Ground Lease Default. Notwithstanding anything contained herein, a default by Borrower under a Ground Lease (a “Ground Lease Default”) shall, for all purposes hereunder, constitute a default under the Senior Loan with respect to which Junior Lenders shall have the right to cure in accordance with this Section 15(g) whether or not Senior Lender has cured such Ground Lease Default. In connection with any Ground Lease Default, Senior Lender shall, subject to the limitations and conditions set forth below, comply with each of the following provisions, to the extent applicable: (i) If Senior Lender shall receive any written notice that a Ground Lease Default has occurred and is continuing or that a Ground Lease has been terminated or rejected in a Proceeding, Senior Lender shall promptly notify each Junior Lender in writing of the same and promptly deliver to each Junior Lender a true and complete copy of each such notice. Further, Senior Lender shall provide such documents and information as each Junior Lender shall reasonably request concerning such Ground Lease Default; provided that, in the event such requested documentation and information is not in the actual possession of Senior Lender, Senior Lender shall only be required to use commercially reasonable efforts to obtain such information and the applicable Junior Lender shall pay all reasonable costs and expenses of Senior Lender incurred in connection with obtaining such requested documentation and information. (ii) Senior Lender shall, if requested by a Junior Lender, take all commercially reasonable action, to the extent permitted under the defaulted Ground Lease and not done by Borrower, to (A) cure any Ground Lease Default (to the extent such Ground Lease Default is susceptible of cure by Senior Lender), to keep and maintain such Ground Lease in full force and effect and (B) exercise any option to renew or extend such Ground Lease and give written confirmation thereof to each Junior Lender within thirty (30) days after such option is exercised, provided, that the costs and expenses of Senior Lender to take any such actions under this clause (ii) shall be paid pro rata by the Junior Lenders except to the extent such costs and expenses are otherwise allocated to any party other than the Senior Lender (the trust) in the pooling and servicing agreement for the Securitization of the Senior Loan. (iii) If a Ground Lease terminates or is rejected in a Proceeding and Senior Lender has the right to designate a nominee to assume such Ground Lease or to enter into a New Lease, then Senior Lender shall, subject to applicable law, elect in lieu of rejection to have such Ground Lease assumed, or such New Lease entered into, and assigned to a nominee of Senior Lender except that, if a Junior Lender has delivered written notice to Senior Lender, within ten (10) Business Days of receipt from Senior Lender of notice that such Ground Lease has terminated or been rejected, that such Junior Lender shall cause a nominee of such Junior Lender (the “Mezzanine Nominee”) to assume the obligations of the applicable Individual Borrower under such Ground Lease (the “Mezzanine Lease Notice”), then Senior Lender shall so designate the Mezzanine Nominee if the Assumption Conditions and other conditions precedent set forth below have been met on or prior to the date which is five (5) Business Days prior to the last date upon which Senior Lender is entitled to a New Lease pursuant to the terms of such Ground Lease (to the extent Senior Lender is entitled to a New Lease pursuant to such Ground Lease or any agreement entered into with the related Ground Lessor) or to assume the applicable Individual Borrower’s obligations under such Ground Lease. If a Ground Lease is rejected, Senior Lender shall use commercially reasonable efforts to obtain in connection with the rejection of such Ground Lease a determination that the related Ground Lessor must either, at Senior Lender’s option, (A) agree to terminate such Ground Lease and enter into a New Lease with Senior Lender or a Person designated by Senior Lender, which Person shall be the Mezzanine Nominee (if permitted under such Ground Lease or any agreement delivered by such Ground Lessor, as applicable) if all of the Assumption Conditions and the other conditions precedent set forth below have been met on or prior to the date which is five (5) Business Days prior to the last date upon which Senior Lender is entitled to a New Lease pursuant to the terms of such Ground Lease or (B) treat such Ground Lease as breached, in which event such Junior Lender or Mezzanine Nominee (designated as Senior Lender’s nominee) will have the non-exclusive right to cure defaults under such Ground Lease. If a Ground Lease is terminated for any other reason and Senior Lender has the right to a New Lease, Senior Lender shall exercise its rights to a New Lease and shall, provided the Assumption Conditions and the other conditions precedent set forth below are met on or prior to the date which is five (5) Business Days prior to the last day upon which Senior Lender is entitled to a New Lease -77- pursuant to the terms of such Ground Lease, designate a Mezzanine Nominee as the party to enter into such New Lease (if permitted under such Ground Lease or any agreement delivered by the related Ground Lessor, as applicable). (iv) Notwithstanding anything to the contrary herein, (A) Mezzanine Nominee shall not be required to cure (and any Supplemental Third Party Obligors delivering supplemental Third Party Agreements in satisfaction of the Assumption Conditions shall have no liability for) non-monetary defaults under the Senior Loan or any Senior Junior Loan, as applicable, which exist at the time of such assumption which are not susceptible of cure and which do not materially impair, in the case of the Senior Loan, the value, use or operation of the Premises or Senior Lender’s lien thereon (as determined by Senior Lender in its reasonable discretion) or in the case of a Senior Junior Loan, the value of the Separate Collateral under such Senior Junior Loan or the related Senior Junior Lender’s security interest therein, and (B) Mezzanine Nominee shall be afforded the same cure periods as are afforded the applicable Junior Lenders pursuant to this Agreement. (v) Any actions undertaken by Senior Lender at the request of a Junior Lender pursuant to the provisions of this Section 15(g) shall be at the sole cost and expense of such Junior Lender. (vi) In the event the Ground Lessor under a defaulted Ground Lease refuses to enter into a New Lease with, or permit an assignment of such Ground Lease as contemplated herein to, Mezzanine Nominee, Senior Lender will enter into the New Lease (or take an assignment of such Ground Lease, as the case may be) and assign it to Mezzanine Nominee to the extent that such assignment of such Ground Lease is permitted under such Ground Lease or any agreement entered into with such Ground Lessor, provided, that, (A) in connection with such assignment all of the applicable provisions of this Section 15(g) have been satisfied, including, without limitation, satisfaction of the Assumption Conditions and payment of all of Senior Lender’s costs and expenses incurred in connection with obtaining and assigning such Ground Lease or New Lease, as the case may be, and (B) Senior Lender will not be subject to any liability under the Ground Lease or New Lease, as the case may be, once the assignment to the Mezzanine Nominee is effectuated. (vii) If a Ground Lessor shall reject the related Ground Lease under or pursuant to Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, Senior Lender shall use commercially reasonable efforts to not permit Borrower to elect to treat such Ground Lease as terminated and shall use commercially reasonable efforts to require such Individual Borrower to elect to remain in possession of the Premises demised under such Ground Lease and the leasehold estate under such Ground Lease. (viii) Senior Lender shall not consent to any party modifying or amending any material or economic terms of, or terminating or surrendering, any Ground Lease, in each case without the prior written consent of each Junior Lender. (ix) Notwithstanding anything to the contrary contained in this Agreement, (A) in the event that a Junior Lender requests that Senior Lender take or refrain from taking any action pursuant to this Section 15(g) and Senior Lender complies with such request, such Junior Lender shall protect, indemnify and save harmless each Indemnified Person from and against any claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature (“Claims”), other than consequential, special, punitive, indirect or other similar damages, whether incurred or imposed within or outside the judicial process, including, without limitation, reasonable attorneys’ fees and disbursements imposed upon or incurred by or asserted against any Indemnified Person by reason of such requested actions or inactions unless such Claims are a result of the fraud, gross negligence or willful misconduct of an Indemnified Person, and (B) Senior Lender shall have no obligation to take or refrain from taking any action pursuant to this Section 15(g), (1) unless and until such Junior Lender has cured (or, in the case of a non-monetary Event of Default, has commenced and is diligently pursuing the cure of) all monetary Events of Default under the Senior Loan Documents and all non-monetary Events of Default under the Senior Loan Documents (other than those which are not susceptible of cure by Junior Lender and which do not, in Senior Lender’s reasonable judgment, materially impair the value, use or operation of the Premises, and other than any Event of Default relating solely to the Ground Lease at issue) prior to the lapse of any cure periods set forth under Section 12(b) and 12(c), as applicable, or (2) if compliance with the provisions of this Section 15(g) would (x) violate the Senior Loan Documents or any law, rule or regulation applicable to Senior Lender, (y) in the event that the Senior Loan or any interest therein is included in an asset of a “grantor trust” within the meaning of Subpart E, Part I of Subchapter J of the Code, causes the grantor trust to fail to qualify as a “fixed investment trust” within the meaning of Treasury Regulations Section 301.7701-4(c), or (z) in the event that the Senior Loan or any interest therein is included as an asset of a real estate mortgage investment conduit (“REMIC”) within the meaning of Section 860D(a) of the Code, cause the Senior Loan (or portion thereof which is included in a REMIC) to fail to qualify at all times as a qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, or, subsequent to a foreclosure or delivery of a Deed in Lieu, fail to qualify the Premises, as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code. (x) In addition, notwithstanding anything to the contrary contained herein, (A) if Senior Lender determines that any other action in connection with a Ground Lease Default is necessary to preserve the related Ground Lease or to protect or preserve the lien of the applicable Mortgage, Senior Lender may take any such action; provided, in either event, that Senior Lender shall have no right to enter into a New Lease or to assume the applicable Individual Borrower’s obligations under the Ground Lease (1) unless no Junior Lender has timely exercised its respective rights in accordance with the provisions of Section 15(g), which provisions shall control, or each Junior Lender’s rights to cause Mezzanine Nominee to enter into a New Lease or assume the applicable Individual Borrower’s obligations under such Ground Lease pursuant to Section 15(g) have expired in accordance with the express provisions of Section 15(g), and (B) Senior Lender or any servicer on its behalf shall not be obligated to expend or advance any of its own funds if such Person determines that such expenditure or advance would constitute a non-recoverable advance under the terms of any servicing agreement governing the administration of the Senior Loan (it being agreed that in the event a Junior Lender delivers to Senior Lender sums sufficient to cure any monetary default under the Ground Lease, the expenditure of such sums shall not be deemed a non-recoverable expenditure). (xi) Any sums due to Senior Lender from a Junior Lender under this Section 15(g) shall be paid within ten (10) Business Days of demand by Senior Lender. Failure to pay any such sums within five (5) Business Days of Senior Lender’s written notification to such Junior Lender that such Junior Lender failed to comply with the requirements of the immediately preceding sentence will constitute a waiver by such Junior Lender of any rights it may have under this Section 15(g) until such amounts are paid in full. (xii) Notwithstanding anything to the contrary contained herein, if Senior Lender or one or more Junior Lenders elect to exercise any rights granted to a Junior Lender under this Section 15(g), Senior Lender and Senior Junior Lender acknowledge and agree that, as between Senior Lender and each Junior Lender, Subordinate Junior Lender shall have the superior right to exercise such rights; provided, however, that with respect to the rights granted Junior Lender pursuant to clause (iii) above, Subordinate Junior Lender satisfies the Assumption Conditions. (xiii) Nothing contained herein shall be deemed to grant any Junior Lender the right to cure a Ground Lease Default or obtain a New Lease beyond the period for cure or obtaining a New Lease afforded to the Senior Lender or a Junior Lender under the applicable Ground Lease (or any agreement entered into with the related Ground Lessor).
Appears in 1 contract
Samples: Intercreditor Agreement
Ground Lease Default. Notwithstanding anything contained herein, a default by Borrower under a Ground Lease (a “Ground Lease Default”) shall, for all purposes hereunder, constitute a default under the Senior Loan with respect to which Junior Lenders shall have the right to cure in accordance with this Section 15(g) whether or not Senior Lender has cured such Ground Lease Default. In connection with any Ground Lease Default, Senior Lender shall, subject to the limitations and conditions set forth below, comply with each of the following provisions, to the extent applicable:
(i) If Senior Lender shall receive any written notice that a Ground Lease Default has occurred and is continuing or that a Ground Lease has been terminated or rejected in a Proceeding, Senior Lender shall promptly notify each Junior Lender in writing of the same and promptly deliver to each Junior Lender a true and complete copy of each such notice. Further, Senior Lender shall provide such documents and information as each Junior Lender shall reasonably request concerning such Ground Lease Default; provided that, in the event such requested documentation and information is not in the actual possession of Senior Lender, Senior Lender shall only be required to use commercially reasonable efforts to obtain such information and the applicable Junior Lender shall pay all reasonable costs and expenses of Senior Lender incurred in connection with obtaining such requested documentation and information.
(ii) Senior Lender shall, if requested by a Junior Lender, take all commercially reasonable action, to the extent permitted under the defaulted Ground Lease and not done by Borrower, to (A) cure any Ground Lease Default (to the extent such Ground Lease Default is susceptible of cure by Senior Lender), to keep and maintain such Ground Lease in full force and effect and (B) exercise any option to renew or extend such Ground Lease and give written confirmation thereof to each Junior Lender within thirty (30) days after such option is exercised, provided, that the costs and expenses of Senior Lender to take any such actions under this clause (ii) shall be paid pro rata by the Junior Lenders except to the extent such costs and expenses are otherwise allocated to any party other than the Senior Lender (the trust) in the pooling and servicing agreement for the Securitization of the Senior Loan.
(iii) If a Ground Lease terminates or is rejected in a Proceeding and Senior Lender has the right to designate a nominee to assume such Ground Lease or to enter into a New Lease, then Senior Lender shall, subject to applicable law, elect in lieu of rejection to have such Ground Lease assumed, or such New Lease entered into, and assigned to a nominee of Senior Lender except that, if a Junior Lender has delivered written notice to Senior Lender, within ten (10) Business Days of receipt from Senior Lender of notice that such Ground Lease has terminated or been rejected, that such Junior Lender shall cause a nominee of such Junior Lender (the “Mezzanine Nominee”) to assume the obligations of the applicable Individual Borrower under such Ground Lease (the “Mezzanine Lease Notice”), then Senior Lender shall so designate the Mezzanine Nominee if the Assumption Conditions and other conditions precedent set forth below have been met on or prior to the date which is five (5) Business Days prior to the last date upon which Senior Lender is entitled to a New Lease pursuant to the terms of such Ground Lease (to the extent Senior Lender is entitled to a New Lease pursuant to such Ground Lease or any agreement entered into with the related Ground Lessor) or to assume the applicable Individual Borrower’s obligations under such Ground Lease. If a Ground Lease is rejected, Senior Lender shall use commercially reasonable efforts to obtain in connection with the rejection of such Ground Lease a determination that the related Ground Lessor must either, at Senior Lender’s option, (A) agree to terminate such Ground Lease and enter into a New Lease with Senior Lender or a Person designated by Senior Lender, which Person shall be the Mezzanine Nominee (if permitted under such Ground Lease or any agreement delivered by such Ground Lessor, as applicable) if all of the Assumption Conditions and the other conditions precedent set forth below have been met on or prior to the date which is five (5) Business Days prior to the last date upon which Senior Lender is entitled to a New Lease pursuant to the terms of such Ground Lease or (B) treat such Ground Lease as breached, in which event such Junior Lender or Mezzanine Nominee (designated as Senior Lender’s nominee) will have the non-exclusive right to cure defaults under such Ground Lease. If a Ground Lease is terminated for any other reason and Senior Lender has the right to a New Lease, Senior Lender shall exercise its rights to a New Lease and shall, provided the Assumption Conditions and the other conditions precedent set forth below are met on or prior to the date which is five (5) Business Days prior to the last day upon which Senior Lender is entitled to a New Lease -77- pursuant to the terms of such Ground Lease, designate a Mezzanine Nominee as the party to enter into such New Lease (if permitted under such Ground Lease or any agreement delivered by the related Ground Lessor, as applicable).
(iv) Notwithstanding anything to the contrary herein, (A) Mezzanine Nominee shall not be required to cure (and any Supplemental Third Party Obligors delivering supplemental Third Party Agreements in satisfaction of the Assumption Conditions shall have no liability for) non-monetary defaults under the Senior Loan or any Senior Junior Loan, as applicable, which exist at the time of such assumption which are not susceptible of cure and which do not materially impair, in the case of the Senior Loan, the value, use or operation of the Premises or Senior Lender’s lien thereon (as determined by Senior Lender in its reasonable discretion) or in the case of a Senior Junior Loan, the value of the Separate Collateral under such Senior Junior Loan or the related Senior Junior Lender’s security interest therein, and (B) Mezzanine Nominee shall be afforded the same cure periods as are afforded the applicable Junior Lenders pursuant to this Agreement.
(v) Any actions undertaken by Senior Lender at the request of a Junior Lender pursuant to the provisions of this Section 15(g) shall be at the sole cost and expense of such Junior Lender.
(vi) In the event the Ground Lessor under a defaulted Ground Lease refuses to enter into a New Lease with, or permit an assignment of such Ground Lease as contemplated herein to, Mezzanine Nominee, Senior Lender will enter into the New Lease (or take an assignment of such Ground Lease, as the case may be) and assign it to Mezzanine Nominee to the extent that such assignment of such Ground Lease is permitted under such Ground Lease or any agreement entered into with such Ground Lessor, provided, that, (A) in connection with such assignment all of the applicable provisions of this Section 15(g) have been satisfied, including, without limitation, satisfaction of the Assumption Conditions and payment of all of Senior Lender’s costs and expenses incurred in connection with obtaining and assigning such Ground Lease or New Lease, as the case may be, and (B) Senior Lender will not be subject to any liability under the Ground Lease or New Lease, as the case may be, once the assignment to the Mezzanine Nominee is effectuated.
(vii) If a Ground Lessor shall reject the related Ground Lease under or pursuant to Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, Senior Lender shall use commercially reasonable efforts to not permit Borrower to elect to treat such Ground Lease as terminated and shall use commercially reasonable efforts to require such Individual Borrower to elect to remain in possession of the Premises demised under such Ground Lease and the leasehold estate under such Ground Lease.
(viii) Senior Lender shall not consent to any party modifying or amending any material or economic terms of, or terminating or surrendering, any Ground Lease, in each case without the prior written consent of each Junior Lender.
(ix) Notwithstanding anything to the contrary contained in this Agreement, (A) in the event that a Junior Lender requests that Senior Lender take or refrain from taking any action pursuant to this Section 15(g) and Senior Lender complies with such request, such Junior Lender shall protect, indemnify and save harmless each Indemnified Person from and against any claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature (“Claims”), other than consequential, special, punitive, indirect or other similar damages, whether incurred or imposed within or outside the judicial process, including, without limitation, reasonable attorneys’ fees and disbursements imposed upon or incurred by or asserted against any Indemnified Person by reason of such requested actions or inactions unless such Claims are a result of the fraud, gross negligence or willful misconduct of an Indemnified Person, and (B) Senior Lender shall have no obligation to take or refrain from taking any action pursuant to this Section 15(g), (1) unless and until such Junior Lender has cured (or, in the case of a non-monetary Event of Default, has commenced and is diligently pursuing the cure of) all monetary Events of Default under the Senior Loan Documents and all non-monetary Events of Default under the Senior Loan Documents (other than those which are not susceptible of cure by Junior Lender and which do not, in Senior Lender’s reasonable judgment, materially impair the value, use or operation of the Premises, and other than any Event of Default relating solely to the Ground Lease at issue) prior to the lapse of any cure periods set forth under Section 12(b) and 12(c), as applicable, or (2) if compliance with the provisions of this Section 15(g) would (x) violate the Senior Loan Documents or any law, rule or regulation applicable to Senior Lender, (y) in the event that the Senior Loan or any interest therein is included in an asset of a “grantor trust” within the meaning of Subpart E, Part I of Subchapter J of the Code, causes the grantor trust to fail to qualify as a “fixed investment trust” within the meaning of Treasury Regulations Section 301.7701-4(c), or (z) in the event that the Senior Loan or any interest therein is included as an asset of a real estate mortgage investment conduit (“REMIC”) within the meaning of Section 860D(a) of the Code, cause the Senior Loan (or portion thereof which is included in a REMIC) to fail to qualify at all times as a qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, or, subsequent to a foreclosure or delivery of a Deed in Lieu, fail to qualify the Premises, as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code.
(x) In addition, notwithstanding anything to the contrary contained herein, (A) if Senior Lender determines that any other action in connection with a Ground Lease Default is necessary to preserve the related Ground Lease or to protect or preserve the lien of the applicable Mortgage, Senior Lender may take any such action; provided, in either event, that Senior Lender shall have no right to enter into a New Lease or to assume the applicable Individual Borrower’s obligations under the Ground Lease (1) unless no Junior Lender has timely exercised its respective rights in accordance with the provisions of Section 15(g), which provisions shall control, or each Junior Lender’s rights to cause Mezzanine Nominee to enter into a New Lease or assume the applicable Individual Borrower’s obligations under such Ground Lease pursuant to Section 15(g) have expired in accordance with the express provisions of Section 15(g), and (B) Senior Lender or any servicer on its behalf shall not be obligated to expend or advance any of its own funds if such Person determines that such expenditure or advance would constitute a non-recoverable advance under the terms of any servicing agreement governing the administration of the Senior Loan (it being agreed that in the event a Junior Lender delivers to Senior Lender sums sufficient to cure any monetary default under the Ground Lease, the expenditure of such sums shall not be deemed a non-recoverable expenditure).
(xi) Any sums due to Senior Lender from a Junior Lender under this Section 15(g) shall be paid within ten (10) Business Days of demand by Senior Lender. Failure to pay any such sums within five (5) Business Days of Senior Lender’s written notification to such Junior Lender that such Junior Lender failed to comply with the requirements of the immediately preceding sentence will constitute a waiver by such Junior Lender of any rights it may have under this Section 15(g) until such amounts are paid in full.
(xii) Notwithstanding anything to the contrary contained herein, if Senior Lender or one or more Junior Lenders elect to exercise any rights granted to a Junior Lender under this Section 15(g), Senior Lender and Senior Junior Lender acknowledge and agree that, as between Senior Lender and each Junior Lender, Subordinate Junior Lender shall have the superior right to exercise such rights; provided, however, that with respect to the rights granted Junior Lender pursuant to clause (iii) above, Subordinate Junior Lender satisfies the Assumption Conditions.
(xiii) Nothing contained herein shall be deemed to grant any Junior Lender the right to cure a Ground Lease Default or obtain a New Lease beyond the period for cure or obtaining a New Lease afforded to the Senior Lender or a Junior Lender under the applicable Ground Lease (or any agreement entered into with the related Ground Lessor).
Appears in 1 contract
Ground Lease Default. Notwithstanding anything contained hereinherein to the contrary, a default by Borrower under a Ground Lease Default (a “Ground Lease Default”defined below) shall, for all purposes hereunder, constitute a default under the Senior Loan with respect to which Junior Lenders shall have the right to cure in accordance with this Section 15(g15(r) whether or not Senior Lender has cured such Ground Lease Default. In connection with any default by the applicable Senior Borrower under a Ground Lease (a “Ground Lease Default”), Senior Lender shall, subject to the limitations and conditions set forth below, comply with each of the following provisions, to the extent applicable:
(i) If Senior Lender shall receive any written notice that a Ground Lease Default has occurred and is continuing or that a Ground Lease has been terminated or rejected in a Proceedingcontinuing, Senior Lender shall promptly notify each Junior Lender in writing of the same and promptly deliver to each Junior Lender a true and complete copy of each such notice. Further, Senior Lender shall provide such documents and information as each Junior Lender shall reasonably request concerning such the Ground Lease Default; provided that, in the event such requested documentation and information is not in the actual possession of Senior Lender, Senior Lender shall only be required to use commercially reasonable efforts to obtain such information and the applicable Junior Lender shall pay all reasonable costs and expenses of Senior Lender incurred in connection with obtaining such requested documentation and information.
(ii) Senior Lender shall, if requested by a Junior Lender, take all commercially reasonable action, to the extent permitted under the defaulted Ground Lease and not done performed by Senior Borrower, to (A) cure any Ground Lease Default (to the extent such Ground Lease Default is susceptible of cure by Senior Lender), to keep and maintain such Ground Lease in full force and effect and (B) exercise any option to renew or extend such the Ground Lease and give written confirmation thereof to each Junior Lender within thirty (30) days after such option is exercised, provided, ; provided that the costs and expenses of incurred by Senior Lender to take in taking any such actions under this clause (ii) shall be paid pro rata by the Junior Lenders Lenders, except to the extent such costs and expenses are otherwise allocated to any party other than the Senior Lender (the trust) in pursuant to the pooling and servicing agreement for the Securitization of the Senior Loan.
(iii) If a Ground Lease terminates or is rejected in a Proceeding and Senior Lender has the right to designate a nominee to assume such Ground Lease or to enter into a New Lease, then Senior Lender shall, subject to applicable law, elect in lieu of rejection to have such Ground Lease assumed, or such New Lease entered into, and assigned to a nominee of Senior Lender except that, if a Junior Lender has delivered written notice to Senior Lender, within ten (10) Business Days of receipt from Senior Lender of notice that such Ground Lease has terminated or been rejected, that such Junior Lender shall cause a nominee of such Junior Lender (the “Mezzanine Nominee”) to assume the obligations of the applicable Individual Borrower under such Ground Lease (the “Mezzanine Lease Notice”), then Senior Lender shall so designate the Mezzanine Nominee if the Assumption Conditions and other conditions precedent set forth below have been met on or prior to the date which is five (5) Business Days prior to the last date upon which Senior Lender is entitled to a New Lease pursuant to the terms of such Ground Lease (to the extent Senior Lender is entitled to a New Lease pursuant to such Ground Lease or any agreement entered into with the related Ground Lessor) or to assume the applicable Individual Borrower’s obligations under such Ground Lease. If a Ground Lease is rejected, Senior Lender shall use commercially reasonable efforts to obtain in connection with the rejection of such Ground Lease a determination that the related Ground Lessor must either, at Senior Lender’s option, (A) agree to terminate such Ground Lease and enter into a New Lease with Senior Lender or a Person designated by Senior Lender, which Person shall be the Mezzanine Nominee (if permitted under such Ground Lease or any agreement delivered by such Ground Lessor, as applicable) if all of the Assumption Conditions and the other conditions precedent set forth below have been met on or prior to the date which is five (5) Business Days prior to the last date upon which Senior Lender is entitled to a New Lease pursuant to the terms of such Ground Lease or (B) treat such Ground Lease as breached, in which event such Junior Lender or Mezzanine Nominee (designated as Senior Lender’s nominee) will have the non-exclusive right to cure defaults under such Ground Lease. If a Ground Lease is terminated for any other reason and Senior Lender has the right to a New Lease, Senior Lender shall exercise its rights to a New Lease and shall, provided the Assumption Conditions and the other conditions precedent set forth below are met on or prior to the date which is five (5) Business Days prior to the last day upon which Senior Lender is entitled to a New Lease -77- pursuant to the terms of such Ground Lease, designate a Mezzanine Nominee as the party to enter into such New Lease (if permitted under such Ground Lease or any agreement delivered by the related Ground Lessor, as applicable).
(iv) Notwithstanding anything to the contrary herein, (A) Mezzanine Nominee shall not be required to cure (and any Supplemental Third Party Obligors delivering supplemental Third Party Agreements in satisfaction of the Assumption Conditions shall have no liability for) non-monetary defaults under the Senior Loan or any Senior Junior Loan, as applicable, which exist at the time of such assumption which are not susceptible of cure and which do not materially impair, in the case of the Senior Loan, the value, use or operation of the Premises or Senior Lender’s lien thereon (as determined by Senior Lender in its reasonable discretion) or in the case of a Senior Junior Loan, the value of the Separate Collateral under such Senior Junior Loan or the related Senior Junior Lender’s security interest therein, and (B) Mezzanine Nominee shall be afforded the same cure periods as are afforded the applicable Junior Lenders pursuant to this Agreement.
(v) Any actions undertaken by Senior Lender at the request of a Junior Lender pursuant to the provisions of this Section 15(g) shall be at the sole cost and expense of such Junior Lender.
(vi) In the event the Ground Lessor under a defaulted Ground Lease refuses to enter into a New Lease with, or permit an assignment of such Ground Lease as contemplated herein to, Mezzanine Nominee, Senior Lender will enter into the New Lease (or take an assignment of such Ground Lease, as the case may be) and assign it to Mezzanine Nominee to the extent that such assignment of such Ground Lease is permitted under such Ground Lease or any agreement entered into with such Ground Lessor, provided, that, (A) in connection with such assignment all of the applicable provisions of this Section 15(g) have been satisfied, including, without limitation, satisfaction of the Assumption Conditions and payment of all of Senior Lender’s costs and expenses incurred in connection with obtaining and assigning such Ground Lease or New Lease, as the case may be, and (B) Senior Lender will not be subject to any liability under the Ground Lease or New Lease, as the case may be, once the assignment to the Mezzanine Nominee is effectuated.
(vii) If a Ground Lessor ground lessor shall reject the related Ground Lease under or pursuant to Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Section 365 of the Bankruptcy Code, Senior Lender shall use commercially reasonable efforts to not permit the Senior Borrower to elect to treat such the Ground Lease as terminated terminated, and shall use commercially reasonable efforts to require such Individual the Senior Borrower to elect to remain in possession of the Premises demised under such the Ground Lease and the leasehold estate under such the Ground Lease.
(viiiiv) In the event that the Senior Lender shall not consent assumes a Ground Lease or becomes entitled to any party modifying or amending any material or economic terms ofa New Lease from the ground lessor prior to Senior Borrower rejecting such Ground Lease in a Proceeding, or terminating or surrendering, any Ground LeaseSenior Lender hereby agrees that, in each case without the prior written consent event that a Junior Lender forecloses or otherwise realizes upon its Equity Collateral in accordance with the terms of each Junior Lenderthis Agreement, including, but not limited to, the terms and provisions of Section 6 hereof, and thereby gains title to such Equity Collateral, Senior Lender hereby agrees that, promptly after the completion of such foreclosure or other action to transfer title to such Equity Collateral, it will assign the assumed Ground Lease or New Lease to the Senior Borrower.
(ixv) Notwithstanding anything to the contrary contained in this Agreement, (A) in the event that a Junior Lender requests that Senior Lender take or refrain from taking any action pursuant to this Section 15(g15(r) and Senior Lender complies with such request, such Junior Lender shall protect, indemnify and save harmless each the Indemnified Person Parties from and against any claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature (“Claims”)nature, other than consequentialknown or unknown, special, punitive, indirect contingent or other similar damagesotherwise, whether incurred or imposed within or outside the judicial process, including, without limitation, reasonable attorneys’ fees and disbursements imposed upon or incurred by or asserted against any of the Indemnified Person Parties by reason of such requested actions or inactions unless such Claims are a result of the fraud, gross negligence or willful misconduct of an Indemnified Person, and (B) Senior Lender shall have no obligation to take or refrain from taking any action pursuant to this Section 15(g), 15(r) (1) unless and until such Junior Lender has cured (or, in the case of a non-monetary Event of Default, has commenced and is diligently pursuing the cure of) all monetary Events of Default under the Senior Loan Documents and all non-monetary Events of Default under the Senior Loan Documents (other than those which are not susceptible of cure by Junior Lender and which do not, in Senior Lender’s reasonable judgment, not materially impair the value, use or operation of the Premises, and other than any Event of Default relating solely to the Ground Lease at issue) prior to the lapse of any cure periods set forth under Section 12(b12(a)(ii) and 12(c), as applicable, or (2) if compliance with the provisions of this Section 15(g15(r) would (x1) violate the Senior Loan Documents or any law, rule or regulation applicable to Senior Lender, (y) in the event that the Senior Loan or any interest therein is included in an asset of a “grantor trust” within the meaning of Subpart E, Part I of Subchapter J of the Code, causes the grantor trust to fail to qualify as a “fixed investment trust” within the meaning of Treasury Regulations Section 301.7701-4(c), or (z2) in the event that the Senior Loan or any interest therein is included as an asset of a real estate mortgage investment conduit (“REMIC”) within the meaning of Section 860D(a) of the Code, cause the Senior Loan (or portion thereof which is included in a REMIC) to fail to qualify at all times as a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, or, subsequent to a foreclosure or delivery of a Deed deed in Lieulieu thereof, fail to qualify the Premises, as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code.
(x) . In addition, notwithstanding anything to the contrary contained herein, (A) if Senior Lender determines determines, in accordance with Accepted Servicing Practices, that any other action in connection with a Ground Lease Default is necessary to preserve the related Ground Lease or to protect or preserve the lien of the applicable Mortgage, Senior Lender may take any such action; provided, in either event, that Senior Lender shall have no right to enter into a New Lease or to assume the applicable Individual Borrower’s obligations under the Ground Lease (1) unless no Junior Lender has timely exercised its respective rights in accordance with the provisions of Section 15(g), which provisions shall control, or each Junior Lender’s rights to cause Mezzanine Nominee to enter into a New Lease or assume the applicable Individual Borrower’s obligations under such Ground Lease pursuant to Section 15(g) have expired in accordance with the express provisions of Section 15(g), and (B) Senior Lender or any servicer on its behalf shall not be obligated to expend or advance any of its own funds if such Person determines that such expenditure or advance would constitute a non-recoverable advance under the terms of any servicing agreement governing the administration of the Senior Loan (it being agreed that in the event a Junior Lender delivers to Senior Lender sums sufficient to cure any monetary default under the Ground Lease, the expenditure of such sums shall not be deemed a non-recoverable expenditure).
(xivi) Any sums due to Senior Lender from a Junior Lender under this Section 15(g15(r) or reasonably requested by Senior Lender in anticipation of incurring any expenses required to be paid by such Junior Lender pursuant to this Section 15(r), shall be paid within ten (10) Business Days of demand by Senior Lender. Failure to pay any such sums within five (5) Business Days of Senior Lender’s written notification to such Junior Lender that such Junior Lender failed to comply with the requirements of the immediately preceding sentence will constitute a waiver by such Junior Lender of any rights it may have under this Section 15(g) until such amounts are paid in full15(r).
(xiivii) Notwithstanding anything to the contrary contained herein, if Senior Lender or and/or one or more Junior Lenders elect to exercise any rights granted to a Junior Lender under this Section 15(g15(r), Senior Lender and each Senior Junior Lender acknowledge and agree that, as between Senior Lender and each Junior Lender, the most junior Subordinate Junior Lender shall have the superior right to exercise such rights; provided, however, that with respect to the rights granted Junior Lender pursuant to clause (iii) above, Subordinate Junior Lender satisfies the Assumption Conditions.
(xiiiviii) Nothing contained herein shall be deemed to grant any Junior Lender the right to cure a Ground Lease Default or obtain a New Lease beyond the period for cure or obtaining a New Lease afforded to the Senior Lender or a Junior Lender under the applicable Ground Lease (or any agreement entered into with the related Ground Lessorground lessor thereunder).
Appears in 1 contract
Samples: Intercreditor Agreement (Hcp, Inc.)
Ground Lease Default. Notwithstanding anything contained hereinherein to the contrary, a default by Borrower under a Ground Lease Default (a “Ground Lease Default”defined below) shall, for all purposes hereunder, constitute a default under the Senior Loan with respect to which Junior Lenders shall have the right to cure in accordance with this Section 15(g15(r) whether or not Senior Lender has cured such Ground Lease Default. In connection with any default by the applicable Senior Borrower under a Ground Lease (a "Ground Lease Default"), Senior Lender shall, subject to the limitations and conditions set forth below, comply with each of the following provisions, to the extent applicable:
(i) If Senior Lender shall receive any written notice that a Ground Lease Default has occurred and is continuing or that a Ground Lease has been terminated or rejected in a Proceedingcontinuing, Senior Lender shall promptly notify each Junior Lender in writing of the same and promptly deliver to each Junior Lender a true and complete copy of each such notice. Further, Senior Lender shall provide such documents and information as each Junior Lender shall reasonably request concerning such the Ground Lease Default; provided that, in the event such requested documentation and information is not in the actual possession of Senior Lender, Senior Lender shall only be required to use commercially reasonable efforts to obtain such information and the applicable Junior Lender shall pay all reasonable costs and expenses of Senior Lender incurred in connection with obtaining such requested documentation and information.
(ii) Senior Lender shall, if requested by a Junior Lender, take all commercially reasonable action, to the extent permitted under the defaulted Ground Lease and not done performed by Senior Borrower, to (A) cure any Ground Lease Default (to the extent such Ground Lease Default is susceptible of cure by Senior Lender), to keep and maintain such Ground Lease in full force and effect and (B) exercise any option to renew or extend such the Ground Lease and give written confirmation thereof to each Junior Lender within thirty (30) days after such option is exercised, provided, ; provided that the costs and expenses of incurred by Senior Lender to take in taking any such actions under this clause (ii) shall be paid pro rata by the Junior Lenders Lenders, except to the extent such costs and expenses are otherwise allocated to any party other than the Senior Lender (the trust) in pursuant to the pooling and servicing agreement for the Securitization of the Senior Loan.
(iii) If a Ground Lease terminates or is rejected in a Proceeding and Senior Lender has the right to designate a nominee to assume such Ground Lease or to enter into a New Lease, then Senior Lender shall, subject to applicable law, elect in lieu of rejection to have such Ground Lease assumed, or such New Lease entered into, and assigned to a nominee of Senior Lender except that, if a Junior Lender has delivered written notice to Senior Lender, within ten (10) Business Days of receipt from Senior Lender of notice that such Ground Lease has terminated or been rejected, that such Junior Lender shall cause a nominee of such Junior Lender (the “Mezzanine Nominee”) to assume the obligations of the applicable Individual Borrower under such Ground Lease (the “Mezzanine Lease Notice”), then Senior Lender shall so designate the Mezzanine Nominee if the Assumption Conditions and other conditions precedent set forth below have been met on or prior to the date which is five (5) Business Days prior to the last date upon which Senior Lender is entitled to a New Lease pursuant to the terms of such Ground Lease (to the extent Senior Lender is entitled to a New Lease pursuant to such Ground Lease or any agreement entered into with the related Ground Lessor) or to assume the applicable Individual Borrower’s obligations under such Ground Lease. If a Ground Lease is rejected, Senior Lender shall use commercially reasonable efforts to obtain in connection with the rejection of such Ground Lease a determination that the related Ground Lessor must either, at Senior Lender’s option, (A) agree to terminate such Ground Lease and enter into a New Lease with Senior Lender or a Person designated by Senior Lender, which Person shall be the Mezzanine Nominee (if permitted under such Ground Lease or any agreement delivered by such Ground Lessor, as applicable) if all of the Assumption Conditions and the other conditions precedent set forth below have been met on or prior to the date which is five (5) Business Days prior to the last date upon which Senior Lender is entitled to a New Lease pursuant to the terms of such Ground Lease or (B) treat such Ground Lease as breached, in which event such Junior Lender or Mezzanine Nominee (designated as Senior Lender’s nominee) will have the non-exclusive right to cure defaults under such Ground Lease. If a Ground Lease is terminated for any other reason and Senior Lender has the right to a New Lease, Senior Lender shall exercise its rights to a New Lease and shall, provided the Assumption Conditions and the other conditions precedent set forth below are met on or prior to the date which is five (5) Business Days prior to the last day upon which Senior Lender is entitled to a New Lease -77- pursuant to the terms of such Ground Lease, designate a Mezzanine Nominee as the party to enter into such New Lease (if permitted under such Ground Lease or any agreement delivered by the related Ground Lessor, as applicable).
(iv) Notwithstanding anything to the contrary herein, (A) Mezzanine Nominee shall not be required to cure (and any Supplemental Third Party Obligors delivering supplemental Third Party Agreements in satisfaction of the Assumption Conditions shall have no liability for) non-monetary defaults under the Senior Loan or any Senior Junior Loan, as applicable, which exist at the time of such assumption which are not susceptible of cure and which do not materially impair, in the case of the Senior Loan, the value, use or operation of the Premises or Senior Lender’s lien thereon (as determined by Senior Lender in its reasonable discretion) or in the case of a Senior Junior Loan, the value of the Separate Collateral under such Senior Junior Loan or the related Senior Junior Lender’s security interest therein, and (B) Mezzanine Nominee shall be afforded the same cure periods as are afforded the applicable Junior Lenders pursuant to this Agreement.
(v) Any actions undertaken by Senior Lender at the request of a Junior Lender pursuant to the provisions of this Section 15(g) shall be at the sole cost and expense of such Junior Lender.
(vi) In the event the Ground Lessor under a defaulted Ground Lease refuses to enter into a New Lease with, or permit an assignment of such Ground Lease as contemplated herein to, Mezzanine Nominee, Senior Lender will enter into the New Lease (or take an assignment of such Ground Lease, as the case may be) and assign it to Mezzanine Nominee to the extent that such assignment of such Ground Lease is permitted under such Ground Lease or any agreement entered into with such Ground Lessor, provided, that, (A) in connection with such assignment all of the applicable provisions of this Section 15(g) have been satisfied, including, without limitation, satisfaction of the Assumption Conditions and payment of all of Senior Lender’s costs and expenses incurred in connection with obtaining and assigning such Ground Lease or New Lease, as the case may be, and (B) Senior Lender will not be subject to any liability under the Ground Lease or New Lease, as the case may be, once the assignment to the Mezzanine Nominee is effectuated.
(vii) If a Ground Lessor ground lessor shall reject the related Ground Lease under or pursuant to Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Section 365 of the Bankruptcy Code, Senior Lender shall use commercially reasonable efforts to not permit the Senior Borrower to elect to treat such the Ground Lease as terminated terminated, and shall use commercially reasonable efforts to require such Individual the Senior Borrower to elect to remain in possession of the Premises demised under such the Ground Lease and the leasehold estate under such the Ground Lease.
(viiiiv) In the event that the Senior Lender shall not consent assumes a Ground Lease or becomes entitled to any party modifying or amending any material or economic terms ofa New Lease from the ground lessor prior to Senior Borrower rejecting such Ground Lease in a Proceeding, or terminating or surrendering, any Ground LeaseSenior Lender hereby agrees that, in each case without the prior written consent event that a Junior Lender forecloses or otherwise realizes upon its Equity Collateral in accordance with the terms of each Junior Lenderthis Agreement, including, but not limited to, the terms and provisions of Section 6 hereof, and thereby gains title to such Equity Collateral, Senior Lender hereby agrees that, promptly after the completion of such foreclosure or other action to transfer title to such Equity Collateral, it will assign the assumed Ground Lease or New Lease to the Senior Borrower.
(ixv) Notwithstanding anything to the contrary contained in this Agreement, (A) in the event that a Junior Lender requests that Senior Lender take or refrain from taking any action pursuant to this Section 15(g15(r) and Senior Lender complies with such request, such Junior Lender shall protect, indemnify and save harmless each the Indemnified Person Parties from and against any claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature (“Claims”)nature, other than consequentialknown or unknown, special, punitive, indirect contingent or other similar damagesotherwise, whether incurred or imposed within or outside the judicial process, including, without limitation, reasonable attorneys’ ' fees and disbursements imposed upon or incurred by or asserted against any of the Indemnified Person Parties by reason of such requested actions or inactions unless such Claims are a result of the fraud, gross negligence or willful misconduct of an Indemnified Person, and (B) Senior Lender shall have no obligation to take or refrain from taking any action pursuant to this Section 15(g), 15(r) (1) unless and until such Junior Lender has cured (or, in the case of a non-monetary Event of Default, has commenced and is diligently pursuing the cure of) all monetary Events of Default under the Senior Loan Documents and all non-monetary Events of Default under the Senior Loan Documents (other than those which are not susceptible of cure by Junior Lender and which do not, in Senior Lender’s reasonable judgment, not materially impair the value, use or operation of the Premises, and other than any Event of Default relating solely to the Ground Lease at issue) prior to the lapse of any cure periods set forth under Section 12(b12(a)(ii) and 12(c), as applicable, or (2) if compliance with the provisions of this Section 15(g15(r) would (x1) violate the Senior Loan Documents or any law, rule or regulation applicable to Senior Lender, (y) in the event that the Senior Loan or any interest therein is included in an asset of a “grantor trust” within the meaning of Subpart E, Part I of Subchapter J of the Code, causes the grantor trust to fail to qualify as a “fixed investment trust” within the meaning of Treasury Regulations Section 301.7701-4(c), or (z2) in the event that the Senior Loan or any interest therein is included as an asset of a real estate mortgage investment conduit (“"REMIC”") within the meaning of Section 860D(a) of the Code, cause the Senior Loan (or portion thereof which is included in a REMIC) to fail to qualify at all times as a "qualified mortgage” " within the meaning of Section 860G(a)(3) of the Code, or, subsequent to a foreclosure or delivery of a Deed deed in Lieulieu thereof, fail to qualify the Premises, as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code.
(x) . In addition, notwithstanding anything to the contrary contained herein, (A) if Senior Lender determines determines, in accordance with Accepted Servicing Practices, that any other action in connection with a Ground Lease Default is necessary to preserve the related Ground Lease or to protect or preserve the lien of the applicable Mortgage, Senior Lender may take any such action; provided, in either event, that Senior Lender shall have no right to enter into a New Lease or to assume the applicable Individual Borrower’s obligations under the Ground Lease (1) unless no Junior Lender has timely exercised its respective rights in accordance with the provisions of Section 15(g), which provisions shall control, or each Junior Lender’s rights to cause Mezzanine Nominee to enter into a New Lease or assume the applicable Individual Borrower’s obligations under such Ground Lease pursuant to Section 15(g) have expired in accordance with the express provisions of Section 15(g), and (B) Senior Lender or any servicer on its behalf shall not be obligated to expend or advance any of its own funds if such Person determines that such expenditure or advance would constitute a non-recoverable advance under the terms of any servicing agreement governing the administration of the Senior Loan (it being agreed that in the event a Junior Lender delivers to Senior Lender sums sufficient to cure any monetary default under the Ground Lease, the expenditure of such sums shall not be deemed a non-recoverable expenditure).
(xivi) Any sums due to Senior Lender from a Junior Lender under this Section 15(g15(r) or reasonably requested by Senior Lender in anticipation of incurring any expenses required to be paid by such Junior Lender pursuant to this Section 15(r), shall be paid within ten (10) Business Days of demand by Senior Lender. Failure to pay any such sums within five (5) Business Days of Senior Lender’s 's written notification to such Junior Lender that such Junior Lender failed to comply with the requirements of the immediately preceding sentence will constitute a waiver by such Junior Lender of any rights it may have under this Section 15(g) until such amounts are paid in full15(r).
(xiivii) Notwithstanding anything to the contrary contained herein, if Senior Lender or and/or one or more Junior Lenders elect to exercise any rights granted to a Junior Lender under this Section 15(g15(r), Senior Lender and each Senior Junior Lender acknowledge and agree that, as between Senior Lender and each Junior Lender, the most junior Subordinate Junior Lender shall have the superior right to exercise such rights; provided, however, that with respect to the rights granted Junior Lender pursuant to clause (iii) above, Subordinate Junior Lender satisfies the Assumption Conditions.
(xiiiviii) Nothing contained herein shall be deemed to grant any Junior Lender the right to cure a Ground Lease Default or obtain a New Lease beyond the period for cure or obtaining a New Lease afforded to the Senior Lender or a Junior Lender under the applicable Ground Lease (or any agreement entered into with the related Ground Lessorground lessor thereunder).
Appears in 1 contract
Samples: Intercreditor Agreement (Hcp, Inc.)
