holder perform all obligations of the leasehold interest tenant under such the Ground Lease and under any statute, ordinance, rule or regulation relating to the Ground Lease, and shall not to cause or permit any breach thereof, and shall use diligent efforts in good faith to enforce the obligations of the landlord under the Ground Lease to (i) pay the end that Borrower may enjoy all rents, additional rents and other sums required to be paid by such Mortgage Borrower, as tenant the rights granted under and pursuant to the provisions of such Ground Lease. If Borrower shall default under the Ground Lease, (ii) diligently perform and observe in all material respects all of the terms, covenants and conditions of such Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any or if Administrative Agent shall receive notice by the landlord under such Ground Lease to such Mortgage Borrower of any default by under the Ground Lease, Administrative Agent may, at its option but without any obligation to do so, take any action necessary or desirable to cure any such Mortgage Borrowerdefault, as tenant thereunderAdministrative Agent being authorized to enter upon the Ground Lease Property and the remainder of the Project for such purpose with or without notice and without becoming a mortgagee in possession. Borrower shall pay to Administrative Agent all costs of Administrative Agent incurred in curing any such default, together with interest on such costs from the date of expenditure until said sums have been paid, at the Default Rate.
(2) Borrower shall promptly (and deliver to Lender a true copy of each such notice in any event within five (5) Business Days of receipt and (ivafter the same is received or sent by Borrower) promptly notify Lender deliver to Administrative Agent copies of any bankruptcywritten notice of default under the Ground Lease that is received, reorganization or insolvency sent, by Borrower.
(3) Borrower acknowledges and agrees that there shall, without the written consent of Administrative Agent, be no merger of the Ground Lease nor of the leasehold estate or other estate created thereby, with the fee estate in the Ground Lease Property by reason of the fact that the Ground Lease, or the leasehold estate or other estate created thereby, may be held directly or indirectly by or for the account of any person or entity who or which also holds the fee or leasehold estate in such property (including, without limitation, by virtue of the exercise by Borrower of any right to purchase all or any portion of the Ground Lease Property or the exercise by the landlord under such the Ground Lease or of any notice thereof, and deliver right to Lender a true copy of such notice within five (5) Business Days of Borrower’s receipt. Borrower shall not, without the prior consent of Lender, cause such Mortgage require Borrower to surrender purchase all or any portion of the leasehold estate created by such Ground Lease Property, which purchase by the Borrower, in either such case, shall be subject to the restrictions contained in this Agreement).
(4) Borrower acknowledges and agrees that no termination or terminate or cancel such surrender by Borrower under the Ground Lease to the landlord thereunder shall be valid or modify, change, supplement, alter or amend such effective. The terms of the Ground Lease in may not be modified, amended, supplemented, waived or released, or terminated or subordinated to any material respectmortgage, agreement, lease or other interest, either orally or in writing, without the prior written consent of Administrative Agent.
(5) Borrower acknowledges and agrees that if such Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of such Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, and shall fail to cure the same is for any reason whatsoever terminated prior to the expiration of its term and, if pursuant to any applicable cure period provided thereunderprovision of the Ground Lease or otherwise, Administrative Agent or its designee shall acquire from the landlord under the Ground Lease a new lease or other agreement for the use of the property covered by the Ground Lease, Borrower shall not have any right, title or interest in or to such new lease or other agreement or the estate created thereby.
(6) Without obtaining Administrative Agent's prior written consent, Borrower shall not acquire the fee title to the Ground Lease Property or make any election, give any consent or approval or invoke any right of first refusal, purchase option, put or call right as a tenant under the Ground Lease.
(7) Borrower shall from time to time upon the written request of Administrative Agent request from the landlord under the Ground Lease, and use commercially reasonable efforts to deliver to Administrative Agent, estoppel certificates from the landlord under the Ground Lease, in form and substance reasonably acceptable to Administrative Agent.
(8) Borrower acknowledges that pursuant to Section 365 of the Bankruptcy Code it is possible that a trustee in bankruptcy of the landlord under the Ground Lease, or such landlord as a debtor-in-possession, could reject the Ground Lease, in which case the Borrower, as tenant, would have the election described in Section 365(h) of the Bankruptcy Code (which election, as the same may be amended from time to time, and together with any comparable right under any other state or federal law relating to bankruptcy, reorganization or other relief for debtors, whether now or hereafter in effect, is herein called the "Election") to treat the Ground Lease as terminated by such rejection or, in the alternative, to remain in possession for the balance of the term of the Ground Lease, and any renewal or extension thereof that is enforceable by the tenant under applicable nonbankruptcy law. Borrower shall not permit Lender the termination of the Ground Lease by exercise of the Election or otherwise without the prior written consent of Administrative Agent, which consent may be withheld, conditioned or delayed for any reason in Administrative Agent's sole and absolute discretion. In order to have secure the covenant made in this subsection and as security for the obligations of Borrower under the Loan Documents, Borrower assigns the Election and all rights related thereto to Administrative Agent (for the benefit of Lenders). Borrower acknowledges and agrees that the foregoing assignment of the Election and related rights is one of the rights which Administrative Agent may use at any time in order to protect and preserve the other rights and interests of Administrative Agent and Lenders under this Agreement and the other Loan Documents, since exercise of the Election in favor of terminating the Ground Lease without Administrative Agent's consent would constitute waste hereunder. Borrower agrees that exercise of the Election in favor of preserving the right to pay any sums and to perform any act or take any action as may be appropriate to cause all of possession under the terms, covenants and conditions of such Ground Lease on the part of such Mortgage Borrower to be performed or observed on behalf of Borrower, to the end that the rights of such Mortgage Borrower in, to and under such Ground Lease shall not be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation deemed to perform any such actions. If constitute a taking or sale of the landlord under such Ground Lease Property by Administrative Agent and shall deliver not entitle Borrower to Lender a copy any credit against the Loans or other obligations under this Agreement and the other Loan Documents. Borrower acknowledges and agrees that in the event the Election is exercised in favor of any notice of default the Borrower remaining in possession, Borrower's resulting rights under such the Ground Lease, as adjusted by the effect of Section 365 of the Bankruptcy Code, shall then be subject to this Agreement and the other Loan Documents.
(9) If there shall be filed by or against Borrower a petition under the Bankruptcy Code, and the Borrower, as the tenant under the Ground Lease, shall determine to reject the Ground Lease pursuant to Section 365(a) of the Bankruptcy Code, then Borrower shall give Administrative Agent not less than ten (10) days' prior notice of the date on which the Borrower shall apply to the bankruptcy court for authority to reject the Ground Lease. Administrative Agent shall have the right, but not the obligation, to serve upon Borrower within such 10-day period a notice stating that (i) Administrative Agent demands that the Borrower assume and assign the Ground Lease to Administrative Agent pursuant to Section 365 of the Bankruptcy Code and (ii) Administrative Agent agrees to cure or provide adequate assurance of prompt cure of all defaults and provide adequate assurance of future performance under the Ground Lease. If Administrative Agent serves upon Borrower the notice described in the preceding sentence, Borrower shall not seek to reject the Ground Lease and shall comply with the demand provided for in clause (i) of the preceding sentence within thirty (30) days after the notice shall constitute full protection have been given, subject to Lender the performance by Administrative Agent of the agreement provided for any action taken or omitted in clause (ii) of the preceding sentence.
(10) Effective upon the entry of an order for relief in respect of the Borrower under the Bankruptcy Code, the Borrower hereby assigns and transfers to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause such Mortgage Borrower Administrative Agent a non-exclusive right to exercise each individual option, if any, apply to extend or renew the term bankruptcy court under Section 365(d)(4) of such the Bankruptcy Code for an order extending the period during which the Ground Lease upon written demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercisedrejected or assumed.
Appears in 1 contract
Ground Lease Covenants. (a) With Without limitation of the other provisions herein, each Borrower makes the following covenants with respect to each Ground Lease, :
(a) Borrower shall cause each Mortgage Borrower that is the holder of the leasehold interest under such Ground Lease to (i) pay (or cause to be paid) all rents, additional rents and other sums required to be paid by such Mortgage Borrower, as tenant under and pursuant to the provisions of such each Ground LeaseLease when due and payable thereunder, (ii) diligently perform and observe in all material respects (or cause to be performed and observed) all of the terms, covenants and conditions of such each Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord under such any Ground Lease to such Mortgage Borrower of any default by such Mortgage Borrower, as tenant thereunder, Borrower and deliver to Lender a true copy of each such notice within five seven (57) Business Days of receipt receipt, and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under such any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five seven (57) Business Days of Borrower’s receipt. .
(b) Borrower shall not, without the prior consent of Lender, cause such Mortgage Borrower to surrender the leasehold estate created by such any Ground Lease or terminate or cancel such any Ground Lease or modify, change, supplement, alter or amend such any Ground Lease in any material respectLease, either orally or in writing, and if such Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of such any Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, Borrower and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Borrower Lender shall permit Lender to have the right right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Ground Lease on the part of such Mortgage Borrower to be performed or observed on behalf of Borrower, to the end that the rights of such Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under such Ground Lease shall deliver to Lender a copy of any notice of default under such Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. .
(c) Borrower shall cause such Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease within sixty (60) days prior to the expiration of such Ground Lease upon written demand by (the “Renewal Deadline”), and Borrower hereby expressly authorizes and appoints Lender made at any time within one (1) year prior its attorney-in-fact to the last day upon which exercise any such option may in the name of and upon behalf of Borrower exercisable upon an Event of Default, which power of attorney shall be exercisedirrevocable and shall be deemed to be coupled with an interest.
(d) Notwithstanding anything contained in any Ground Lease to the contrary, Borrower shall not, without prior written consent of Lender, sublet any portion of the leasehold estate created by the Ground Lease except in accordance with the express terms and conditions of this Agreement.
(e) With respect to each Individual Property which consists of a leasehold estate crated pursuant to a Ground Lease, neither Borrower nor any Affiliate of Borrower shall acquire the related Fee Estate without Lender’s prior written consent. To the extent Borrower or any Affiliate of Borrower shall acquire any such related Fee Estate, (i) the security interest created by the related Security Instrument shall be spread to cover such related Fee Estate, (ii) Borrower shall (and shall cause any applicable Affiliate of Borrower to) execute any such documents and instruments as Lender shall reasonably require to spread the lien of such Security Instrument to cover such related Fee Estate and ensure that Lender has a first priority perfected security interest with respect to such Fee Estate subject to Permitted Encumbrances, and (iii) Borrower shall obtain such endorsements or additional title coverage as Lender shall reasonably require to insure the lien of such Security Instrument on such related Fee Estate.
Appears in 1 contract
Ground Lease Covenants. Without limitation of the other provisions herein (a) With including, without limitation, Section 4.22 hereof), Borrower makes the following covenants with respect to each the Ground Lease, : LOAN AGREEMENT – Page 59 41458-110/JANAF Shopping Yard (aVA)
(1) Borrower shall cause each Mortgage Borrower that is the holder of the leasehold interest under such Ground Lease to (i) pay (or cause to be paid) all rents, additional rents and other sums required to be paid by such Mortgage Borrower, as tenant under and pursuant to the provisions of such the Ground Lease, (ii) diligently perform and observe in all material respects (or cause to be performed and observed) all of the terms, covenants and conditions of such the Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of any change in the Payment Instructions and of the giving of any notice by the landlord under such the Ground Lease to such Mortgage Borrower of any default by Borrower and shall, within five (5) Business Days of receipt of such Mortgage Borrowernotice or change, as tenant thereunder, and (A) deliver to Lender a true copy of each such notice within five or evidence of such change (5as applicable) Business Days and (B) in the case of receipt a change in the Payment Instructions, deliver to Lender a new IRS Form W9 with respect to the landlord under the Ground Lease (or evidence reasonably acceptable to Lender that the IRS Form W9 with respect to the landlord under the Ground Lease then held by Lender remains accurate and valid) and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under such the Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Borrower’s 's receipt. .
(2) Borrower shall not, without the prior consent of Lender, cause such Mortgage Borrower to surrender the leasehold estate created by such the Ground Lease or terminate or cancel such the Ground Lease or modify, change, supplement, alter or amend such the Ground Lease in any material respectLease, either orally or in writing, and if such Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of such the Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, Borrower and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Borrower Lender shall permit Lender to have the right right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such the Ground Lease on the part of such Mortgage Borrower to be performed or observed on behalf of Borrower, to the end that the rights of such Mortgage Borrower in, to and under such the Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under such the Ground Lease shall deliver to Lender a copy of any notice of default under such the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Without the prior written consent of Lender, which shall not be unreasonably withheld, conditioned or delayed by Lender so long as all of the following conditions are satisfied, Borrower shall cause not (and shall not permit any Borrower Party or any Affiliate of any Borrower Party to) acquire the fee interest in the portion of the Property subject to the Ground Lease (the "Fee Acquisition"; provided however Borrower may request that Lender consent to the Fee Acquisition by Borrower (but not any Affiliate of any Borrower Party) provided all of the following requirements are satisfied: (i) no Event of Default exists, (ii) the REMIC Requirements are satisfied and Borrower delivers to Lender a REMIC Opinion, (iii) the Loan Documents shall be modified as applicable to include the fee interest in the applicable Property as collateral for the Loan, (iv) Borrower provides to Lender a replacement Title Insurance Policy or endorsement to the one issued on the Closing Date which has been updated to reflect the modifications to the Loan Documents and recording and creation of additional security interests in favor of Lender, (v) Borrower and Guarantor do not incur any additional debt in connection therewith, (vi) such Mortgage other reasonable requirements as are deemed necessary by Lender under the Prudent Lender Standard, and (vii) Borrower to pays all costs and expenses of Lender and its legal counsel and all rating agency, title company, recording office and similar fees and expenses in connection with the Fee Acquisition. LOAN AGREEMENT – Page 60 41458-110/JANAF Shopping Yard (VA)
(3) Borrower shall exercise each individual option, if any, to extend or renew the term of such the Ground Lease upon written demand by no later than the earliest possible date for renewal (if any) (the "Renewal Deadline"), and Borrower hereby expressly authorizes and appoints Lender made at any time within one (1) year prior its attorney-in-fact to the last day upon which exercise any such option may in the name of and upon behalf of Borrower, which power of attorney shall be exercisedirrevocable and shall be deemed to be coupled with an interest. Borrower's failure to exercise the aforesaid renewal option within the aforesaid period shall, at Lender's option, constitute an immediate Event of Default hereunder. Additionally, Borrower acknowledges that upon Lender's request Borrower shall deliver to Lender an original executed but undated notice to the landlord under the Ground Lease exercising Borrower's renewal rights thereunder (such notice, the "Renewal Notice"). Borrower hereby irrevocably grants Lender the right to date and transmit the Renewal Notice to the landlord under the Ground Lease; provided, however, Lender shall only do so if, as of the Renewal Deadline, Lender is not in receipt of evidence reasonably acceptable to Lender that Borrower has exercised its right to renew the Ground Lease.
(4) Notwithstanding anything contained in the Ground Lease to the contrary, Borrower shall not, without prior written consent of Lender, sublet any portion of the leasehold estate created by the Ground Lease except in accordance with the applicable terms and conditions hereof.
Appears in 1 contract
Samples: Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)
Ground Lease Covenants. Without limitation of the other provisions herein (a) With including, without limitation, Section 4.22 hereof), Borrower makes the following covenants with respect to each the Ground Lease, :
(a) Borrower shall cause each Mortgage Borrower that is the holder of the leasehold interest under such Ground Lease to (i) pay (or cause to be paid) all rents, additional rents and other sums required to be paid by such Mortgage Borrower, as tenant under and pursuant to the provisions of such the Ground Lease, (ii) diligently perform and observe in all material respects (or cause to be performed and observed) all of the terms, covenants and conditions of such the Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of any change in the Payment Instructions and of the giving of any notice by the landlord under such the Ground Lease to such Mortgage Borrower of any default by Borrower and shall, within five (5) Business Days of receipt of such Mortgage Borrowernotice or change, as tenant thereunder, and (A) deliver to Lender a true copy of each such notice within five or evidence of such change (5as applicable) Business Days and (B) in the case of receipt a change in the Payment Instructions, use commercially reasonable efforts to deliver to Lender a new IRS Form W9 with respect to the landlord under the Ground Lease (or evidence reasonably acceptable to Lender that the IRS Form W9 with respect to the landlord under the Ground Lease then held by Lender remains accurate and valid) and (iv) promptly after Borrower acquires knowledge thereof, notify Lender of any bankruptcy, reorganization or insolvency of the landlord under such the Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Borrower’s receipt. .
(b) Borrower shall not, without the prior consent of Lender, cause such Mortgage Borrower to surrender the leasehold estate created by such the Ground Lease or terminate or cancel such the Ground Lease or modify, change, supplement, alter or amend such the Ground Lease in any material respect(other than an amendment that extends the term of the Ground Lease), either orally or in writing, and if such Mortgage Borrower shall default in any material respect in the performance or observance of any material term, covenant or condition of such the Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, Borrower and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Borrower Lender shall permit Lender to have the right right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such the Ground Lease on the part of such Mortgage Borrower to be performed or observed on behalf of Borrower, to the end that the rights of such Mortgage Borrower in, to and under such the Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under such the Ground Lease shall deliver to Lender a copy of any notice of default under such the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. .
(c) Borrower, a Borrower Party and/or any Affiliate of the foregoing shall be permitted to acquire the fee interest under the Ground Lease in the Individual Property subject to the Ground Lease without Lender’s consent so long as (I) no Event of Default has occurred and is continuing, (II) the Ground Lease shall survive such acquisition, (III) the lien of Lender’s Security Instrument shall be spread to be a first priority security interest in such fee interest under the Ground Lease (subject only to Permitted Encumbrances) pursuant to a spreader agreement in form and substance reasonably acceptable to Lender, (IV) Lender’s existing first priority interest in the leasehold estate created pursuant to the Ground Lease and Lender’s existing first priority fee interest in the portion of such Individual Property not subject to the Ground Lease (subject only to Permitted Encumbrances) shall remain unimpaired, (V) such acquisition shall comply with REMIC Requirements and Lender shall receive a REMIC Opinion in connection therewith, (VI) Lender shall receive endorsements to Lender’s Title Insurance Policy insuring such fee interest in the Individual Property subject to the Ground Lease and confirming the priority Lender’s interest in such fee interest under the Ground Lease, the leasehold interest under the Ground Lease and Lender’s fee interest in the portion of such Individual Property not subject to the Ground Lease, (VII) Borrower and each SPE Component Entity shall continue to be a Single Purpose Entity after giving effect to such acquisition and (VIII) Borrower shall cause such Mortgage Borrower have paid to exercise each individual optionLender (x) all out-of-pocket costs and expenses, if anyincluding reasonable attorneys’ fees, to extend or renew the term of such Ground Lease upon written demand incurred by Lender made at any time within one in connection therewith and (1y) year prior to all fees, costs and expenses of all third parties incurred in connection therewith (the last day upon which any such option may be exercisedfee acquisition in accordance with the terms and conditions of this Section 4.23(c), the “Fee Acquisition”).
Appears in 1 contract
Ground Lease Covenants. Trustor hereby represents, warrants, covenants and agrees that:
(a) With respect to each This Deed of Trust is duly executed and delivered in conformity with, and does not violate or breach any term of covenant of, the Ground Lease, .
(ab) Borrower shall Trustor will cause each Mortgage Borrower a memorandum of ground lease to be recorded against the Property that is the holder provides notice of the leasehold interest under such existence of the Ground Lease to Lease.
(ic) pay all rents, additional rents and other sums required Trustor will not do or permit to be paid by such Mortgage Borrowerdone or omit to do or permit the omission of any act, as tenant under and pursuant to which would impair the provisions security of such Ground Leasethis Deed of Trust, (ii) diligently perform and observe in all material respects all or would constitute grounds for the termination of the terms, covenants and conditions of such Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord under such Ground Lease to such Mortgage Borrower of any default by such Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under such Ground Lease or would entitle the Ground Lessor to declare a forfeiture or termination of any notice thereof, and deliver to Lender a true copy of such notice within five the Ground Lease.
(5d) Business Days of Borrower’s receipt. Borrower shall Trustor will not, without the prior written consent of LenderBeneficiary terminate, cause materially modify or surrender or suffer or permit any termination, material modification or surrender of the Ground Lease.
(e) Trustor will not consent to any waiver of Ground Lessor's obligations under the Ground Lease, nor to the subordination of the Ground Lease to any mortgage of the fee interest of the Ground Lessor.
(f) Trustor will not acquire the fee interest in the Property under the Ground Lease without the express prior written approval of Beneficiary. In the event that Trustor acquires fee title to the Property, such Mortgage Borrower interest will be deemed to surrender be subject to and covered by this Deed of Trust, and Trustor shall promptly: (i) provide Beneficiary with notice of such further title interest of Trustor to the Property and (ii) execute, acknowledge, and deliver such instruments, documents, and agreements as may be required by Beneficiary to ratify, confirm, re- affirm, and perfect Beneficiary’s interest in such Property, including without limitation, any additional mortgage or amendment requested by Beneficiary to confirm Trustor's right, title and interest in and to the fee title of Trustor to the Property. Without the express prior written approval of Beneficiary, Trustor shall not merge the leasehold estate created by such the Ground Lease or terminate or cancel such Ground Lease or modify, change, supplement, alter or amend such Ground Lease in any material respect, either orally or in writingwith the fee estate of the Property, and if such Mortgage Borrower shall default in the performance or observance of leasehold estate must always remain separate and distinct, notwithstanding any term, covenant or condition union of such estates in Ground Lease on Lessor, Beneficiary, or Trustor by purchase, operation of Law, or otherwise. In the part event that Beneficiary acquires fee title and the leasehold estate by foreclosure of this Deed of Trust (or by conveyance or assignment in lieu thereof) or otherwise, then such Mortgage Borrower, as tenant thereunder, estates will not merge but will remain separate and shall fail distinct for all purposes after such acquisition unless and until Beneficiary elects in writing to cure the same prior to the expiration of any applicable cure period provided thereunder, Borrower shall permit Lender to have the right to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of merge such Ground Lease on the part of such Mortgage Borrower to be performed or observed on behalf of Borrower, to the end that the rights of such Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under such Ground Lease shall deliver to Lender a copy of any notice of default under such Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause such Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of such Ground Lease upon written demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercisedestates.
Appears in 1 contract
Samples: Leasehold Deed of Trust
Ground Lease Covenants. (a) With Borrower hereby covenants and agrees with Lender with respect to each the Ground Lease, :
(a) Borrower shall cause each Mortgage Borrower that is the holder of the leasehold interest under such Ground Lease to (i) pay all rents, additional rents and other sums required to be paid by such Mortgage Borrower, as tenant under and pursuant to the provisions of such Ground Lease, (ii) diligently perform and observe will comply in all material respects all with the terms and conditions of the Ground Lease. Borrower will not do or permit anything to be done, the doing of which, or refrain from doing anything, the omission of which, will impair or tend to impair the security of the Leasehold Real Estate under the Ground Lease or will be grounds for declaring a default under, or forfeiture of, the Ground Lease.
(b) Borrower shall enforce the Ground Lease and will not terminate, modify, cancel, change, supplement, alter or amend the Ground Lease, or waive, excuse, condone or in any way release or discharge the Ground Lessor of or from any of the material covenants and conditions to be performed or observed by the Ground Lessor under the Ground Lease. Borrower hereby expressly covenants with Lender not to cancel, surrender, amend, modify or alter in any way the terms of the Ground Lease. Borrower hereby assigns to Lender, as further security for the payment of the Obligations and for the performance and observance of the terms, covenants and conditions of such Ground Lease on the part Loan Documents, all of such Mortgage the rights, privileges and prerogatives of Borrower, as tenant thereunderunder the Ground Lease, (iii) promptly notify Lender of the giving of any notice by the landlord under such Ground Lease to such Mortgage Borrower of any default by such Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under such Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Borrower’s receipt. Borrower shall not, without the prior consent of Lender, cause such Mortgage Borrower to surrender the leasehold estate created by such the Ground Lease or terminate or cancel such Ground Lease or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease, and any such surrender of the leasehold estate created by the Ground Lease in any material respector termination, either orally cancellation, modification, change, supplement, alteration or in writingamendment of the Ground Lease without the prior consent of Lender shall be void and of no force and effect. Notwithstanding the foregoing, if the United Healthcare Lease is amended pursuant to the terms and conditions hereof during the Loan Term so that the parking obligations required therein no longer require the Ground Lease be utilized to meet their permitted parking spaces, and if the parking at the Property otherwise complies with all zoning requirements for parking and no other tenants at the Property require the use of such Mortgage parking spaces and/or the Leasehold Real Estate pursuant to the Ground Lease, Borrower shall default may, with Lender’s reasonable prior written consent, terminate the Ground Lease.
(c) Borrower will give Lender prompt (and in the performance or observance all events within five (5) days) notice of any term, covenant or condition of such default under the Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Borrower shall permit Lender to have the right to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Ground Lease on the part of such Mortgage receipt by Borrower to be performed or observed on behalf of Borrower, to the end that the rights of such Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under such Ground Lease shall deliver to Lender a copy of any notice of default from Ground Lessor. Borrower will promptly (and in all events within (5) days) furnish to Lender copies of all information furnished to Ground Lessor by the terms of the Ground Lease or the provisions of this Section. Borrower will deposit with Lender an exact copy of any notice, communication, plan, specification or other instrument or document received or given by Borrower in any way relating to or affecting the Ground Lease which may concern or affect the estate of Ground Lessor or Borrower thereunder in or under the Ground Lease or in the Leasehold Real Estate thereby demised.
(d) Lender shall have the right, but not the obligation, to perform any obligations of Borrower under the terms of the Ground Lease during the continuance of a default. All costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) so incurred, shall be treated as an advance secured by the Loan Documents, shall bear interest thereon at the Default Rate from the date of payment by Lender until paid in full and shall be paid by Borrower to Lender during the continuance of an Event of Default within five (5) days after demand. No performance by Lender of any obligations of Borrower shall constitute a waiver of any default arising by reason of Borrower’s failure to perform the same. Subject to the rights of lessees, sublessees and other occupants under the Leases, Lender and any person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action.
(e) To the extent permitted by law, the amounts payable by Borrower or any other Person in the exercise of any right of redemption following foreclosure of the Property shall include all Ground Lease Rents paid and other sums advanced by Lender, together with interest thereon at the Default Rate, on behalf of Borrower and/or any successor to Borrower as lessee under the Ground Lease or any Replacement Ground Lease, such notice on account of the Property.
(f) Unless Lender shall constitute full protection otherwise consent, the fee title and the leasehold estate in the Leasehold Real Estate shall not merge but shall always be kept separate and distinct, notwithstanding the union of said estates either in Ground Lessor or in Borrower, or in a third party, by purchase or otherwise.
(i) Without limiting the generality of the foregoing, Borrower expressly agrees to promptly execute, acknowledge and deliver to Lender for any action taken such instruments as may be required to create, perfect, and preserve (i) a valid first lien, subject to no liens, charges or omitted to be taken by encumbrances other than the Permitted Exceptions, in favor of Lender, on the fee interest in good faithany portion of the premises subject to the Ground Lease that may hereafter be acquired by Borrower (the “Added Fee Real Estate”), and (ii) a valid security interest in reliance thereon. all personal property associated therewith.
(ii) Notwithstanding the foregoing, any other provision of this Agreement, or any requirement of the Ground Lease, Borrower shall cause not acquire a fee interest in any part of the Leasehold Real Estate (any such Mortgage Borrower interest, along with all other interests in real or personal property acquired in conjunction therewith, “Added Fee Collateral,” provided, for avoidance of doubt, that Added Fee Real Estate shall not include any leasehold or other interest in real or personal property that is, immediately prior to exercise each individual optionan acquisition, if any, to extend or renew the term of such Ground Lease upon written demand by Lender made at any time within one both (1) year held by Borrower, and (2) subject to the lien of the Mortgage), unless and until Borrower has caused each of the following conditions to be satisfied:
A. Lender shall have received a copy of a deed (and, as to any associated personal property, a xxxx of sale) conveying such Added Fee Collateral to Borrower, and a letter from the Borrower (countersigned by a title insurance company reasonably acceptable to Lender) acknowledging receipt of such deed and xxxx of sale, and agreeing to record such deed in the appropriate real estate records for the county in which the Fee Real Estate is located.
B. If the Loan (or any interest therein) is held by a REMIC, Lender shall have received an appraisal of the Property, including therein the proposed Added Fee Collateral, prepared by an appraiser acceptable to the Lender and the Rating Agencies (or such other evidence of valuation of the Fee Collateral as may be acceptable to a REMIC), dated no more than sixty (60) days prior to the last day date upon which such an acquisition (a “Fee Acquisition”) is to be consummated (the “Fee Acquisition Date”), indicating that as of the Fee Acquisition Date, the value of the Property including the proposed Added Fee Collateral and accounting for any merger of fee and leasehold interests that may occur as a result of such option Fee Acquisition below, will be greater than the value of the Property, excluding the Fee Collateral, immediately prior to the Fee Acquisition.
C. After giving effect to such Fee Acquisition and any reduction in Borrower’s obligation to pay Ground Rent, the Debt Service Coverage Ratio for the Loan is not less than the Debt Service Coverage Ratio immediately preceding the Fee Acquisition.
D. If the Loan (or any interest therein) is held by a REMIC, Lender shall have received a Rating Confirmation with respect to the contemplated Fee Acquisition.
E. If the Loan (or any interest therein) is held by a REMIC, Borrower shall include in the certificate required pursuant to clause (E) above such additional representations and warranties with respect to Borrower, the Property, the Added Fee Collateral or the Loan as the Lender or the Rating Agencies may require (in accordance with the Prudent Lender Standard), and shall deliver such certificate in form and substance satisfactory to the Lender and the Rating Agencies.
F. Borrower shall have executed, acknowledged and delivered to Lender (A) a first priority deed of trust, an assignment of leases, a security agreement, and applicable financing statements with respect to the Added Fee Collateral (or, if determined by Lender in accordance with the Prudent Lender Standard, a modification and spreader of the lien of the Mortgage and the Assignment of Leases, together with an amendment to any previously filed financing statements), together with a letter from Borrower countersigned by a title insurance company reasonably acceptable to Lender acknowledging receipt of such deed of trust, assignment of leases, security agreement, and financing statements and agreeing to record or file, as applicable, such instruments in the real estate records for the county in which the Added Fee Collateral is located and to file one of the financing statements in the office of the Secretary of State of the state in which Borrower is organized, so as to effectively create upon such recording and filing a valid and enforceable first priority lien upon the Added Fee Collateral in favor of Lender (or such other trustee as may be exerciseddesired under local law), subject only to the Permitted Exceptions and such other liens as are permitted pursuant to the Loan Documents, and (B) modifications of all other Loan Documents necessary to include the Added Fee Collateral within the scope thereof (including to acknowledge any merger of fee and leasehold interests that may occur as a result of the Fee Acquisition). All such instruments shall be substantially the same in form and substance as the counterparts of such documents executed and delivered with respect to the Property as a whole, subject to modifications reflecting that the Added Fee Collateral is only a portion of the Property as a whole, and as otherwise might be appropriate under the Prudent Lender Standard based on changes in Applicable Laws as of the Fee Acquisition Date in order for counsel admitted to practice in the state of Texas to deliver the opinion as to the enforceability of such documents required pursuant to clause (L) below. Such Mortgage, as modified to encumber the Added Fee Collateral (including by the addition of any separate deed of trust or other security instrument), shall continue to secure all amounts evidenced by the Note, and any instruments delivered pursuant to this clause (F) shall thereafter be included within the term Loan Documents.
G. Lender shall have received an endorsement to the Title Insurance Policy, dated as of the Fee Acquisition Date, insuring that the Mortgage, modified or spread as contemplated by this Section 4.31(f), encumbers all of the Property including the Added Fee Collateral. The amount of coverage under the Title Insurance Policy shall not be reduced in connection with such endorsement, nor shall any exceptions to coverage be added thereby. Lender also shall have received copies of paid receipts showing that all premiums in respect of such endorsements and Title Insurance Policies have been paid.
H. If the Loan (or any interest therein) is held by a REMIC, Lender shall have received an opinion of counsel acceptable to Lender and the Rating Agencies (together with such other evidence as Lender may request in accordance with the Prudent Lender Standard) that (a) the Fee Acquisition as contemplated hereby will not cause a “significant modification” of the Loan within the meaning of U.S. Treasury Regulation Section 1.860G-2(b)(2); (b) the substitution as contemplated hereby will not cause the Loan to fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3)(A) of the Code; and (c) the aggregate fair market value of the Property including therein the proposed Added Fee Collateral, as determined immediately after such Fee Acquisition, either (1) is equal to at least 80% of the adjusted issue price of the Loan that is outstanding immediately after such Fee Acquisition, or (2) equals or exceeds the aggregate fair market value of the borrower’s interest in the Ground Lease (to the extent not extinguished by any prior merger) and any previously acquired Fee Collateral that secures the Loan immediately before such Fee Acquisition. For purposes of the preceding clause (c), fair market value shall be determined by any commercially reasonable valuation method permitted under the REMIC Provisions and by excluding any personal property or going concern value attributable to the Property, the Added Fee Collateral, or the borrower’s interest therein.
I. Lender shall have received valid certificates of insurance indicating that the requirements for the policies of insurance required for the Property include the Added Fee Collateral, and evidencing the payment of all premiums payable for the existing policy period.
Appears in 1 contract
Ground Lease Covenants. (a) With Without limitation of the other provisions herein, Borrower shall cause Mortgage Borrower to comply with the following covenants with respect to each Ground Lease, :
(a) Borrower shall cause each Mortgage Borrower that is the holder of the leasehold interest under such Ground Lease to (i) pay (or shall cause Mortgage Borrower to cause any Tenant to pay, as applicable) all rents, additional rents and other sums required to be paid by such the applicable Individual Mortgage Borrower, as tenant under and pursuant to the provisions of such the Ground Lease, (ii) diligently perform and observe (or cause to be performed and observed) in all material respects all of the terms, covenants and conditions of such the Ground Lease on the part of such the applicable Individual Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of any change in the instructions regarding the payment of Ground Rent (the “Payment Instructions”) and of the giving of any notice by the landlord under such the Ground Lease to such Borrower or Mortgage Borrower of any default by the applicable Individual Mortgage Borrower and shall, within five (5) Business Days of receipt of such Mortgage Borrowernotice or change, as tenant thereunder, and (A) deliver to Lender a true copy of each such notice within five or evidence of such change (5as applicable) Business Days and (B) in the case of receipt a change in the Payment Instructions, deliver to Lender a new IRS Form W9 with respect to the landlord under the Ground Lease (or evidence reasonably acceptable to Lender that the IRS Form W9 with respect to the landlord under the Ground Lease then held by Lender remains accurate and valid) and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under such the Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Borrower’s or Mortgage Borrower’s receipt. .
(b) Borrower shall notnot cause or permit Mortgage Borrower to, without the prior consent of Lender, cause such Mortgage Borrower to surrender the leasehold estate created by such the Ground Lease or terminate or cancel such the Ground Lease or modify, change, supplement, alter or amend such the Ground Lease in any material respectLease, either orally or in writing, and if such the applicable Individual Mortgage Borrower shall default in the performance or observance of any material term, covenant or condition of such the Ground Lease on the part of such the applicable Individual Mortgage Borrower, as tenant thereunder, Borrower and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Borrower subject to the rights of Mortgage Lender under the Mortgage Loan Documents, Lender shall permit Lender to have the right right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such the Ground Lease on the part of such the applicable Individual Mortgage Borrower to be performed or observed on behalf of the applicable Individual Mortgage Borrower, to the end that the rights of such the applicable Individual Mortgage Borrower in, to and under such the Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under such the Ground Lease shall deliver to Lender a copy of any notice of default under such the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by LenderLxxxxx, in good faith, in reliance thereon. Without the prior written consent of Lender, Borrower shall not permit any Borrower Party or any Affiliate of any Borrower Party to acquire the fee interest in the Property (the “Fee Acquisition”); provided that Borrower may permit the applicable Individual Mortgage Borrower to enter into a Fee Acquisition and terminate the Ground Lease so long as Borrower causes Mortgage Borrower, at its sole cost and expense, to comply with the terms of the Mortgage Loan Documents and provide evidence thereof to Lender in form and substance satisfactory to Lender.
(c) Borrower shall cause such Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease prior to the applicable deadline set forth in such Ground Lease upon written demand by Lender made at any time within one (1) year prior the “Renewal Deadline”), and, subject to the last day upon which rights of Mortgage Lender under the Mortgage Loan Documents, Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option may in the name of and upon behalf of Borrower and/or the applicable Individual Mortgage Borrower, which power of attorney shall be exercisedirrevocable and shall be deemed to be coupled with an interest. Additionally, promptly following written request by Lxxxxx, and subject to the rights of Mortgage Lender under the Mortgage Loan Documents, Borrower shall deliver to Lender an original executed but undated notice to the landlord under the Ground Lease exercising the applicable Individual Mortgage Borrower’s renewal rights thereunder (such notice, the “Renewal Notice”). Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, Borrower hereby irrevocably grants Lender the right to date and transmit the Renewal Notice to the landlord under the Ground Lease; provided, however, Lender shall only do so if, as of the Renewal Deadline, Lender is not in receipt of evidence reasonably acceptable to Lender that the applicable Individual Mortgage Borrower has exercised its right to renew the Ground Lease.
(d) Notwithstanding anything contained in the Ground Lease to the contrary, Borrower shall not cause or permit Mortgage Borrower to, without prior written consent of Lender, sublet any portion of the leasehold estate created by the Ground Lease except pursuant to any existing Lease or new Lease executed in accordance with the express terms and conditions of this Agreement.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Industrial Logistics Properties Trust)
Ground Lease Covenants. Trustor hereby represents, warrants, covenants and agrees that:
(a) With respect to each This Deed of Trust is duly executed and delivered in conformity with, and does not violate or breach any term of covenant of, the Ground Lease.
(b) Trustor will not do or permit to be done or omit to do or permit the omission of any act, (a) Borrower shall cause each Mortgage Borrower that is which would impair the holder security of this Deed of Trust, or would constitute grounds for the termination of the leasehold interest under such Ground Lease to (i) pay all rents, additional rents and other sums required to be paid by such Mortgage Borrower, as tenant under and pursuant to the provisions of such Ground Lease, (ii) diligently perform and observe in all material respects all of the terms, covenants and conditions of such Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord under such Ground Lease to such Mortgage Borrower of any default by such Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under such Ground Lease or would entitle the Ground Lessor to declare a forfeiture or termination of any notice thereof, and deliver to Lender a true copy of such notice within five the Ground Lease.
(5c) Business Days of Borrower’s receipt. Borrower shall Trustor will not, without the prior written consent of LenderBeneficiary terminate, cause materially modify or surrender or suffer or permit any termination, material modification or surrender of the Ground Lease.
(d) Trustor will not consent to any waiver of Ground Lessor's obligations under the Ground Lease, nor to the subordination of the Ground Lease to any mortgage of the fee interest of the Ground Lessor.
(e) Trustor will not acquire the fee interest in the Property under the Ground Lease without the express prior written approval of Beneficiary. In the event that Trustor acquires such Mortgage Borrower fee title to surrender the Property, such interest shall be deemed to be subject to and covered by this Deed of Trust, and in confirmation thereof, Trustor shall promptly: (i) provide Beneficiary with notice of such further title interest of Trustor to the Property and (ii) execute, acknowledge, and deliver such other and further instruments, documents, and agreements as may be reasonably required by Beneficiary to ratify, confirm, re-affirm, and perfect Beneficiary’s interest in such Property, including without limitation, any additional mortgage or amendment requested by Beneficiary to confirm Trustor's right, title and interest in and to the fee title of Trustor to the Property. Without the express prior written approval of Beneficiary, there shall be no merger of the leasehold estate created by such the Ground Lease or terminate or cancel such Ground Lease or modify, change, supplement, alter or amend such Ground Lease in any material respect, either orally or in writingwith the fee estate of the Property, and if such Mortgage Borrower shall default in Trustor's leasehold estate created by the performance or observance of any term, covenant or condition of such Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Borrower shall permit Lender to have the right to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Ground Lease on the part of such Mortgage Borrower to be performed or observed on behalf of Borrower, to the end that the rights of such Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired not merge, but shall always remain separate and free from default; provideddistinct, however, that Lender shall have no such obligation to perform notwithstanding any such actions. If the landlord under such Ground Lease shall deliver to Lender a copy of any notice of default under such Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall cause such Mortgage Borrower to exercise each individual option, if any, to extend or renew the term union of such estates in Ground Lease upon written demand Lessor, Beneficiary, or Trustor by Lender made at any time within one purchase, operation of Law, or otherwise. In the event that Beneficiary shall acquire such fee title and leasehold estate by foreclosure of this Deed of Trust (1or by conveyance or assignment in lieu thereof) year prior or otherwise, then such estates shall not merge as a result thereof but shall remain separate and distinct for all purposes after such acquisition unless and until Beneficiary elects in writing to the last day upon which any merge such option may be exercisedestate.
Appears in 1 contract
Samples: Leasehold Deed of Trust
Ground Lease Covenants. (a) With respect to each the Ground Lease, :
(a) Borrower shall will pay or cause each Mortgage Borrower that is the holder of the leasehold interest under such Ground Lease to (i) pay all rents, additional rents and other sums required to be paid by all rent and other charges required under the Ground Lease as and when the same are due other than payments that are being disputed in good faith and provided that no such Mortgage Borrowerpayment shall be more than thirty (30) days past due and Borrower will keep, as tenant under observe and pursuant perform, or cause to the provisions of such Ground Leasebe kept, (ii) diligently perform observed and observe performed in all material respects respects, all of the other terms, covenants covenants, provisions and conditions agreements of such the Ground Lease on the part of such Mortgage Borrowerthe lessee thereunder to be kept, as tenant thereunderobserved and performed, (iii) promptly notify Lender and will not in any manner cancel, terminate or surrender, or permit any cancellation, termination or surrender of the giving of any notice by the landlord under such Ground Lease to such Mortgage Borrower of any default by such Mortgage BorrowerLease, as tenant thereunderin whole or in part, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under such Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Borrower’s receipt. Borrower shall notor, without the prior written consent of Lender, cause such Mortgage Borrower to surrender the leasehold estate created by such Ground Lease or terminate or cancel such Ground Lease or modify, change, supplement, alter or amend such Ground Lease in any material respect, either orally or in writing, and if such Mortgage Borrower shall default in the performance modify, amend or observance permit any modification or amendment of any termof the terms thereof in any respect, covenant or condition of such Ground Lease and any attempt on the part of Borrower to exercise any such Mortgage Borrowerright without such written consent of Lender shall be null and void and of no effect.
(b) Borrower will do, or cause to be done, all things necessary to preserve and keep unimpaired the rights of Borrower as tenant thereunderlessee under the Ground Lease, and shall fail to cure prevent any default under the same prior Ground Lease, or any termination, surrender, cancellation, forfeiture or impairment thereof, and in the event of the failure of Borrower to make any payment required to be made by Borrower pursuant to the expiration provisions of the Ground Lease or to keep, observe or perform, or cause to be kept, observed or performed, any applicable cure period provided thereunder, Borrower shall permit Lender to have the right to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions covenants, provisions or agreements of the Ground Lease, Borrower agrees that Lender may (but shall not be obligated to), after notice to Borrower (provided, however, that no such Ground Lease on the part of such Mortgage Borrower notice shall be required to be performed given after the occurrence of an Event of Default hereunder or observed under any of the other Loan Documents) take any action on behalf of Borrower, to make or cause to be kept, observed or performed any such terms, covenants, provisions or agreements and to enter upon the Property and take all such action thereof as may be necessary therefor, to the end that the rights of such Mortgage Borrower in, in and to and under such the leasehold estate created by the Ground Lease shall be kept unimpaired and free from default; provided, howeverand all money so expended by Lender, that with interest thereon at the Default Rate from the date of each such expenditure, shall be paid by Borrower to Lender promptly upon demand by Lender and shall be added to the Indebtedness and secured by the Lien Instrument and Lender shall have no such obligation have, in addition to perform any other remedy of Lender, the same rights and remedies in the event of non-payment of any such actions. sum by Borrower as in the case of a default by Borrower in the payment of any sums due under the Note.
(c) If any action or proceeding shall be instituted to evict Borrower or to recover possession of the landlord under such Property or for any other purpose affecting the Ground Lease or this Lien Instrument, Borrower will, immediately upon service thereof on or to Borrower, deliver to Lender a true copy of each petition, summons, complaint, notice of motion, order to show cause and of all other provisions, pleadings, and papers, however designated, served in any such action or proceeding.
(d) Borrower covenants and agrees that unless Lender shall otherwise expressly consent in writing, the fee title to the property demised by the Ground Lease and the leasehold estate shall not merge but shall always remain separate and distinct, notwithstanding the union of said estates either in the lessor, Borrower, or a third party by purchase or otherwise; and in case Borrower acquires the fee title or any other estate, title or interest in the Property, this Lien Instrument shall attach to and cover and be a lien upon the fee title or such other estate so acquired, and such fee title or other estate shall, without further assignment, Lien Instrument or conveyance, become and be subject to the lien of and covered by this Lien Instrument.
(e) Upon the occurrence of an Event of Default, Borrower shall not make any election or give any consent or approval (other than the exercise of a renewal, extension, option or right pursuant to this Section) for which a right to do so is conferred upon Borrower as lessee under the Ground Lease without Lender's prior written consent. In case of any Event of Default under this Lien Instrument, all such rights, together with the right of termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease, all of which have been assigned for collateral purpose to Lender, shall vest in and be exercisable solely by Lender.
(f) Borrower may exercise any option or right to renew or extend the term of the Ground Lease or exercise the fee option contained therein without the prior written consent of Lender. Borrower shall give Lender simultaneous written notice of the exercise of such option or right to renew or extend, together with a copy of the instrument given to the lessor under the Ground Lease exercising such option or right, and, thereafter, shall promptly deliver to Lender a copy of any notice acknowledgment by the lessor under the Ground Lease with respect to the exercise of default such option or right.
(g) The lien of this Lien Instrument shall attach to all of Borrower's rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, 11 U.S.C. Sec. 365(h), including, without limitation, all of Borrower's rights to remain in possession of the Property. Borrower shall not, without Lender's prior written consent, elect to treat the Ground Lease as terminated under Subsection 365(h)(1) of the Bankruptcy Code, 11 U.S.C. Sec. 365(h)(1). Any such election made without Lender's consent shall be void.
(h) Borrower hereby unconditionally assigns, transfers and sets over to Lender all of Borrower's claims and rights to the payment of damages arising from any rejection of the Ground Lease by the lessor thereunder or any other fee owner of the Property under the Bankruptcy Code. Lender shall have the right to proceed in its own name or in the name of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of the Ground Lease, such notice shall constitute full protection including, without limitation, the right to Lender for file and prosecute, either in its own name or in the name of Borrower, any action taken or omitted to be taken by Lenderproofs of claim, complaints, motions, applications, notices and other documents, in good faithany case in respect to such lessor or any such fee owner under the Bankruptcy Code. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in reliance thereoneffect until all of the obligations secured by this Lien Instrument shall have been satisfied and discharged in full. Borrower shall cause such Mortgage Borrower to exercise each individual option, if any, to extend or renew Any amounts received by Lender as damages arising out of the term rejection of such the Ground Lease upon written demand by as aforesaid shall be applied first to all costs and expenses of Lender made at (including, without limitation, attorney fees) incurred in connection with the exercise of any time within one (1) year prior to of its rights or remedies under this section and then in accordance with the last day upon which any such option may be exercised.provisions of SECTION
Appears in 1 contract
Samples: Deed of Trust (Behringer Harvard Short Term Opportunity Fund I Lp)
Ground Lease Covenants. (a) With respect to each Ground Lease, (a) Borrower i. Mortgagor shall cause each Mortgage Borrower that is the holder of the leasehold interest under such Ground Lease to (i) pay all rents, additional rents and other sums required to be paid by such Mortgage Borrowerit, as tenant under and pursuant to the provisions of such the Ground Lease, (ii) diligently perform and observe in all material respects all of the terms, covenants and conditions of such the Ground Lease on the its part of such Mortgage Borrower, as tenant to be performed thereunder, (iii) promptly notify Lender Agent of the giving of any notice by under the landlord under such Ground Lease to such Mortgage Borrower of any default by such Mortgage Borrower, as tenant any party thereunder, and deliver to Lender Agent a true copy of each such notice within five (5) Business Days days of receipt and (iv) promptly notify Lender Agent of any bankruptcy, reorganization or insolvency of any party to the landlord under such Ground Lease or of any notice thereof, and deliver to Lender Agent a true copy of such notice within five (5) Business Days days of Borrower’s receipt. Borrower shall notNo Mortgagor shall, without the prior consent of LenderAgent, cause such Mortgage Borrower to surrender the leasehold estate created by such the Ground Lease or terminate or cancel such the Ground Lease or modify, change, supplement, alter alter, amend or amend such waive any term of the Ground Lease in any material respectLease, either orally or in writing, except as expressly set forth in Section 7.23(a) of the Credit Agreement, and if such Mortgage Borrower any Mortgagor shall default in the performance or observance of any term, covenant or condition of such the Ground Lease on the part of such Mortgage BorrowerLease, as tenant thereunder, and Agent shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Borrower shall permit Lender to have the right right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such the Ground Lease on the part of such Mortgage Borrower to be performed or observed on behalf of Borrowerobserved, to the end that the rights of such Mortgage Borrower Mortgagor in, to and under such the Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under such the Ground Lease shall deliver to Lender Agent a copy of any notice of default under such the Ground Lease, such notice shall constitute full protection to Lender Agent for any action taken or omitted to be taken by LenderAgent, in good faith, in reliance thereon. Borrower Each Mortgagor shall cause such Mortgage Borrower to exercise each individual its option, if i f any, to extend or renew the term of such the Ground Lease upon written demand by Lender Agent made at any time within one (1) year prior to the last day upon which any such option may be exercised, and each Mortgagor hereby expressly authorizes and appoints Agent its attorney-in-fact to exercise any such option in the name of and upon behalf of such Mortgagor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
ii. Notwithstanding anything contained in the Ground Lease to the contrary and except for the Operating Lease, no Mortgagor shall further sublet any portion of the Property without prior written consent of Agent, except as expressly permitted by Section 7.16 of the Credit Agreement.
iii. In the event of any default by any Mortgagor in the performance of any of its obligations under the Ground Lease, including, without limitation, any default in the payment of rent and other charges and impositions made payable by the lessee thereunder, then, in the case of a default in the payment of any monetary obligation, Agent may, at its option and without notice, make payment to cure such default, or, in the case of a default in the performance of any non-monetary obligation, Agent may, at its option, cause the default or defaults to be remedied and otherwise exercise any and all of the rights of Mortgagor thereunder in the name of and on behalf of Mortgagor.
iv. If pursuant to subsection 365(h) of the Bankruptcy Code, any Mortgagor seeks to offset, against the rent reserved in the Ground Lease, the amount of any damages caused by the nonperformance by the ground lessor of any of its obligations thereunder after the rejection by such ground lessor under the Bankruptcy Code, then such Mortgagor shall not effect any offset of the amounts so objected to by Agent. If Agent has failed to object as aforesaid within ten (10) days after notice from such Mortgagor in accordance with the first sentence of this subsection, such Mortgagor may proceed to offset the amounts set forth in such Mortgagor's notice to Agent.
v. In any action, proceeding, motion or notice shall be commenced or filed in respect of the ground lessor of all or any part of the Property in connection with any case under the Bankruptcy Code, Agent and Mortgagor shall cooperatively conduct and control any such litigation with counsel agreed upon between Mortgagor and Agent in connection with such litigation. Borrower shall, upon demand, pay to Agent all costs and expenses (including reasonable attorneys' fees and costs) actually paid or actually incurred by Agent or any Lender in connection with the cooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be secured by the Lien of this Security Instrument.
Appears in 1 contract
Ground Lease Covenants. Without limitation of the other provisions herein (a) With including, without limitation, Section 4.22 hereof), Borrower makes the following covenants with respect to each the Ground Lease, :
(a) Borrower shall cause each Mortgage Borrower that is the holder of the leasehold interest under such Ground Lease to (i) pay (or cause to be paid) all rents, additional rents and other sums required to be paid by such Mortgage BorrowerBxxxxxxx, as tenant under and pursuant to the provisions of such the Ground Lease, (ii) diligently perform and observe in all material respects (or cause to be performed and observed) all of the terms, covenants and conditions of such the Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of any change in the Payment Instructions and of the giving of any notice by the landlord under such the Ground Lease to such Mortgage Borrower of any default by Borrower and shall, within five (5) Business Days of receipt of such Mortgage Borrowernotice or change, as tenant thereunder, and (A) deliver to Lender a true copy of each such notice within five or evidence of such change (5as applicable) Business Days and (B) in the case of receipt a change in the Payment Instructions, use commercially reasonable efforts to deliver to Lender a new IRS Form W9 with respect to the landlord under the Ground Lease (or evidence reasonably acceptable to Lender that the IRS Form W9 with respect to the landlord under the Ground Lease then held by Lender remains accurate and valid) and (iv) promptly after Borrower acquires knowledge thereof, notify Lender of any bankruptcy, reorganization or insolvency of the landlord under such the Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of BorrowerBxxxxxxx’s receipt. .
(b) Borrower shall not, without the prior consent of Lender, cause such Mortgage Borrower to surrender the leasehold estate created by such the Ground Lease or terminate or cancel such the Ground Lease or modify, change, supplement, alter or amend such the Ground Lease in any material respect(other than an amendment that extends the term of the Ground Lease), either orally or in writing, and if such Mortgage Borrower shall default in any material respect in the performance or observance of any material term, covenant or condition of such the Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, Borrower and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Borrower Lender shall permit Lender to have the right right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such the Ground Lease on the part of such Mortgage Borrower to be performed or observed on behalf of Borrower, to the end that the rights of such Mortgage Borrower in, to and under such the Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under such the Ground Lease shall deliver to Lender a copy of any notice of default under such the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by LenderLxxxxx, in good faith, in reliance thereon. .
(c) Borrower, a Borrower Party and/or any Affiliate of the foregoing shall be permitted to acquire the fee interest under the Ground Lease in the Individual Property subject to the Ground Lease without Lender’s consent so long as (I) no Event of Default has occurred and is continuing, (II) the Ground Lease shall survive such acquisition, (III) the lien of Lender’s Security Instrument shall be spread to be a first priority security interest in such fee interest under the Ground Lease (subject only to Permitted Encumbrances) pursuant to a spreader agreement in form and substance reasonably acceptable to Lender, (IV) Lender’s existing first priority interest in the leasehold estate created pursuant to the Ground Lease and Lender’s existing first priority fee interest in the portion of such Individual Property not subject to the Ground Lease (subject only to Permitted Encumbrances) shall remain unimpaired, (V) such acquisition shall comply with REMIC Requirements and Lender shall receive a REMIC Opinion in connection therewith, (VI) Lender shall receive endorsements to Lender’s Title Insurance Policy insuring such fee interest in the Individual Property subject to the Ground Lease and confirming the priority Lender’s interest in such fee interest under the Ground Lease, the leasehold interest under the Ground Lease and Lxxxxx’s fee interest in the portion of such Individual Property not subject to the Ground Lease, (VII) Borrower and each SPE Component Entity shall continue to be a Single Purpose Entity after giving effect to such acquisition and (VIII) Borrower shall cause such Mortgage Borrower have paid to exercise each individual optionLender (x) all out-of-pocket costs and expenses, if anyincluding reasonable attorneys’ fees, to extend or renew the term of such Ground Lease upon written demand incurred by Lender made at any time within one in connection therewith and (1y) year prior to all fees, costs and expenses of all third parties incurred in connection therewith (the last day upon which any such option may be exercisedfee acquisition in accordance with the terms and conditions of this Section 4.23(c), the “Fee Acquisition”).
Appears in 1 contract
Samples: Loan Agreement (Istar Inc.)
Ground Lease Covenants. (a) With Without limitation of the other provisions herein, each Borrower makes the following covenants with respect to each Ground Lease, :
(a) Borrower shall cause each Mortgage Borrower that is the holder of the leasehold interest under such Ground Lease to (i) pay (or cause to be paid) all rents, additional rents and other sums required to be paid by such Mortgage Borrower, as tenant under and pursuant to the provisions of such each Ground LeaseLease when due and payable thereunder, (ii) diligently perform and observe in all material respects (or cause to be performed and observed) all of the terms, covenants and conditions of such each Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord under such any Ground Lease to such Mortgage Borrower of any default by such Mortgage Borrower, as tenant thereunder, Borrower and deliver to Lender a true copy of each such notice within five seven (57) Business Days of receipt receipt, and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under such any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five seven (57) Business Days of Borrower’s receipt. .
(b) Borrower shall not, without the prior consent of Lender, cause such Mortgage Borrower to surrender the leasehold estate created by such any Ground Lease or terminate or cancel such any Ground Lease or modify, change, supplement, alter or amend such any Ground Lease in any material respectLease, either orally or in writing, and if such Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of such any Ground Lease on the part of such Mortgage Borrower, as tenant thereunder, Borrower and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Borrower Lender shall permit Lender to have the right right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Ground Lease on the part of such Mortgage Borrower to be performed or observed on behalf of Borrower, to the end that the rights of such Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under such Ground Lease shall deliver to Lender a copy of any notice of default under such Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. .
(c) Borrower shall cause such Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease within sixty (60) days prior to the expiration of such Ground Lease upon written demand by (the “Renewal Deadline”), and Borrower hereby expressly authorizes and appoints Lender made at any time within one (1) year prior its attorney-in-fact to the last day upon which exercise any such option may in the name of and upon behalf of Borrower exercisable upon an Event of Default, which power of attorney shall be exercisedirrevocable and shall be deemed to be coupled with an interest.
(d) Notwithstanding anything contained in any Ground Lease to the contrary, Borrower shall not, without prior written consent of Lender, sublet any portion of the leasehold estate created by the Ground Lease except in accordance with the express terms and conditions of this Agreement.
Appears in 1 contract
