Ground Lease Covenants. (a) Each Loan Party shall (i) pay or cause to be paid on or before the due date thereof all Ground Lease Payments, (ii) perform and observe every covenant to be performed or observed by a Loan Party under the applicable Ground Lease; (iii) refrain from doing anything and not do or permit any act, event or omission, as a result of which, there is reasonably likely to occur a default or breach under any Ground Lease; (iv) promptly give Administrative Agent notice of any default under any Ground Lease upon learning of such default and promptly deliver to Administrative Agent a copy of each notice of default and all responses to such notice of default and all other material instruments, notices or demands received or delivered by a Loan Party under or in connection with the applicable Ground Lease; (v) promptly notify Administrative Agent in writing in the event of the initiation of any litigation or arbitration proceeding affecting a Loan Party or the Real Property under or in connection with the applicable Ground Lease; (vi) not voluntarily or involuntarily, directly or indirectly, surrender, terminate or cancel any Ground Lease nor, without the prior written consent of Administrative Agent, fail to exercise in a timely manner any purchase option(s) or renewal option(s) contained in any Ground Lease; and (vii) not modify, alter or amend any Ground Lease, either orally or in writing, in any material respect without the prior written consent of the Administrative Agent. Any assignment, transfer, conveyance, surrender, termination, cancellation, modification, alteration or amendment of any Ground Lease in contravention of the foregoing shall be void and of no force and effect. (b) Each Loan Party acknowledges and agrees that no release or forbearance of any of its obligations under any Ground Lease or otherwise shall release such Loan Party from any of its obligations under the Loan Documents, including without limitation the performance of all of the terms, provisions, covenants, conditions and agreements contained in any applicable Ground Lease, to be kept, performed and complied with by such Loan Party therein. (c) Each Loan Party shall from time to time within ten (10) Business Days of Administrative Agent’s request to execute and deliver, use reasonable efforts to obtain from the ground lessor, an estoppel certificate in a form reasonably acceptable to Administrative Agent certifying to such matters as Administrative Agent may reasonably require, including without limitation, the following: (a) the name of the tenant entitled to possession of the leasehold estate under the applicable Ground Lease; (b) that the applicable Ground Lease is in full force and effect and has not been modified or, if it has been modified, the date of each such modification (together with copies of each modification); (c) the date to which the fixed (or base) rent has been paid under the applicable Ground Lease; (d) the dates to which all other fees or charges have been paid under the applicable Ground Lease; (e) whether any notice of default has been sent to any Loan Party under the applicable Ground Lease which has not been cured, and if such notice has been sent, the date it was sent and the nature of the default; (f) to the best of the ground lessor’s knowledge, whether any Loan Party is in default under such Ground Lease, and if so, the nature thereof in reasonable detail. (d) In the event that it is claimed by any Governmental Authority that any tax is due, unpaid or payable by a Loan Party upon or in connection with any Ground Lease, such Loan Party shall promptly either (a) pay such tax, charge or imposition when due and deliver to Administrative Agent reasonably satisfactory proof of payment thereof or (b) contest such tax in accordance with the applicable provisions of this Agreement. If liability for such tax is asserted against Administrative Agent, Administrative Agent will give to such Loan Party prompt notice of such claim, and such Loan Party, upon complying with the provisions of this Agreement shall have full right and authority to contest such claim.
Appears in 3 contracts
Samples: Credit Agreement (Campus Crest Communities, Inc.), Credit Agreement (Campus Crest Communities, Inc.), Credit Agreement (Campus Crest Communities, Inc.)
Ground Lease Covenants. (a) Each Loan Party shall (i) pay or cause to be paid on or before the due date thereof all Ground Lease Payments, (ii) perform and observe every covenant to be performed or observed by a Loan Party under the applicable Ground Lease; (iii) refrain from doing anything and not do or permit any act, event or omission, as a result of which, there is reasonably likely to occur a default or breach under any Ground Lease; (iv) promptly give Administrative Agent notice of any default under any Ground Lease upon learning of such default and promptly deliver to Administrative Agent a copy of each notice of default and all responses to such notice of default and all other material instruments, notices or demands received or delivered by a Loan Party under or in connection with the applicable Ground Lease; (v) promptly notify Administrative Agent in writing in the event of the initiation of any litigation or arbitration proceeding affecting a Loan Party or the Real Property under or in connection with the applicable Ground Lease; (vi) not voluntarily or involuntarily, directly or indirectly, surrender, terminate or cancel any Ground Lease nor, without the prior written consent of Administrative Agent, fail to exercise in a timely manner any purchase option(s) or renewal option(s) contained in any Ground Lease; and (vii) not modify, alter or amend any Ground Lease, either orally or in writing, in any material respect writing without the prior written consent of the Administrative Agent. Any assignment, transfer, conveyance, surrender, termination, cancellation, modification, alteration or amendment of any Ground Lease in contravention of the foregoing shall be void and of no force and effect.
(b) Each Loan Party acknowledges and agrees that no release or forbearance of any of its obligations under any Ground Lease or otherwise shall release such Loan Party from any of its obligations under the Loan Documents, including without limitation the performance of all of the terms, provisions, covenants, conditions and agreements contained in any applicable Ground Lease, to be kept, performed and complied with by such Loan Party therein.
(c) In the event of a default by any Loan Party under any Ground Lease, Administrative Agent may (but shall not be obligated to), in its sole discretion and without notice to any Loan Party, cause such default or defaults by such Loan Party to be remedied and otherwise take or perform such other actions as Administrative Agent may reasonably deem necessary or desirable as a result thereof or in connection therewith. Borrower shall reimburse Administrative Agent for all advances reasonably made and expenses reasonably incurred by Administrative Agent in curing any such default(s) (including, without limitation, reasonable attorneys’ fees), together with interest thereon from the date incurred until the same is paid in full to Administrative Agent and all such sums so advanced shall be secured by the applicable Mortgage. The provisions of this subsection are in addition to any other right or remedy given to or allowed Administrative Agent under such Ground Lease or otherwise.
(d) If any Ground Lease is cancelled or terminated and Administrative Agent or its nominee shall acquire an interest in any new lease of the Real Property, each Loan Party shall have no right, title or interest in or to the new lease or the leasehold estate created by such new lease.
(e) Each Loan Party shall from time to time within ten (10) Business Days of Administrative Agent’s request to execute and deliver, use reasonable efforts to obtain from the ground lessor, an estoppel certificate in a form reasonably acceptable to Administrative Agent certifying to such matters as Administrative Agent may reasonably require, including without limitation, the following: (a) the name of the tenant entitled to possession of the leasehold estate under the applicable Ground Lease; (b) that the applicable Ground Lease is in full force and effect and has not been modified or, if it has been modified, the date of each such modification (together with copies of each modification); (c) the date to which the fixed (or base) rent has been paid under the applicable Ground Lease; (d) the dates to which all other fees or charges have been paid under the applicable Ground Lease; (e) whether any notice of default has been sent to any Loan Party under the applicable Ground Lease which has not been cured, and if such notice has been sent, the date it was sent and the nature of the default; (f) to the best of the ground lessor’s knowledge, whether any Loan Party is in default under such Ground Lease, and if so, the nature thereof in reasonable detail.
(df) Notwithstanding anything contained herein or otherwise to the contrary, Administrative Agent shall not have any liability or obligation under any Ground Lease, by virtue of its acceptance of the applicable Mortgage. Each Loan Party acknowledges and agrees that Administrative Agent shall be liable for the obligations of a Loan Party arising under any Ground Lease, as applicable, for only that period of time, if any, during which Administrative Agent is in possession of the leasehold estate created thereby and has acquired, by foreclosure, power of sale or otherwise, and is holding, all of such Loan Party’s right, title and interest as tenant under the applicable Ground Lease.
(g) Notwithstanding anything contained herein or otherwise to the contrary, each Loan Party hereby assigns, transfers and sets over to Administrative Agent any and all rights and interests that may arise in favor of such Loan Party in connection with or as a result of the bankruptcy or insolvency of the ground lessor, as applicable, including, without limitation, all of such Loan Party’s right, title and interest in, to and under §365 of the Bankruptcy Code (11 U.S.C. §365), as the same may be amended, supplemented or modified from time to time.
(h) In the event that it is claimed by any Governmental Authority governmental authority that any tax is due, unpaid or payable by a Loan Party upon or in connection with any Ground Lease, such Loan Party shall promptly either (a) pay such tax, charge or imposition when due and deliver to Administrative Agent reasonably satisfactory proof of payment thereof or (b) contest such tax in accordance with the applicable provisions of this Agreement. If liability for such tax is asserted against Administrative Agent, Administrative Agent will give to such Loan Party prompt notice of such claim, and such Loan Party, upon complying with the provisions of this Agreement shall have full right and authority to contest such claim.
(i) It shall be an immediate Event of Default hereunder if: (a) a Loan Party shall fail in the payment of any Ground Lease Payments as and when the same is payable under the applicable Ground Lease (unless waived by the ground lessor under such Ground Lease); (b) there shall occur any default by a Loan Party under the applicable Ground Lease in the observance or performance of any term, covenant or condition on the part of such Loan Party to be observed or performed thereunder (unless waived by the lessor under such Ground Lease); (c) any one or more of the events referred to in the applicable Ground Lease shall occur which would cause the applicable Ground Lease to terminate without notice or action by the ground lessor under such Ground Lease or which would entitle the ground lessor to terminate such Ground Lease by giving notice to a Loan Party (unless waived by the lessor under such Ground Lease); (d) the leasehold estate created by any Ground Lease shall be surrendered or such Ground Lease shall be terminated or canceled for any reason or under any circumstances, or (e) any of the terms, covenants or conditions of any Ground Lease shall in any manner be materially modified, changed, supplemented, altered, or amended without the prior written consent of Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Campus Crest Communities, Inc.), Credit Agreement (Campus Crest Communities, Inc.)
Ground Lease Covenants. For so long as the Indebtedness shall remain outstanding, Borrower hereby covenants, warrants and represents as follows:
(a) Each Loan Party shall (i) pay or cause to be paid on or before the due date thereof all The Ground Lease Payments, (ii) perform is and observe every covenant to shall be performed or observed by a Loan Party under the applicable Ground Lease; (iii) refrain from doing anything maintained in full force and effect. Borrower shall not do suffer or permit any act, event amendments or omission, as a result modifications of which, there is reasonably likely to occur a default or breach under any Ground Lease; (iv) promptly give Administrative Agent notice of any default under any the Ground Lease upon learning of to be made, except for such default and promptly deliver to Administrative Agent a copy of each notice of default and all responses to such notice of default and all other material instruments, notices amendments or demands received or delivered by a Loan Party under or in connection with the applicable Ground Lease; (v) promptly notify Administrative Agent modifications as are permitted in writing in the event of the initiation of any litigation or arbitration proceeding affecting a Loan Party or the Real Property under or in connection with the applicable Ground Lease; (vi) not voluntarily or involuntarily, directly or indirectly, surrender, terminate or cancel any Ground Lease nor, without the prior written consent of Administrative by Agent, fail to exercise in a timely manner any purchase option(s) or renewal option(s) contained in any Ground Lease; and (vii) such permission not modify, alter or amend any Ground Lease, either orally or in writing, in any material respect without the prior written consent of the Administrative Agent. Any assignment, transfer, conveyance, surrender, termination, cancellation, modification, alteration or amendment of any Ground Lease in contravention of the foregoing shall be void and of no force and effectunreasonably withheld.
(b) Each Loan Party acknowledges Borrower shall cause all rent, additional rent and agrees other charges payable under the Ground Lease to be paid when due (subject to (i) any applicable notice and cure periods under the Ground Lease and (ii) appropriate contesting of any such rent or other charges, if any, solely as permitted by the Ground Lease, provided that Agent is provided with adequate security for such contest).
(c) There are, as of the date hereof, and will be, no release or forbearance defenses to Borrower’s enforcement of its rights under the Ground Lease.
(d) As of the date hereof, (i) Borrower is not in default in the performance of any of its obligations under any the Ground Lease Lease, and (ii) there are no circumstances which, alone or otherwise shall release such Loan Party from with the passage of time or the giving of notice or both, would constitute an event of default thereunder.
(e) To Borrower’s knowledge, as of the date hereof, Ground Lessor is not in default in the performance of any of its material obligations under the Loan DocumentsGround Lease.
(f) Borrower will promptly and faithfully, including without limitation in all material respects, observe, perform and comply, or cause the observance, performance of and compliance with, all the material terms, covenants and provisions of the termsGround Lease, provisionson its part to be observed, covenantsperformed and complied with, conditions and agreements contained in any applicable at the times set forth therein, and, upon acquiring knowledge of the same, will enforce the material obligations of Ground Lessor under the Ground Lease, to be kept, performed and complied with by such Loan Party thereinthe end that Borrower may enjoy all of the material rights granted it under the Ground Lease.
(cg) Each Loan Party shall from time to time within ten (10) Business Days of Administrative Without Agent’s request to execute and deliverprior written consent, use reasonable efforts to obtain from the ground lessor, an estoppel certificate in Borrower will not suffer or permit a form reasonably acceptable to Administrative Agent certifying to such matters as Administrative Agent may reasonably require, including without limitation, the following: (a) the name cancellation or termination of the tenant entitled to possession Ground Lease, nor any subletting or assignment of the leasehold estate any of Borrower’s interest under the applicable Ground Lease; (b) that the applicable Ground Lease is in full force (other than the Master Lease and effect and has not been modified orthe subleases permitted thereunder).
(h) Upon obtaining actual knowledge, if it has been modified, the date Borrower will give Agent prompt notice of each such modification (together with copies of each modification); (c) the date to which the fixed (or base) rent has been paid any default by any party under the applicable Ground Lease; (d) the dates to which all other fees or charges have been paid under the applicable Ground Lease; (e) whether any notice of default has been sent to any Loan Party under the applicable Ground Lease which has not been cured, and if such notice has been sent, the date it was sent and the nature of the default; (f) to the best of the ground lessor’s knowledge, whether any Loan Party is in default under such Ground Lease, and if so, promptly deliver to Agent copies of each notice of default sent or received by Borrower under the nature thereof in reasonable detailGround Lease.
(di) In Borrower will furnish to Agent such information and evidence as Agent may reasonably request concerning Borrower’s due observance, performance and compliance with the event that it is claimed by any Governmental Authority that any tax is dueterms, unpaid or payable by a Loan Party upon or in connection with any covenants and provisions of the Ground Lease. If any default by Borrower has occurred under the Ground Lease and Ground Lessor has delivered written notice thereof, Agent shall have the right, but not the obligation, to cure such Loan Party default and all reasonable sums paid to cure any such default shall promptly either (a) pay such tax, charge or imposition when due bear interest at the Default Rate and deliver shall be added to Administrative Agent reasonably satisfactory proof of payment thereof or (b) contest such tax the Indebtedness in accordance with the applicable provisions of Section 7 of this Agreement. If liability for Deed of Trust.
(j) Fee title to the Land and the leasehold estate conveyed by the Ground Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of said estates in either Ground Lessor, Borrower or a third party, whether by purchase or otherwise and accordingly, if Borrower acquires the fee title or any other estate, title or interest in the Land demised by the Ground Lease, or any part thereof, the lien of this Deed of Trust shall attach to, cover and be a lien upon such tax is asserted against Administrative Agentacquired estate, Administrative Agent will give to such Loan Party prompt notice title or interest and same shall thereupon be and become a part of such claim, and such Loan Party, upon complying the Property with the provisions same force and effect as if specifically encumbered herein.
(k) Neither Agent nor Lender shall have any liability or obligation under the Ground Lease by reason of its acceptance of this Agreement shall have full right and authority to contest such claimDeed of Trust.
Appears in 1 contract
Samples: Leasehold Deed of Trust (Grubb & Ellis Healthcare REIT II, Inc.)
Ground Lease Covenants. (a) Each Loan Party shall Borrower covenants and agrees as follows: (i) pay or cause promptly and faithfully to be paid on or before the due date thereof all Ground Lease Paymentsobserve, (ii) perform and observe every covenant to be performed or observed by a Loan Party under comply in all material respects with all of the applicable terms, covenants and provisions of the Ground Lease; (iiiii) to refrain from doing anything and not do or permit any act, event or omission, as a result of which, there is reasonably likely to occur a default or breach under any the Ground Lease; (iviii) to promptly give Administrative Agent Lender notice of any default under any the Ground Lease upon learning of such default and promptly immediately deliver to Administrative Agent Lender a copy of each notice of default and all responses to such notice of default and all other material instruments, notices or demands received or delivered by a Loan Party Borrower under or in connection with the applicable Ground Lease; (viv) to promptly notify Administrative Agent Lender in writing in the event of the initiation of any litigation or arbitration proceeding affecting a Loan Party Borrower or the Real Property under or in connection with the applicable Ground Lease; (v) within ten (10) Business Days of each request by Lender to furnish to Lender an estoppel certificate from Borrower in such form as Lender may reasonably request from time to time (provided no Event of Default exists, in no event more than two (2) times in any twelve (12) month period) concerning Borrower’s due observance, performance and compliance in all material respects with the terms, covenants and provisions of the Ground Lease; (vi) it will not voluntarily or involuntarily, directly or indirectly, assign, transfer or convey the Property or the Leasehold Estate in violation of the Ground Lease or this Agreement, nor surrender, terminate or cancel any the Ground Lease nor, without the prior written consent of Administrative AgentLender, fail to exercise in a timely manner any purchase option(s) or renewal option(s) contained in any the Ground Lease, if applicable, nor, without the prior written consent of Lender; and (vii) not modify, alter or amend any the Ground Lease, either orally or in writing, in any material respect without the prior written consent of the Administrative Agent. writing Any assignment, transfer, conveyance, surrender, termination, cancellation, modification, alteration or amendment of any the Ground Lease in contravention of the foregoing shall be void and of no force and effect.
(b) Each Loan Party acknowledges and agrees that no release or forbearance of any of its obligations under any Ground Lease or otherwise shall release such Loan Party from any of its obligations under the Loan Documents, including without limitation the performance of all of the terms, provisions, covenants, conditions and agreements contained in any applicable Ground Lease, to be kept, performed and complied with by such Loan Party therein.
(c) Each Loan Party shall from time to time within ten (10) Business Days of Administrative Agent’s request to execute and deliver, use reasonable efforts to obtain from the ground lessor, an estoppel certificate in a form reasonably acceptable to Administrative Agent certifying to such matters as Administrative Agent may reasonably require, including without limitation, the following: (a) the name of the tenant entitled to possession of the leasehold estate under the applicable Ground Lease; (b) that the applicable Ground Lease is in full force and effect and has not been modified or, if it has been modified, the date of each such modification (together with copies of each modification); (c) the date to which the fixed (or base) rent has been paid under the applicable Ground Lease; (d) the dates to which all other fees or charges have been paid under the applicable Ground Lease; (e) whether any notice of default has been sent to any Loan Party under the applicable Ground Lease which has not been cured, and if such notice has been sent, the date it was sent and the nature of the default; (f) to the best of the ground lessor’s knowledge, whether any Loan Party is in default under such Ground Lease, and if so, the nature thereof in reasonable detail.
(d) In the event that it is claimed by any Governmental Authority that any tax is due, unpaid or payable by a Loan Party upon or in connection with any Ground Lease, such Loan Party shall promptly either (a) pay such tax, charge or imposition when due and deliver to Administrative Agent reasonably satisfactory proof of payment thereof or (b) contest such tax in accordance with the applicable provisions of this Agreement. If liability for such tax is asserted against Administrative Agent, Administrative Agent will give to such Loan Party prompt notice of such claim, and such Loan Party, upon complying with the provisions of this Agreement shall have full right and authority to contest such claim.
Appears in 1 contract
Ground Lease Covenants. For so long as the Indebtedness shall remain outstanding, Borrower hereby covenants, warrants and represents as follows:
(a) Each Loan Party shall (i) pay or cause to be paid on or before the due date thereof all The Ground Lease Payments, (ii) perform is and observe every covenant to shall be performed or observed by a Loan Party under the applicable Ground Lease; (iii) refrain from doing anything maintained in full force and effect. Borrower shall not do suffer or permit any act, event amendments or omission, as a result modifications of which, there is reasonably likely to occur a default or breach under any Ground Lease; (iv) promptly give Administrative Agent notice of any default under any the Ground Lease upon learning of to be made, except for such default and promptly deliver to Administrative Agent a copy of each notice of default and all responses to such notice of default and all other material instruments, notices amendments or demands received or delivered by a Loan Party under or in connection with the applicable Ground Lease; (v) promptly notify Administrative Agent modifications as are permitted in writing in the event of the initiation of any litigation or arbitration proceeding affecting a Loan Party or the Real Property under or in connection with the applicable Ground Lease; (vi) not voluntarily or involuntarily, directly or indirectly, surrender, terminate or cancel any Ground Lease nor, without the prior written consent of Administrative by Agent, fail to exercise in a timely manner any purchase option(s) or renewal option(s) contained in any Ground Lease; and (vii) such permission not modify, alter or amend any Ground Lease, either orally or in writing, in any material respect without the prior written consent of the Administrative Agent. Any assignment, transfer, conveyance, surrender, termination, cancellation, modification, alteration or amendment of any Ground Lease in contravention of the foregoing shall be void and of no force and effectunreasonably withheld.
(b) Each Loan Party acknowledges Borrower shall cause all rent, additional rent and agrees other charges payable under the Ground Lease to be paid when due (subject to (i) any applicable notice and cure periods under the Ground Lease and (ii) appropriate contesting of any such rent or other charges, if any, solely as permitted by the Ground Lease, provided that Agent is provided with adequate security for such contest).
(c) There are, as of the date hereof, and will be, no release or forbearance defenses to Borrower’s enforcement of its rights under the Ground Lease.
(d) As of the date hereof, (i) Borrower is not in default in the performance of any of its obligations under any the Giound Lease, and (ii) there are no circumstances which, alone or with the passage of time or the giving of notice or both, would constitute an event of default thereunder.
(e) To Borrower’s knowledge, as of the date hereof, Ground Lease or otherwise shall release such Loan Party from Lessor is not in default in the performance of any of its material obligations under the Loan DocumentsGround Lease.
(f) Borrower will promptly and faithfully, including without limitation in all material respects, observe, perform and comply, or cause the observance, performance of and compliance with, all the material terms, covenants and provisions of the termsGround Lease, provisionson its part to be observed, covenantsperformed and complied with, conditions and agreements contained in any applicable at the times set forth therein, and, upon acquiring knowledge of the same, will enforce the material obligations of Ground Lessor under the Ground Lease, to be kept, performed and complied with by such Loan Party thereinthe end that Borrower may enjoy all of the material rights granted it under the Ground Lease.
(cg) Each Loan Party shall from time to time within ten (10) Business Days of Administrative Without Agent’s request to execute and deliverprior written consent, use reasonable efforts to obtain from the ground lessor, an estoppel certificate in Borrower will not suffer or permit a form reasonably acceptable to Administrative Agent certifying to such matters as Administrative Agent may reasonably require, including without limitation, the following: (a) the name cancellation or termination of the tenant entitled to possession Ground Lease, nor any subletting or assignment of the leasehold estate any of Borrower’s interest under the applicable Ground Lease; (b) that the applicable Ground Lease is in full force (other than the Master Lease and effect and has not been modified orthe subleases permitted thereunder).
(h) Upon obtaining actual knowledge, if it has been modified, the date Borrower will give Agent prompt notice of each such modification (together with copies of each modification); (c) the date to which the fixed (or base) rent has been paid any default by any party under the applicable Ground Lease; (d) the dates to which all other fees or charges have been paid under the applicable Ground Lease; (e) whether any notice of default has been sent to any Loan Party under the applicable Ground Lease which has not been cured, and if such notice has been sent, the date it was sent and the nature of the default; (f) to the best of the ground lessor’s knowledge, whether any Loan Party is in default under such Ground Lease, and if so, promptly deliver to Agent copies of each notice of default sent or received by Borrower under the nature thereof in reasonable detailGround Lease.
(di) In Borrower will furnish to Agent such information and evidence as Agent may reasonably request concerning Borrower’s due observance, performance and compliance with the event that it is claimed by any Governmental Authority that any tax is dueterms, unpaid or payable by a Loan Party upon or in connection with any covenants and provisions of the Ground Lease. If any default by Borrower has occurred under the Ground Lease and Ground Lessor has delivered written notice thereof, Agent shall have the right, but not the obligation, to cure such Loan Party default and all reasonable sums paid to cure any such default shall promptly either (a) pay such tax, charge or imposition when due bear interest at the Default Rate and deliver shall be added to Administrative Agent reasonably satisfactory proof of payment thereof or (b) contest such tax the Indebtedness in accordance with the applicable provisions of Section 7 of this AgreementMortgage. If liability for Fee title to the Land and the leasehold estate conveyed by the Ground Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of said estates in either Ground Lessor, Borrower or a third party, whether by purchase or otherwise and accordingly, if Borrower acquires the fee title or any other estate, title or interest in the Land demised by the Ground Lease, or any part thereof, the lien of this Mortgage shall attach to, cover and be a lien upon such tax is asserted against Administrative Agentacquired estate, Administrative Agent will give to such Loan Party prompt notice title or interest and same shall thereupon be and become a part of such claim, and such Loan Party, upon complying the Property with the provisions same force and effect as if specifically encumbered herein.
(k) Neither Agent nor Lender shall have any liability or obligation under the Ground Lease by reason of its acceptance of this Agreement shall have full right and authority to contest such claimMortgage.
Appears in 1 contract
Samples: Line of Credit Mortgage and Security Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Ground Lease Covenants. For so long as the Indebtedness shall remain outstanding, Borrower hereby covenants, warrants and represents as follows:
(a) Each Loan Party shall (i) pay or cause to be paid on or before the due date thereof all The Ground Lease Payments, (ii) perform is and observe every covenant to shall be performed or observed by a Loan Party under the applicable Ground Lease; (iii) refrain from doing anything maintained in full force and effect. Borrower shall not do suffer or permit any act, event amendments or omission, as a result modifications of which, there is reasonably likely to occur a default or breach under any Ground Lease; (iv) promptly give Administrative Agent notice of any default under any the Ground Lease upon learning of to be made, except for such default and promptly deliver to Administrative Agent a copy of each notice of default and all responses to such notice of default and all other material instruments, notices amendments or demands received or delivered by a Loan Party under or in connection with the applicable Ground Lease; (v) promptly notify Administrative Agent modifications as are permitted in writing in the event of the initiation of any litigation or arbitration proceeding affecting a Loan Party or the Real Property under or in connection with the applicable Ground Lease; (vi) not voluntarily or involuntarily, directly or indirectly, surrender, terminate or cancel any Ground Lease nor, without the prior written consent of Administrative by Agent, fail to exercise in a timely manner any purchase option(s) or renewal option(s) contained in any Ground Lease; and (vii) such permission not modify, alter or amend any Ground Lease, either orally or in writing, in any material respect without the prior written consent of the Administrative Agent. Any assignment, transfer, conveyance, surrender, termination, cancellation, modification, alteration or amendment of any Ground Lease in contravention of the foregoing shall be void and of no force and effectunreasonably withheld.
(b) Each Loan Party acknowledges Borrower shall cause all rent, additional rent and agrees other charges payable under the Ground Lease to be paid when due (subject to (i) any applicable notice and cure periods under the Ground Lease and (ii) appropriate contesting of any such rent or other charges, if any, solely as permitted by the Ground Lease, provided that Agent is provided with adequate security for such contest).
(c) There are, as of the date hereof, and will be, no release or forbearance defenses to Borrower’s enforcement of its rights under the Ground Lease.
(d) As of the date hereof, (i) Borrower is not in default in the performance of any of its obligations under any the Ground Lease Lease, and (ii) there are no circumstances which, alone or otherwise shall release such Loan Party from with the passage of time or the giving of notice or both, would constitute an event of default thereunder.
(e) To Borrower’s knowledge, as of the date hereof, Ground Lessor is not in default in the performance of any of its material obligations under the Loan DocumentsGround Lease.
(f) Borrower will promptly and faithfully, including without limitation in all material respects, observe, perform and comply, or cause the observance, performance of and compliance with, all the material terms, covenants and provisions of the termsGround Lease, provisionson its part to be observed, covenantsperformed and complied with, conditions and agreements contained in any applicable at the times set forth therein, and, upon acquiring knowledge of the same, will enforce the material obligations of Ground Lessor under the Ground Lease, to be kept, performed and complied with by such Loan Party thereinthe end that Borrower may enjoy all of the material rights granted it under the Ground Lease.
(cg) Each Loan Party shall from time to time within ten (10) Business Days of Administrative Without Agent’s request to execute and deliverprior written consent, use reasonable efforts to obtain from the ground lessor, an estoppel certificate in Borrower will not suffer or permit a form reasonably acceptable to Administrative Agent certifying to such matters as Administrative Agent may reasonably require, including without limitation, the following: (a) the name cancellation or termination of the tenant entitled to possession Ground Lease, nor any subletting or assignment of the leasehold estate any of Borrower’s interest under the applicable Ground Lease; (b) that the applicable Ground Lease is in full force (other than the Master Lease and effect and has not been modified orthe subleases permitted thereunder).
(h) Upon obtaining actual knowledge, if it has been modified, the date Borrower will give Agent prompt notice of each such modification (together with copies of each modification); (c) the date to which the fixed (or base) rent has been paid any default by any party under the applicable Ground Lease; (d) the dates to which all other fees or charges have been paid under the applicable Ground Lease; (e) whether any notice of default has been sent to any Loan Party under the applicable Ground Lease which has not been cured, and if such notice has been sent, the date it was sent and the nature of the default; (f) to the best of the ground lessor’s knowledge, whether any Loan Party is in default under such Ground Lease, and if so, promptly deliver to Agent copies of each notice of default sent or received by Borrower under the nature thereof in reasonable detail.
(d) In the event that it is claimed by any Governmental Authority that any tax is due, unpaid or payable by a Loan Party upon or in connection with any Ground Lease. Borrower will furnish to Agent such information and evidence as Agent may reasonably request concerning Borrower’s due observance, performance and compliance with the terms, covenants and provisions of the Ground Lease. If any default by Borrower has occurred under the Ground Lease and Ground Lessor has delivered written notice thereof, Agent shall have the right, but not the obligation, to cure such Loan Party default and all reasonable sums paid to cure any such default shall promptly either (a) pay such tax, charge or imposition when due bear interest at the Default Rate and deliver shall be added to Administrative Agent reasonably satisfactory proof of payment thereof or (b) contest such tax the Indebtedness in accordance with the applicable provisions of this Agreement. If liability for such tax is asserted against Administrative Agent, Administrative Agent will give to such Loan Party prompt notice of such claim, and such Loan Party, upon complying with the provisions Section 7 of this Agreement shall have full right and authority to contest such claimDeed of Trust.
Appears in 1 contract
Samples: Leasehold Deed of Trust (Grubb & Ellis Healthcare REIT II, Inc.)
Ground Lease Covenants. For so long as the Indebtedness shall remain outstanding, Borrower hereby covenants, warrants and represents as follows:
(a) Each Loan Party shall (i) pay or cause to be paid on or before the due date thereof all The Ground Lease Payments, (ii) perform is and observe every covenant to shall be performed or observed by a Loan Party under the applicable Ground Lease; (iii) refrain from doing anything maintained in full force and effect. Borrower shall not do suffer or permit any act, event amendments or omission, as a result modifications of which, there is reasonably likely to occur a default or breach under any Ground Lease; (iv) promptly give Administrative Agent notice of any default under any the Ground Lease upon learning of to be made, except for such default and promptly deliver to Administrative Agent a copy of each notice of default and all responses to such notice of default and all other material instruments, notices amendments or demands received or delivered by a Loan Party under or in connection with the applicable Ground Lease; (v) promptly notify Administrative Agent modifications as are permitted in writing in the event of the initiation of any litigation or arbitration proceeding affecting a Loan Party or the Real Property under or in connection with the applicable Ground Lease; (vi) not voluntarily or involuntarily, directly or indirectly, surrender, terminate or cancel any Ground Lease nor, without the prior written consent of Administrative by Agent, fail to exercise in a timely manner any purchase option(s) or renewal option(s) contained in any Ground Lease; and (vii) such permission not modify, alter or amend any Ground Lease, either orally or in writing, in any material respect without the prior written consent of the Administrative Agent. Any assignment, transfer, conveyance, surrender, termination, cancellation, modification, alteration or amendment of any Ground Lease in contravention of the foregoing shall be void and of no force and effectunreasonably withheld.
(b) Each Loan Party acknowledges Borrower shall cause all rent, additional rent and agrees other charges payable under the Ground Lease to be paid when due (subject to (i) any applicable notice and cure periods under the Ground Lease and (ii) appropriate contesting of any such rent or other charges, if any, solely as permitted by the Ground Lease, provided that Agent is provided with adequate security for such contest).
(c) There are, as of the date hereof, and will be, no release or forbearance defenses to Borrower’s enforcement of its rights under the Ground Lease.
(d) As of the date hereof, (i) Borrower is not in default in the performance of any of its obligations under any the Ground Lease Lease, and (ii) there are no circumstances which, alone or otherwise shall release such Loan Party from with the passage of time or the giving of notice or both, would constitute an event of default thereunder.
(e) To Borrower’s knowledge, as of the date hereof, Ground Lessor is not in default in the performance of any of its material obligations under the Loan DocumentsGround Lease.
(f) Borrower will promptly and faithfully, including without limitation in all material respects, observe, perform and comply, or cause the observance, performance of and compliance with, all the material terms, covenants and provisions of the termsGround Lease, provisionson its part to be observed, covenantsperformed and complied with, conditions and agreements contained in any applicable at the times set forth therein, and, upon acquiring knowledge of the same, will enforce the material obligations of Ground Lessor under the Ground Lease, to be kept, performed and complied with by such Loan Party thereinthe end that Borrower may enjoy all of the material rights granted it under the Ground Lease.
(cg) Each Loan Party shall from time to time within ten (10) Business Days of Administrative Without Agent’s request to execute and deliverprior written consent, use reasonable efforts to obtain from the ground lessor, an estoppel certificate in Borrower will not suffer or permit a form reasonably acceptable to Administrative Agent certifying to such matters as Administrative Agent may reasonably require, including without limitation, the following: (a) the name cancellation or termination of the tenant entitled to possession Ground Lease, nor any subletting or assignment of the leasehold estate any of Xxxxxxxx’s interest under the applicable Ground Lease; (b) that the applicable Ground Lease is in full force (other than the Master Lease and effect and has not been modified orthe subleases permitted thereunder).
(h) Upon obtaining actual knowledge, if it has been modified, the date Borrower will give Agent prompt notice of each such modification (together with copies of each modification); (c) the date to which the fixed (or base) rent has been paid any default by any party under the applicable Ground Lease; (d) the dates to which all other fees or charges have been paid under the applicable Ground Lease; (e) whether any notice of default has been sent to any Loan Party under the applicable Ground Lease which has not been cured, and if such notice has been sent, the date it was sent and the nature of the default; (f) to the best of the ground lessor’s knowledge, whether any Loan Party is in default under such Ground Lease, and if so, promptly deliver to Agent copies of each notice of default sent or received by Borrower under the nature thereof in reasonable detail.
(d) In the event that it is claimed by any Governmental Authority that any tax is due, unpaid or payable by a Loan Party upon or in connection with any Ground Lease. Borrower will furnish to Agent such information and evidence as Agent may reasonably request concerning Xxxxxxxx’s due observance, performance and compliance with the terms, covenants and provisions of the Ground Lease. If any default by Borrower has occurred under the Ground Lease and Ground Lessor has delivered written notice thereof, Agent shall have the right, but not the obligation, to cure such Loan Party default and all reasonable sums paid to cure any such default shall promptly either (a) pay such tax, charge or imposition when due bear interest at the Default Rate and deliver shall be added to Administrative Agent reasonably satisfactory proof of payment thereof or (b) contest such tax the Indebtedness in accordance with the applicable provisions of this Agreement. If liability for such tax is asserted against Administrative Agent, Administrative Agent will give to such Loan Party prompt notice of such claim, and such Loan Party, upon complying with the provisions Section 7 of this Agreement shall have full right and authority to contest such claimMortgage.
Appears in 1 contract
Samples: Line of Credit Mortgage and Security Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Ground Lease Covenants. For so long as the Indebtedness shall remain outstanding, Borrower hereby covenants, warrants and represents as follows:
(a) Each Loan Party shall (i) pay or cause to be paid on or before the due date thereof all The Ground Lease Payments, (ii) perform is and observe every covenant to shall be performed or observed by a Loan Party under the applicable Ground Lease; (iii) refrain from doing anything maintained in full force and effect. Borrower shall not do suffer or permit any act, event amendments or omission, as a result modifications of which, there is reasonably likely to occur a default or breach under any Ground Lease; (iv) promptly give Administrative Agent notice of any default under any the Ground Lease upon learning of to be made, except for such default and promptly deliver to Administrative Agent a copy of each notice of default and all responses to such notice of default and all other material instruments, notices amendments or demands received or delivered by a Loan Party under or in connection with the applicable Ground Lease; (v) promptly notify Administrative Agent modifications as are permitted in writing in the event of the initiation of any litigation or arbitration proceeding affecting a Loan Party or the Real Property under or in connection with the applicable Ground Lease; (vi) not voluntarily or involuntarily, directly or indirectly, surrender, terminate or cancel any Ground Lease nor, without the prior written consent of Administrative by Agent, fail to exercise in a timely manner any purchase option(s) or renewal option(s) contained in any Ground Lease; and (vii) such permission not modify, alter or amend any Ground Lease, either orally or in writing, in any material respect without the prior written consent of the Administrative Agent. Any assignment, transfer, conveyance, surrender, termination, cancellation, modification, alteration or amendment of any Ground Lease in contravention of the foregoing shall be void and of no force and effectunreasonably withheld.
(b) Each Loan Party acknowledges Borrower shall cause all rent, additional rent and agrees other charges payable under the Ground Lease to be paid when due (subject to (i) any applicable notice and cure periods under the Ground Lease and (ii) appropriate contesting of any such rent or other charges, if any, solely as permitted by the Ground Lease, provided that Agent is provided with adequate security for such contest).
(c) There are, as of the date hereof, and will be, no release or forbearance defenses to Borrower’s enforcement of its rights under the Ground Lease.
(d) As of the date hereof, (i) Borrower is not in default in the performance of any of its obligations under any the Ground Lease Lease, and (ii) there are no circumstances which, alone or otherwise shall release such Loan Party from with the passage of time or the giving of notice or both, would constitute an event of default thereunder.
(e) To Borrower’s knowledge, as of the date hereof, Ground Lessor is not in default in the performance of any of its material obligations under the Loan DocumentsGround Lease.
(f) Borrower will promptly and faithfully, including without limitation in all material respects, observe, perform and comply, or cause the observance, performance of and compliance with, all the material terms, covenants and provisions of the termsGround Lease, provisionson its part to be observed, covenantsperformed and complied with, conditions and agreements contained in any applicable at the times set forth therein, and, upon acquiring knowledge of the same, will enforce the material obligations of Ground Lessor under the Ground Lease, to be kept, performed and complied with by such Loan Party thereinthe end that Borrower may enjoy all of the material rights granted it under the Ground Lease.
(cg) Each Loan Party shall from time to time within ten (10) Business Days of Administrative Without Agent’s request to execute and deliverprior written consent, use reasonable efforts to obtain from the ground lessor, an estoppel certificate in Borrower will not suffer or permit a form reasonably acceptable to Administrative Agent certifying to such matters as Administrative Agent may reasonably require, including without limitation, the following: (a) the name cancellation or termination of the tenant entitled to possession Ground Lease, nor any subletting or assignment of the leasehold estate any of Borrower’s interest under the applicable Ground Lease; (b) that the applicable Ground Lease is in full force (other than the Master Lease and effect and has not been modified orthe subleases permitted thereunder).
(h) Upon obtaining actual knowledge, if it has been modified, the date Borrower will give Agent prompt notice of each such modification (together with copies of each modification); (c) the date to which the fixed (or base) rent has been paid any default by any party under the applicable Ground Lease; (d) the dates to which all other fees or charges have been paid under the applicable Ground Lease; (e) whether any notice of default has been sent to any Loan Party under the applicable Ground Lease which has not been cured, and if such notice has been sent, the date it was sent and the nature of the default; (f) to the best of the ground lessor’s knowledge, whether any Loan Party is in default under such Ground Lease, and if so, promptly deliver to Agent copies of each notice of default sent or received by Borrower under the nature thereof in reasonable detailGround Lease.
(di) In Borrower will furnish to Agent such information and evidence as Agent may reasonably request concerning Borrower’s due observance, performance and compliance with the event that it is claimed by any Governmental Authority that any tax is dueterms, unpaid or payable by a Loan Party upon or in connection with any covenants and provisions of the Ground Lease. If any default by Borrower has occurred under the Ground Lease and Ground Lessor has delivered written notice thereof, Agent shall have the right, but not the obligation, to cure such Loan Party default and all reasonable sums paid to cure any such default shall promptly either (a) pay such tax, charge or imposition when due bear interest at the Default Rate and deliver shall be added to Administrative Agent reasonably satisfactory proof of payment thereof or (b) contest such tax the Indebtedness in accordance with the applicable provisions of Section 7 of this Agreement. If liability for Mortgage.
(j) Fee title to the Land and the leasehold estate conveyed by the Ground Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of said estates in either Ground Lessor, Borrower or a third party, whether by purchase or otherwise and accordingly, if Borrower acquires the fee title or any other estate, title or interest in the Land demised by the Ground Lease, or any part thereof, the lien of this Mortgage shall attach to, cover and be a lien upon such tax is asserted against Administrative Agentacquired estate, Administrative Agent will give to such Loan Party prompt notice title or interest and same shall thereupon be and become a part of such claim, and such Loan Party, upon complying the Property with the provisions same force and effect as if specifically encumbered herein.
(k) Neither Agent nor Lender shall have any liability or obligation under the Ground Lease by reason of its acceptance of this Agreement shall have full right and authority to contest such claimMortgage.
Appears in 1 contract
Samples: Construction and Leasehold Mortgage (Grubb & Ellis Healthcare REIT II, Inc.)
Ground Lease Covenants. (a) Each Loan Party shall Borrower covenants and agrees as follows: (i) pay or cause promptly and faithfully to be paid on or before the due date thereof all Ground Lease Paymentsobserve, (ii) perform and observe every covenant to be performed or observed by a Loan Party under comply in all material respects with all of the applicable terms, covenants and provisions of each Ground Lease; (iiiii) to refrain from doing anything and not do or permit any act, event or omission, as a result of which, there is reasonably likely to occur a default or breach under any Ground Lease; (iviii) to promptly give Administrative Agent Lender notice of any default under any the Ground Lease upon learning of such default and promptly immediately deliver to Administrative Agent Lender a copy of each notice of default and all responses to such notice of default and all other material instruments, notices or demands received or delivered by a Loan Party Borrower under or in connection with the applicable Ground Lease; (viv) to promptly notify Administrative Agent Lender in writing in the event of the initiation of any litigation or arbitration proceeding affecting a Loan Party Borrower or the Real Property under or in connection with the applicable Ground Lease; (v) within ten (10) Business Days of each request by Lender to furnish to Lender an estoppel certificate from Borrower in such form as Lender may reasonably request from time to time concerning Borrower’s due observance, performance and compliance in all material respects with the terms, covenants and provisions of the Ground Lease; (vi) it will not voluntarily or involuntarily, directly or indirectly, assign, transfer or convey the Property or the Leasehold Estate, nor surrender, terminate or cancel any the Ground Lease nor, without the prior written consent of Administrative AgentLender, fail to exercise in a timely manner any purchase option(s) or renewal option(s) contained in any the Ground Lease, if applicable, nor, without the prior written consent of Lender; and (vii) not modify, alter or amend any the Ground Lease, either orally or in writing, in any material respect without the prior written consent of the Administrative Agent. Any assignment, transfer, conveyance, surrender, termination, cancellation, modification, alteration or amendment of any the Ground Lease in contravention of the foregoing shall be void and of no force and effect.
(b) Each Loan Party acknowledges and agrees that no release or forbearance of any of its obligations under any Ground Lease or otherwise shall release such Loan Party from any of its obligations under the Loan Documents, including without limitation the performance of all of the terms, provisions, covenants, conditions and agreements contained in any applicable Ground Lease, to be kept, performed and complied with by such Loan Party therein.
(c) Each Loan Party shall from time to time within ten (10) Business Days of Administrative Agent’s request to execute and deliver, use reasonable efforts to obtain from the ground lessor, an estoppel certificate in a form reasonably acceptable to Administrative Agent certifying to such matters as Administrative Agent may reasonably require, including without limitation, the following: (a) the name of the tenant entitled to possession of the leasehold estate under the applicable Ground Lease; (b) that the applicable Ground Lease is in full force and effect and has not been modified or, if it has been modified, the date of each such modification (together with copies of each modification); (c) the date to which the fixed (or base) rent has been paid under the applicable Ground Lease; (d) the dates to which all other fees or charges have been paid under the applicable Ground Lease; (e) whether any notice of default has been sent to any Loan Party under the applicable Ground Lease which has not been cured, and if such notice has been sent, the date it was sent and the nature of the default; (f) to the best of the ground lessor’s knowledge, whether any Loan Party is in default under such Ground Lease, and if so, the nature thereof in reasonable detail.
(d) In the event that it is claimed by any Governmental Authority that any tax is due, unpaid or payable by a Loan Party upon or in connection with any Ground Lease, such Loan Party shall promptly either (a) pay such tax, charge or imposition when due and deliver to Administrative Agent reasonably satisfactory proof of payment thereof or (b) contest such tax in accordance with the applicable provisions of this Agreement. If liability for such tax is asserted against Administrative Agent, Administrative Agent will give to such Loan Party prompt notice of such claim, and such Loan Party, upon complying with the provisions of this Agreement shall have full right and authority to contest such claim.
Appears in 1 contract
