Ground Lease Provisions. (a) The Ground Lease is in full force and effect has not been amended and represents the entire agreement between Borrower and Ground Lessor and there are no defaults, events of default or events which with the passage of time or the giving of notice, would constitute a default or event of default under the Ground Lease. (b) Borrower will pay the Ground Rent as and when required under the Ground Lease and will perform all of Borrower’s obligations as ground lessee under the Ground Lease as and when required under the Ground Lease. (c) Borrower will cause Ground Lessor to pay and perform all of Ground Lessor’s obligations under the Ground Lease as and when required under the Ground Lease, will not give any approval required or permitted under the Ground Lease without Lender’s prior approval and will not exercise any options under the Ground Lease without Lender’s prior approval. (d) Borrower will not amend or waive any provisions of the Ground Lease; cancel or surrender the Ground Lease; or release or discharge Ground Lessor from any of the terms or obligations of the Ground Lease, without in each instance Lender’s prior approval which may be withheld in its sole discretion. (e) Borrower promptly will deliver to Lender copies of any notices of default or of termination that Borrower receives or delivers relating to the Ground Lease. (f) Without limiting Lender’s independent rights and remedies under Section 365(h) of the Bankruptcy Code: (i) Borrower will not elect to treat the Ground Lease as terminated under Subsection 365(h)(l) of the Bankruptcy Code without Lender’s prior consent to be exercised in its sole discretion, any such election made without Lender’s prior consent is null and void; (ii) Without in any manner limiting the provisions of subparagraph (i) of this Section, the lien of this Deed of Trust will attach to all of Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including all of Borrower’s rights to remain in possession of the Property and Lender may assert, or direct Borrower to assert, any of such rights and remedies. (iii) If, pursuant to Subsection 365(h) of the Bankruptcy Code, Borrower seeks to offset against Ground Rent the amount of any damages caused by Ground Lessor’s failure to perform any of its obligations under the Ground Lease after the Ground Lessor rejects the Ground Lease under the Bankruptcy Code, Borrower will, prior to effecting such offset, notify Lender of its intent to do so, setting forth the amount proposed to be so offset and the basis therefor. Lender will have the right to object to all or any part of such offset and, in the event of such objection, Borrower will not effect any offset of the amount so objected to by Lender. Neither Lender’s failure to object as aforesaid nor any objection or other communication between Lender and Borrower relating to such offset will constitute an approval of any such offset by Lender. Borrower will indemnify, defend and save Lender harmless from and against any and all claims, demands, actions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever (including attorneys’ fees) arising from or relating to any offset by Borrower against the rent reserved in the Ground Lease. (iv) Borrower unconditionally assigns, transfers and sets over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by Ground Lessor of the Ground Lease under the Bankruptcy Code. Lender will have the right to proceed in its own name or in the name of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of the Ground Lease, including the right to file and prosecute, to the exclusion of Borrower, any proofs of claim, complaints, motions, application, notice and other documents, in any case in respect of Ground Lessor under the Bankruptcy Code. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and will continue in effect until all of the indebtedness and obligations secured by this Deed of Trust will have been satisfied and discharged in full. Any amounts received by Lender as damages arising out of the rejection of the Ground Lease as aforesaid will be applied first to all costs and expenses of Lender (including attorneys’ fees) incurred in connection with the exercise of any of its rights or remedies under this subsection (iv) and then in accordance with subsection (iii) of this Section. (v) In any Proceeding under the Bankruptcy Code relating to the Ground Lease or the Property, Borrower will appear in the Proceeding and will protect Lender’s interests in the Property and under the Loan Documents with attorneys and other professionals retained by Borrower and approved by Lender. Lender may elect, in Lender’s sole discretion, to engage its own attorneys and other professionals at Borrower’s expense to appear in the Proceeding and to protect Lender’s interests in the Property and under the Loan Documents. Borrower will not commence any Proceeding, file any application or make any motion relating to the Ground Lease in any Proceeding in its sole discretion under the Bankruptcy Code without Lender’s prior consent. (vi) Borrower will give Lender prompt notice of any filing by or against Ground Lessor or Borrower of a Proceeding under the Bankruptcy Code. The notice will set forth any information available to Borrower about the proceeding, including the date of the filing, the court in which the Proceeding was filed, and the relief sought. Borrower also will deliver to Lender, promptly following Borrower’s receipt thereof, any notices, summonses, pleadings, applications and other documents received by Borrower in connection with the Proceeding. (vii) If a Proceeding under the Bankruptcy Code is commenced by or against Borrower and Borrower, as lessee under the Ground Lease, rejects the Ground Lease pursuant to Section 365(a) of the Bankruptcy Code without giving Lender not less than 10 Business Days’ prior notice of the date on which Borrower will apply to the bankruptcy court for authority to reject the Ground Lease. Lender may, in its sole discretion, give Borrower notice within such 10-Business Day period stating that (a) Lender demands that Borrower assume the Ground Lease and assign it to Lender pursuant to Section 365 of the Bankruptcy Code and (b) Lender will cure or provide adequate assurance of prompt cure of all defaults and will provide adequate assurance of future performance under the Ground Lease. In that event, Borrower will not seek to reject the Ground Lease and will comply with the demand provided for in (a) above within 30 days after Lender’s notice was given provided Lender performs its obligations under (b) above. Effective upon the entry of an order for relief in respect of Borrower under Chapter 7 of the Bankruptcy Code, Borrower hereby assigns and transfers to Lender a non-exclusive right to apply to the bankruptcy court under Subsection 365(d)(1) of the Bankruptcy Code for an order extending the period during which the Ground Lease may be rejected or assumed. At Closing, Borrower will execute an agreement (the “Lock-Box Agreement”) satisfactory to Lender providing for the establishment of an account and sub-accounts (collectively, the “Deposit Account”). The Lock-Box Agreement will include the following provisions: (a) On the date of Closing, all revenues from the Property will thereafter be deposited directly into the Deposit Account and disbursed in accordance with the Lock-Box Agreement. The Lock-Box Agreement shall provide that upon a Trigger Event (defined herein), including Borrower’s failure to pay the Loan on or prior to the maturity date of the Loan, Lender will give the administrator of the Deposit Account notice and all funds shall be applied to Lender’s payment “waterfall” prior to any funds being disbursed to Borrower, provided that, while any event of default under the Loan Documents is continuing, Lender will retain the right to declare the Loan immediately due and payable and to exercise all other remedies under the Loan Documents. (b) The Deposit Account will be maintained in Lender’s name at a depository institution satisfactory to Lender. (c) Lender will have a first priority perfected security interest in the Deposit Account and in all cash and instruments on deposit therein and in any interest thereon or proceeds therefrom and Borrower will execute any documents Lender deems reasonably necessary to document and perfect such security interest. (d) Interest earned on the funds in the Deposit Account or any investments thereof will remain in the Deposit Account. (e) Borrower will pay the fees and expenses of the administrator of the Deposit Account. (f) As used herein, the term “Trigger Event” shall mean either (i) the occurrence of an event of default under the Loan Documents, (ii) a decline in the Debt Service Coverage for the Property below 1.25x, or (iii) if both (A) Applicant fails to maintain a long term debt rating of at least BBB- by Standard & Poor’s Credit Ratings Services, a division of The McGraw Hill Companies, Inc. and Baa by Xxxxx’x Investors Service, Inc. and (B) the Debt Service Coverage for the Property falls below 1.40x. Lender will allocate the Loan Amount among the properties comprising the Property based on the Appraisal obtained by Lender pursuant to this Agreement. Lender will notify Borrower of such allocations not less than 10 business days prior to Closing.
Appears in 2 contracts
Samples: Loan Application and Commitment Agreement (Healthcare Realty Trust Inc), Loan Application and Commitment Agreement (Healthcare Realty Trust Inc)
Ground Lease Provisions. (a) The Ground Lease is in full force and effect has not been amended and represents the entire agreement between Borrower and Ground Lessor and there are no defaults, events of default or events which with the passage of time or the giving of notice, would constitute a default or event of default under the Ground Lease.
(b) Borrower will pay the Ground Rent as and when required under the Ground Lease and will perform all of Borrower’s obligations as ground lessee under the Ground Lease as and when required under the Ground Lease.
(c) Borrower will cause Ground Lessor to pay and perform all of Ground Lessor’s obligations under the Ground Lease as and when required under the Ground Lease, will not give any approval required or permitted under the Ground Lease without Lender’s prior approval and will not exercise any options under the Ground Lease without Lender’s prior approval.
(d) Borrower will not amend or waive any provisions of the Ground Lease; cancel or surrender the Ground Lease; or release or discharge Ground Lessor from any of the terms or obligations of the Ground Lease, without in each instance Lender’s prior approval which may be withheld in its sole discretion.
(e) Borrower promptly will deliver to Lender copies of any notices of default or of termination that Borrower receives or delivers relating to the Ground Lease.
(f) Without limiting Lender’s independent rights and remedies under Section 365(h) of the Bankruptcy Code:
(i) Borrower will not elect to treat the Ground Lease as terminated under Subsection 365(h)(l365(h) (1) of the Bankruptcy Code without Lender’s prior consent to be exercised in its sole discretion, any such election made without Lender’s prior consent is null and void;
(ii) Without in any manner limiting the provisions of subparagraph (i) of this Section, the lien of this Deed of Trust will attach to all of Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including all of Borrower’s rights to remain in possession of the Property and Lender may assert, or direct Borrower to assert, any of such rights and remedies.
(iii) If, pursuant to Subsection 365(h) of the Bankruptcy Code, Borrower seeks to offset against Ground Rent the amount of any damages caused by Ground Lessor’s failure to perform any of its obligations under the Ground Lease after the Ground Lessor rejects the Ground Lease under the Bankruptcy Code, Borrower will, prior to effecting such offset, notify Lender of its intent to do so, setting forth the amount proposed to be so offset and the basis therefor. Lender will have the right to object to all or any part of such offset and, in the event of such objection, Borrower will not effect any offset of the amount so objected to by Lender. Neither Lender’s failure to object as aforesaid nor any objection or other communication between Lender and Borrower relating to such offset will constitute an approval of any such offset by Lender. Borrower will indemnify, defend and save Lender harmless from and against any and all claims, demands, actions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever (including attorneys’ fees) arising from or relating to any offset by Borrower against the rent reserved in the Ground Lease.
(iv) Borrower unconditionally assigns, transfers and sets over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by Ground Lessor of the Ground Lease under the Bankruptcy Code. Lender will have the right to proceed in its own name or in the name of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of the Ground Lease, including the right to file and prosecute, to the exclusion of Borrower, any proofs of claim, complaints, motions, application, notice and other documents, in any case in respect of Ground Lessor under the Bankruptcy Code. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and will continue in effect until all of the indebtedness and obligations secured by this Deed of Trust will have been satisfied and discharged in full. Any amounts received by Lender as damages arising out of the rejection of the Ground Lease as aforesaid will be applied first to all costs and expenses of Lender (including attorneys’ fees) incurred in connection with the exercise of any of its rights or remedies under this subsection (iv) and then in accordance with subsection (iii) of this Section.
(v) In any Proceeding under the Bankruptcy Code relating to the Ground Lease or the Property, Borrower will appear in the Proceeding and will protect Lender’s interests in the Property and under the Loan Documents with attorneys and other professionals retained by Borrower and approved by Lender. Lender may elect, in Lender’s sole discretion, to engage its own attorneys and other professionals at Borrower’s expense to appear in the Proceeding and to protect Lender’s interests in the Property and under the Loan Documents. Borrower will not commence any Proceeding, file any application or make any motion relating to the Ground Lease in any Proceeding in its sole discretion under the Bankruptcy Code without Lender’s prior consent.
(vi) Borrower will give Lender prompt notice of any filing by or against Ground Lessor or Borrower of a Proceeding under the Bankruptcy Code. The notice will set forth any information available to Borrower about the proceeding, including the date of the filing, the court in which the Proceeding was filed, and the relief sought. Borrower also will deliver to Lender, promptly following Borrower’s receipt thereof, any notices, summonses, pleadings, applications and other documents received by Borrower in connection with the Proceeding.
(vii) If a Proceeding under the Bankruptcy Code is commenced by or against Borrower and Borrower, as lessee under the Ground Lease, rejects the Ground Lease pursuant to Section 365(a) of the Bankruptcy Code without giving Lender not less than 10 Business Days’ prior notice of the date on which Borrower will apply to the bankruptcy court for authority to reject the Ground Lease. Lender may, in its sole discretion, give Borrower notice within such 10-Business Day period stating that (a) Lender demands that Borrower assume the Ground Lease and assign it to Lender pursuant to Section 365 of the Bankruptcy Code and (b) Lender will cure or provide adequate assurance of prompt cure of all defaults and will provide adequate assurance of future performance under the Ground Lease. In that event, Borrower will not seek to reject the Ground Lease and will comply with the demand provided for in (a) above within 30 days after Lender’s notice was given provided Lender performs its obligations under (b) above. Effective upon the entry of an order for relief in respect of Borrower under Chapter 7 of the Bankruptcy Code, Borrower hereby assigns and transfers to Lender a non-exclusive right to apply to the bankruptcy court under Subsection 365(d)(1) of the Bankruptcy Code for an order extending the period during which the Ground Lease may be rejected or assumed. At Closing, Borrower will execute an agreement (the “Lock-Box Agreement”) satisfactory to Lender providing for the establishment of an account and sub-accounts (collectively, the “Deposit Account”)) . The Lock-Box Agreement will include the following provisions:
(a) On the date of Closing, all revenues from the Property will thereafter be deposited directly into the Deposit Account and disbursed in accordance with the Lock-Box Agreement. The Lock-Box Agreement shall provide that upon a Trigger Event (defined herein), including Borrower’s failure to pay the Loan on or prior to the maturity date of the Loan, Lender will give the administrator of the Deposit Account notice and all funds shall be applied to Lender’s payment “waterfall” prior to any funds being disbursed to Borrower, provided that, while any event of default under the Loan Documents is continuing, Lender will retain the right to declare the Loan immediately due and payable and to exercise all other remedies under the Loan Documents.
(b) The Deposit Account will be maintained in Lender’s name at a depository institution satisfactory to Lender.
(c) Lender will have a first priority perfected security interest in the Deposit Account and in all cash and instruments on deposit therein and in any interest thereon or proceeds therefrom and Borrower will execute any documents Lender deems reasonably necessary to document and perfect such security interest.
(d) Interest earned on the funds in the Deposit Account or any investments thereof will remain in the Deposit Account.
(e) Borrower will pay the fees and expenses of the administrator of the Deposit Account.
(f) As used herein, the term “Trigger Event” shall mean either (i) the occurrence of an event of default under the Loan Documents, (ii) a decline in the Debt Service Coverage for the Property below 1.25x, or (iii) if both (A) Applicant fails to maintain a long term debt rating of at least BBB- by Standard & Poor’s Credit Ratings Services, a division of The McGraw Hill Companies, Inc. and Baa by Xxxxx’x Investors Service, Inc. and (B) the Debt Service Coverage for the Property falls below 1.40x. Lender will allocate the Loan Amount among the properties comprising the Property based on the Appraisal obtained by Lender pursuant to this Agreement. Lender will notify Borrower of such allocations not less than 10 business days prior to Closing.
Appears in 2 contracts
Samples: Loan Application and Commitment Agreement (Healthcare Realty Trust Inc), Loan Application and Commitment Agreement (Healthcare Realty Trust Inc)
Ground Lease Provisions. (a) The Borrower will: (i) pay the rent reserved by the Ground Lease is in full force as the same becomes due and effect has not been amended payable; (ii) promptly perform and represents observe all of the entire agreement between covenants, agreements, obligations and conditions required to be performed and observed by the Borrower and Ground Lessor and there are no defaults, events of default or events which with the passage of time or the giving of notice, would constitute a default or event of default under the Ground Lease, and do all things necessary to preserve and keep unimpaired its rights thereunder; (iii) promptly notify Lender in writing of the commencement of a proceeding under the federal bankruptcy laws by or against Borrower or the ground lessor under the Ground Lease; (iv) if any of the indebtedness secured by the Security Instrument remains unpaid at the time when notice may be given by the Borrower under the Ground Lease of the exercise of any right to renew or extend the term of the Ground Lease, promptly give notice to the ground lessor of the exercise of such right of extension or renewal; (v) in case any proceeds of insurance upon the Property or any part thereof are deposited with any person other than Lender, promptly notify Lender in writing of the name and address of the person with whom such proceeds have been deposited and the amount so deposited; (vi) promptly notify the Lender in writing of the receipt by the Borrower of any notice (other than notices customarily sent on a regular periodic basis) from the ground lessor under the Ground Lease and of any notice noting or claiming any default by the Borrower in the performance or observance of any of the terms, covenants, or conditions on the part of the Borrower to be performed or observed under the Ground Lease; (vii) promptly notify the Lender in writing of the receipt by the Borrower of any notice from the ground lessor of any termination of the Ground Lease pursuant to the provisions of the Ground Lease; (viii) promptly cause a copy of each such notice received by the Borrower from the ground lessor under the Ground Lease to be delivered to the Lender, and (ix) promptly notify Lender in writing of any request made by either party to the Ground Lease to the other party thereto for arbitration or appraisal proceedings pursuant to the Ground Lease, and of the institution of any arbitration or appraisal proceedings and promptly deliver to Lender a copy of the determination of the arbitrators or appraisers in each such proceeding.
(b) Borrower will pay not surrender the Ground Rent Lease or Borrower’s leasehold estate and interest therein, nor terminate or cancel the Ground Lease; and will not, without the prior written consent of Lender modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, and as further security for the repayment of the indebtedness hereby secured by the Security Instrument and when required for the performance of the covenants, agreements, obligations and conditions herein and in the Ground Lease contained, Borrower hereby assigns to Lender all of its rights, privileges and prerogatives as ground lessee under the Ground Lease to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease and any such termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease, without the prior written consent thereto by Lender, shall be void and of no force and effect. Without limiting the generality of the foregoing, Borrower will not reject the Ground Lease pursuant to 11 U.S.C. Section 365(a) or any successor law, or allow the Ground Lease to be deemed rejected by inaction and lapse of time, and will perform not elect to treat the Ground Lease as terminated by the ground lessor’s rejection of the Ground Lease pursuant to 11 U.S.C. Section 365(h)(1) or any successor law, and as further security for the repayment of the indebtedness secured hereby and for the performance of the covenants, agreements, obligations and conditions herein and in the Ground Lease contained, Borrower hereby assigns to Lender all of its rights, privileges and prerogatives of Borrower and Borrower’s bankruptcy trustee to deal with the Ground Lease, which right may arise as a result of the commencement of a proceeding under the federal bankruptcy laws by or against Borrower or ground lessor under the Ground Lease, including, without limitation, the right to assume or reject, or to compel the assumption or rejection of the Ground Lease pursuant to 11 U.S.C. Section 365(a) or any successor law, the right to seek and obtain extensions of time to assume or reject the Ground Lease, the right to elect whether to treat the Ground Lease as terminated by the ground lessor’s rejection of the Ground Lease or to remain in possession of the Property and offset damages pursuant to 11 U.S.C. Section 365(b)(1) or any successor law; and any exercise of such rights, privileges or prerogatives by Borrower or Borrower’s bankruptcy trustee without the prior written consent thereto by Lender shall be void and of no force and effect. No release or forbearance of any of Borrower’s obligations as ground lessee under the Ground Lease as and when required under the Ground Lease.
(c) Borrower will cause Ground Lessor , whether pursuant to pay and perform all of Ground Lessor’s obligations under the Ground Lease as and when required under the Ground Leaseor otherwise, will not give any approval required or permitted under the Ground Lease without Lender’s prior approval and will not exercise any options under the Ground Lease without Lender’s prior approval.
(d) shall release Borrower will not amend or waive any provisions of the Ground Lease; cancel or surrender the Ground Lease; or release or discharge Ground Lessor from any of the terms or obligations of the Ground Lease, without in each instance Lender’s prior approval which may be withheld in its sole discretion.
(e) Borrower promptly will deliver to Lender copies of any notices of default or of termination that Borrower receives or delivers relating to the Ground Lease.
(f) Without limiting Lender’s independent rights and remedies under Section 365(h) of the Bankruptcy Code:
(i) Borrower will not elect to treat the Ground Lease as terminated under Subsection 365(h)(l) of the Bankruptcy Code without Lender’s prior consent to be exercised in its sole discretion, any such election made without Lender’s prior consent is null and void;
(ii) Without in any manner limiting the provisions of subparagraph (i) of this Section, the lien of this Deed of Trust will attach to all of Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including all of Borrower’s rights to remain in possession of the Property and Lender may assert, or direct Borrower to assert, any of such rights and remedies.
(iii) If, pursuant to Subsection 365(h) of the Bankruptcy Code, Borrower seeks to offset against Ground Rent the amount of any damages caused by Ground Lessor’s failure to perform any of its obligations under the Ground Lease after the Ground Lessor rejects the Ground Lease under the Bankruptcy CodeSecurity Instrument, Borrower willincluding, prior to effecting such offsetbut not limited to, notify Lender of its intent to do so, setting forth the amount proposed to be so offset and the basis therefor. Lender will have the right to object to all or any part of such offset and, in the event of such objection, Borrower will not effect any offset of the amount so objected to by Lender. Neither Lender’s failure to object as aforesaid nor any objection or other communication between Lender and Borrower relating to such offset will constitute an approval of any such offset by Lender. Borrower will indemnify, defend and save Lender harmless from and against any and all claims, demands, actions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever (including attorneys’ fees) arising from or relating to any offset by Borrower against the rent reserved in the Ground Lease.
(iv) Borrower unconditionally assigns, transfers and sets over to Lender all of Borrower’s claims and rights obligations with respect to the payment of damages arising from any rejection by Ground Lessor of rent as provided for in the Ground Lease under and the Bankruptcy Code. Lender will have the right to proceed in its own name or in the name observance and performance of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of the Ground Lease, including the right to file and prosecute, to the exclusion of Borrower, any proofs of claim, complaints, motions, application, notice and other documents, in any case in respect of Ground Lessor under the Bankruptcy Code. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and will continue in effect until all of the indebtedness covenants, agreements, obligations and obligations secured by this Deed of Trust will have been satisfied and discharged conditions contained in full. Any amounts received by Lender as damages arising out of the rejection of the Ground Lease as aforesaid will to be applied first to all costs observed and expenses of Lender (including attorneys’ fees) incurred in connection with performed by the exercise of any of its rights or remedies under this subsection (iv) and then in accordance with subsection (iii) of this Section.
(v) In any Proceeding under the Bankruptcy Code relating to the Ground Lease or the Property, Borrower will appear in the Proceeding and will protect Lender’s interests in the Property and under the Loan Documents with attorneys and other professionals retained by Borrower and approved by Lender. Lender may elect, in Lender’s sole discretion, to engage its own attorneys and other professionals at Borrower’s expense to appear in the Proceeding and to protect Lender’s interests in the Property and under the Loan Documentsground lessee thereunder. Borrower will not commence any Proceeding, file any application or make any motion relating to the Ground Lease in any Proceeding in its sole discretion under the Bankruptcy Code without Lender’s prior consent.
(vi) Borrower will give Lender prompt notice of any filing by or against Ground Lessor or Borrower of a Proceeding under the Bankruptcy Code. The notice will set forth any information available to Borrower about the proceeding, including the date of the filing, the court in which the Proceeding was filed, and the relief sought. Borrower also will deliver hereby expressly grants to Lender, promptly following Borrower’s receipt and agrees that Lender shall have, the absolute and immediate right (notwithstanding any cure periods applicable to acceleration of the Note or exercise of remedies provided for herein) to enter in and upon the Property or any part thereof, any notices, summonses, pleadings, applications to such extent and other documents received by Borrower in connection with the Proceeding.
(vii) If a Proceeding under the Bankruptcy Code is commenced by or against Borrower and Borrower, as lessee under the Ground Lease, rejects the Ground Lease pursuant to Section 365(a) of the Bankruptcy Code without giving Lender not less than 10 Business Days’ prior notice of the date on which Borrower will apply to the bankruptcy court for authority to reject the Ground Lease. Lender mayoften as Lender, in its sole discretion, give deems necessary or desirable in order to prevent or to cure any such default by Borrower notice within such 10-Business Day period stating that (a) Lender demands that Borrower assume the Ground Lease and assign it to Lender pursuant to Section 365 of the Bankruptcy Code and (b) Lender will cure or provide adequate assurance of prompt cure of all defaults and will provide adequate assurance of future performance under the Ground Lease. In that eventLender may immediately pay and expend such sums of money (notwithstanding any cure periods applicable to acceleration of the Note or exercise of remedies provided for herein) as Lender, in its sole discretion, deems necessary to prevent or cure any such default by Borrower, and Borrower will not seek hereby agrees to reject pay to Lender, immediately and without demand, all such sums so paid and expended by Lender, together with interest thereon from the date of each such payment at the Default Rate as specified in the Note. All sums so paid and expended by Lender, and the interest thereon, shall be added to and be secured by the lien of the Security Instrument. Unless Lender shall otherwise expressly consent in writing, the fee title to the real property demised by the Ground Lease and will comply with the demand provided for leasehold estate thereunder shall not merge, but shall always remain separate and distinct, notwithstanding the union of such estates either in (a) above within 30 days after Lender’s notice was given provided Lender performs its obligations under (b) above. Effective upon the entry of an order for relief Borrower or in respect of Borrower under Chapter 7 of the Bankruptcy Code, Borrower hereby assigns and transfers to Lender a non-exclusive right to apply to the bankruptcy court under Subsection 365(d)(1) of the Bankruptcy Code for an order extending the period during which the Ground Lease may be rejected third party by purchase or assumed. At Closing, Borrower will execute an agreement (the “Lock-Box Agreement”) satisfactory to Lender providing for the establishment of an account and sub-accounts (collectively, the “Deposit Account”). The Lock-Box Agreement will include the following provisions:
(a) On the date of Closing, all revenues from the Property will thereafter be deposited directly into the Deposit Account and disbursed in accordance with the Lock-Box Agreement. The Lock-Box Agreement shall provide that upon a Trigger Event (defined herein), including Borrower’s failure to pay the Loan on or prior to the maturity date of the Loan, Lender will give the administrator of the Deposit Account notice and all funds shall be applied to Lender’s payment “waterfall” prior to any funds being disbursed to Borrower, provided that, while any event of default under the Loan Documents is continuing, Lender will retain the right to declare the Loan immediately due and payable and to exercise all other remedies under the Loan Documents.
(b) The Deposit Account will be maintained in Lender’s name at a depository institution satisfactory to Lenderotherwise.
(c) Lender will have a first priority perfected security interest in The Borrower will, within ten (10) days after written demand from the Deposit Account and in all cash and instruments on deposit therein and Lender, but not more than once in any interest twelve-month period, use its reasonable efforts to obtain from the ground lessor under the Ground Lease and deliver to the Lender a certificate stating that such ground lease is in full force and effect, is unmodified, that no notice of termination thereon has been served on the Borrower, stating the date to which the net rent has been paid and stating whether or proceeds therefrom not there are any defaults thereunder and Borrower will execute any documents Lender deems reasonably necessary to document and perfect specifying the nature of such security interestdefaults, if any.
(d) Interest earned on the funds in the Deposit Account or any investments thereof will remain in the Deposit Account.
(e) The Borrower will pay furnish to the fees and expenses Lender, upon demand, proof of payment of all items which are required to be paid by the administrator of the Deposit Account.
(f) As used herein, the term “Trigger Event” shall mean either (i) the occurrence of an event of default under the Loan Documents, (ii) a decline in the Debt Service Coverage for the Property below 1.25x, or (iii) if both (A) Applicant fails to maintain a long term debt rating of at least BBB- by Standard & Poor’s Credit Ratings Services, a division of The McGraw Hill Companies, Inc. and Baa by Xxxxx’x Investors Service, Inc. and (B) the Debt Service Coverage for the Property falls below 1.40x. Lender will allocate the Loan Amount among the properties comprising the Property based on the Appraisal obtained by Lender Borrower pursuant to this Agreement. Lender will notify Borrower of such allocations not less than 10 business days prior to Closingthe Ground Lease.
Appears in 1 contract
Ground Lease Provisions. With respect to each Ground Lease:
(a) The Borrower shall (i) except to the extent reserved for by Lender pursuant to Section 9.8 hereof, pay all rents, additional rents and other sums required to be paid by Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease is in full force and effect has not been amended and represents on the entire agreement between Borrower and Ground Lessor and there are no defaultspart of Borrower, events as tenant thereunder, (iii) promptly notify Lender of default or events which with the passage of time or the giving of noticeany written notice by the Fee Owner under the Ground Lease to Borrower of any default by Borrower, would constitute as tenant thereunder, and deliver to Lender a default true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or event insolvency proceeding of default the Fee Owner under the Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not, without the prior consent of Lender, (x) surrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) Borrower will pay With respect to the Ground Rent Lease, if Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Borrower, as tenant thereunder, and when required shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Ground Lease on the part of Borrower to be performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Ground Lease shall be kept unimpaired and will perform all of Borrower’s obligations as ground lessee free from default. If the landlord under the Ground Lease as and when required under the Ground Lease.
(c) Borrower will cause Ground Lessor shall deliver to pay and perform all Lender a copy of Ground Lessor’s obligations under the Ground Lease as and when required any written notice of default under the Ground Lease, will not give any approval required or permitted under the Ground Lease without Lender’s prior approval and will not exercise any options under the Ground Lease without Lender’s prior approval.
(d) Borrower will not amend or waive any provisions of the Ground Lease; cancel or surrender the Ground Lease; or release or discharge Ground Lessor from any of the terms or obligations of the Ground Lease, without in each instance Lender’s prior approval which may be withheld in its sole discretion.
(e) Borrower promptly will deliver such notice shall constitute full protection to Lender copies of for any notices of default action taken or of termination that Borrower receives or delivers relating to the Ground Lease.
(f) Without limiting Lender’s independent rights and remedies under Section 365(h) of the Bankruptcy Code:
(i) Borrower will not elect to treat the Ground Lease as terminated under Subsection 365(h)(l) of the Bankruptcy Code without Lender’s prior consent omitted to be exercised in its sole discretion, any such election made without taken by Lender’s prior consent is null and void;
(ii) Without in any manner limiting the provisions of subparagraph (i) of this Section, the lien of this Deed of Trust will attach to all of Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including all of Borrower’s rights to remain in possession of the Property and Lender may assert, or direct Borrower to assert, any of such rights and remedies.
(iii) If, pursuant to Subsection 365(h) of the Bankruptcy Code, Borrower seeks to offset against Ground Rent the amount of any damages caused by Ground Lessor’s failure to perform any of its obligations under the Ground Lease after the Ground Lessor rejects the Ground Lease under the Bankruptcy Code, Borrower will, prior to effecting such offset, notify Lender of its intent to do so, setting forth the amount proposed to be so offset and the basis therefor. Lender will have the right to object to all or any part of such offset and, in the event of such objectiongood faith, Borrower will not effect any offset of the amount so objected to by Lender. Neither Lender’s failure to object as aforesaid nor any objection or other communication between Lender and Borrower relating to such offset will constitute an approval of any such offset by Lenderin reliance thereon. Borrower will indemnifyshall exercise each individual option, defend and save Lender harmless from and against any and all claimsif any, demands, actions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever (including attorneys’ fees) arising from to extend or relating to any offset by Borrower against renew the rent reserved in the Ground Lease.
(iv) Borrower unconditionally assigns, transfers and sets over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by Ground Lessor term of the Ground Lease under upon demand by Lender made at any time within one (1) year prior to the Bankruptcy Code. last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender will have the right its attorney-in-fact to proceed in its own name or exercise any such option in the name of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of the Ground Lease, including the right to file and prosecute, to the exclusion upon behalf of Borrower, any proofs which power of claim, complaints, motions, application, notice and other documents, in any case in respect of Ground Lessor under the Bankruptcy Code. This assignment constitutes a present, attorney shall be irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and will continue in effect until all of the indebtedness and obligations secured by this Deed of Trust will have been satisfied and discharged in full. Any amounts received by Lender as damages arising out of the rejection of the Ground Lease as aforesaid will be applied first to all costs and expenses of Lender (including attorneys’ fees) incurred in connection with the exercise of any of its rights or remedies under this subsection (iv) and then in accordance with subsection (iii) of this Section.
(v) In any Proceeding under the Bankruptcy Code relating to the Ground Lease or the Property, Borrower will appear in the Proceeding and will protect Lender’s interests in the Property and under the Loan Documents with attorneys and other professionals retained by Borrower and approved by Lender. Lender may elect, in Lender’s sole discretion, to engage its own attorneys and other professionals at Borrower’s expense to appear in the Proceeding and to protect Lender’s interests in the Property and under the Loan Documents. Borrower will not commence any Proceeding, file any application or make any motion relating to the Ground Lease in any Proceeding in its sole discretion under the Bankruptcy Code without Lender’s prior consent.
(vi) Borrower will give Lender prompt notice of any filing by or against Ground Lessor or Borrower of a Proceeding under the Bankruptcy Code. The notice will set forth any information available to Borrower about the proceeding, including the date of the filing, the court in which the Proceeding was filed, and the relief sought. Borrower also will deliver to Lender, promptly following Borrower’s receipt thereof, any notices, summonses, pleadings, applications and other documents received by Borrower in connection with the Proceeding.
(vii) If a Proceeding under the Bankruptcy Code is commenced by or against Borrower and Borrower, as lessee under the Ground Lease, rejects the Ground Lease pursuant to Section 365(a) of the Bankruptcy Code without giving Lender not less than 10 Business Days’ prior notice of the date on which Borrower will apply to the bankruptcy court for authority to reject the Ground Lease. Lender may, in its sole discretion, give Borrower notice within such 10-Business Day period stating that (a) Lender demands that Borrower assume the Ground Lease and assign it to Lender pursuant to Section 365 of the Bankruptcy Code and (b) Lender will cure or provide adequate assurance of prompt cure of all defaults and will provide adequate assurance of future performance under the Ground Lease. In that event, Borrower will not seek to reject the Ground Lease and will comply with the demand provided for in (a) above within 30 days after Lender’s notice was given provided Lender performs its obligations under (b) above. Effective upon the entry of an order for relief in respect of Borrower under Chapter 7 of the Bankruptcy Code, Borrower hereby assigns and transfers to Lender a non-exclusive right to apply to the bankruptcy court under Subsection 365(d)(1) of the Bankruptcy Code for an order extending the period during which the Ground Lease may be rejected or assumed. At Closing, Borrower will execute an agreement (the “Lock-Box Agreement”) satisfactory to Lender providing for the establishment of an account and sub-accounts (collectively, the “Deposit Account”). The Lock-Box Agreement will include the following provisions:
(a) On the date of Closing, all revenues from the Property will thereafter be deposited directly into the Deposit Account and disbursed in accordance with the Lock-Box Agreement. The Lock-Box Agreement shall provide that upon a Trigger Event (defined herein), including Borrower’s failure to pay the Loan on or prior to the maturity date of the Loan, Lender will give the administrator of the Deposit Account notice and all funds shall be applied deemed to Lender’s payment “waterfall” prior to any funds being disbursed to Borrower, provided that, while any event of default under the Loan Documents is continuing, Lender will retain the right to declare the Loan immediately due and payable and to exercise all other remedies under the Loan Documents.
(b) The Deposit Account will be maintained in Lender’s name at a depository institution satisfactory to Lender.
(c) Lender will have a first priority perfected security interest in the Deposit Account and in all cash and instruments on deposit therein and in any interest thereon or proceeds therefrom and Borrower will execute any documents Lender deems reasonably necessary to document and perfect such security coupled with an interest.
(d) Interest earned on the funds in the Deposit Account or any investments thereof will remain in the Deposit Account.
(e) Borrower will pay the fees and expenses of the administrator of the Deposit Account.
(f) As used herein, the term “Trigger Event” shall mean either (i) the occurrence of an event of default under the Loan Documents, (ii) a decline in the Debt Service Coverage for the Property below 1.25x, or (iii) if both (A) Applicant fails to maintain a long term debt rating of at least BBB- by Standard & Poor’s Credit Ratings Services, a division of The McGraw Hill Companies, Inc. and Baa by Xxxxx’x Investors Service, Inc. and (B) the Debt Service Coverage for the Property falls below 1.40x. Lender will allocate the Loan Amount among the properties comprising the Property based on the Appraisal obtained by Lender pursuant to this Agreement. Lender will notify Borrower of such allocations not less than 10 business days prior to Closing.
Appears in 1 contract
Ground Lease Provisions. With respect to each Ground Lease:
(a) The Borrower shall or shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease is in full force and effect has not been amended and represents on the entire agreement between Borrower and Ground Lessor and there are no defaultspart of Mortgage Borrower, events as tenant thereunder, (iii) promptly notify Lender of default or events which with the passage of time or the giving of noticeany written notice by the Fee Owner under the Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, would constitute as tenant thereunder, and deliver to Lender a default true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or event insolvency proceeding of default the Fee Owner under the Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not, and shall not cause or permit Mortgage Borrower to, without the prior consent of Lender, (x) surrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) Borrower will pay With respect to the Ground Rent Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and when required shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and will perform all of Borrower’s obligations as ground lessee free from default. If the landlord under the Ground Lease as and when required under the Ground Lease.
(c) Borrower will cause Ground Lessor shall deliver to pay and perform all Lender a copy of Ground Lessor’s obligations under the Ground Lease as and when required any written notice of default under the Ground Lease, will not give any approval required or permitted under the Ground Lease without Lender’s prior approval and will not exercise any options under the Ground Lease without Lender’s prior approval.
(d) Borrower will not amend or waive any provisions of the Ground Lease; cancel or surrender the Ground Lease; or release or discharge Ground Lessor from any of the terms or obligations of the Ground Lease, without in each instance Lender’s prior approval which may be withheld in its sole discretion.
(e) Borrower promptly will deliver such notice shall constitute full protection to Lender copies of for any notices of default action taken or of termination that Borrower receives or delivers relating to the Ground Lease.
(f) Without limiting Lender’s independent rights and remedies under Section 365(h) of the Bankruptcy Code:
(i) Borrower will not elect to treat the Ground Lease as terminated under Subsection 365(h)(l) of the Bankruptcy Code without Lender’s prior consent omitted to be exercised taken by Lender, in its sole discretiongood faith, any such election made without Lender’s prior consent is null and void;
(ii) Without in any manner limiting the provisions of subparagraph (i) of this Section, the lien of this Deed of Trust will attach to all of Borrower’s rights and remedies at any time arising under reliance thereon. Borrower shall or pursuant to Subsection 365(h) of the Bankruptcy Code, including all of Borrower’s rights to remain in possession of the Property and Lender may assert, or direct shall cause Mortgage Borrower to assertexercise each individual option, any of such rights and remedies.
(iii) Ifif any, pursuant to Subsection 365(h) of extend or renew the Bankruptcy Code, Borrower seeks to offset against Ground Rent the amount of any damages caused by Ground Lessor’s failure to perform any of its obligations under the Ground Lease after the Ground Lessor rejects the Ground Lease under the Bankruptcy Code, Borrower will, prior to effecting such offset, notify Lender of its intent to do so, setting forth the amount proposed to be so offset and the basis therefor. Lender will have the right to object to all or any part of such offset and, in the event of such objection, Borrower will not effect any offset of the amount so objected to by Lender. Neither Lender’s failure to object as aforesaid nor any objection or other communication between Lender and Borrower relating to such offset will constitute an approval of any such offset by Lender. Borrower will indemnify, defend and save Lender harmless from and against any and all claims, demands, actions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever (including attorneys’ fees) arising from or relating to any offset by Borrower against the rent reserved in the Ground Lease.
(iv) Borrower unconditionally assigns, transfers and sets over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by Ground Lessor term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and subject to Mortgage Lender’s rights under the Bankruptcy Code. Mortgage Loan Agreement, Borrower hereby expressly authorizes and appoints Lender will have the right its attorney-in-fact to proceed in its own name or exercise any such option in the name of and upon behalf of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of the Ground Lease, including the right to file and prosecute, to the exclusion of and/or Mortgage Borrower, any proofs which power of claim, complaints, motions, application, notice and other documents, in any case in respect of Ground Lessor under the Bankruptcy Code. This assignment constitutes a present, attorney shall be irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and will continue in effect until all of the indebtedness and obligations secured by this Deed of Trust will have been satisfied and discharged in full. Any amounts received by Lender as damages arising out of the rejection of the Ground Lease as aforesaid will be applied first to all costs and expenses of Lender (including attorneys’ fees) incurred in connection with the exercise of any of its rights or remedies under this subsection (iv) and then in accordance with subsection (iii) of this Section.
(v) In any Proceeding under the Bankruptcy Code relating to the Ground Lease or the Property, Borrower will appear in the Proceeding and will protect Lender’s interests in the Property and under the Loan Documents with attorneys and other professionals retained by Borrower and approved by Lender. Lender may elect, in Lender’s sole discretion, to engage its own attorneys and other professionals at Borrower’s expense to appear in the Proceeding and to protect Lender’s interests in the Property and under the Loan Documents. Borrower will not commence any Proceeding, file any application or make any motion relating to the Ground Lease in any Proceeding in its sole discretion under the Bankruptcy Code without Lender’s prior consent.
(vi) Borrower will give Lender prompt notice of any filing by or against Ground Lessor or Borrower of a Proceeding under the Bankruptcy Code. The notice will set forth any information available to Borrower about the proceeding, including the date of the filing, the court in which the Proceeding was filed, and the relief sought. Borrower also will deliver to Lender, promptly following Borrower’s receipt thereof, any notices, summonses, pleadings, applications and other documents received by Borrower in connection with the Proceeding.
(vii) If a Proceeding under the Bankruptcy Code is commenced by or against Borrower and Borrower, as lessee under the Ground Lease, rejects the Ground Lease pursuant to Section 365(a) of the Bankruptcy Code without giving Lender not less than 10 Business Days’ prior notice of the date on which Borrower will apply to the bankruptcy court for authority to reject the Ground Lease. Lender may, in its sole discretion, give Borrower notice within such 10-Business Day period stating that (a) Lender demands that Borrower assume the Ground Lease and assign it to Lender pursuant to Section 365 of the Bankruptcy Code and (b) Lender will cure or provide adequate assurance of prompt cure of all defaults and will provide adequate assurance of future performance under the Ground Lease. In that event, Borrower will not seek to reject the Ground Lease and will comply with the demand provided for in (a) above within 30 days after Lender’s notice was given provided Lender performs its obligations under (b) above. Effective upon the entry of an order for relief in respect of Borrower under Chapter 7 of the Bankruptcy Code, Borrower hereby assigns and transfers to Lender a non-exclusive right to apply to the bankruptcy court under Subsection 365(d)(1) of the Bankruptcy Code for an order extending the period during which the Ground Lease may be rejected or assumed. At Closing, Borrower will execute an agreement (the “Lock-Box Agreement”) satisfactory to Lender providing for the establishment of an account and sub-accounts (collectively, the “Deposit Account”). The Lock-Box Agreement will include the following provisions:
(a) On the date of Closing, all revenues from the Property will thereafter be deposited directly into the Deposit Account and disbursed in accordance with the Lock-Box Agreement. The Lock-Box Agreement shall provide that upon a Trigger Event (defined herein), including Borrower’s failure to pay the Loan on or prior to the maturity date of the Loan, Lender will give the administrator of the Deposit Account notice and all funds shall be applied deemed to Lender’s payment “waterfall” prior to any funds being disbursed to Borrower, provided that, while any event of default under the Loan Documents is continuing, Lender will retain the right to declare the Loan immediately due and payable and to exercise all other remedies under the Loan Documents.
(b) The Deposit Account will be maintained in Lender’s name at a depository institution satisfactory to Lender.
(c) Lender will have a first priority perfected security interest in the Deposit Account and in all cash and instruments on deposit therein and in any interest thereon or proceeds therefrom and Borrower will execute any documents Lender deems reasonably necessary to document and perfect such security coupled with an interest.
(d) Interest earned on the funds in the Deposit Account or any investments thereof will remain in the Deposit Account.
(e) Borrower will pay the fees and expenses of the administrator of the Deposit Account.
(f) As used herein, the term “Trigger Event” shall mean either (i) the occurrence of an event of default under the Loan Documents, (ii) a decline in the Debt Service Coverage for the Property below 1.25x, or (iii) if both (A) Applicant fails to maintain a long term debt rating of at least BBB- by Standard & Poor’s Credit Ratings Services, a division of The McGraw Hill Companies, Inc. and Baa by Xxxxx’x Investors Service, Inc. and (B) the Debt Service Coverage for the Property falls below 1.40x. Lender will allocate the Loan Amount among the properties comprising the Property based on the Appraisal obtained by Lender pursuant to this Agreement. Lender will notify Borrower of such allocations not less than 10 business days prior to Closing.
Appears in 1 contract
Samples: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Ground Lease Provisions. (a) The Grantor covenants and agrees specifically with respect to each Ground Lease is and the leasehold estate created thereunder that, subject to the restrictions on any of the following actions contained in any Lease and the Grantor's ability to enforce the Leases in a commercially reasonable manner, Grantor shall maintain the Ground Lease in full force and effect has and not been amended and represents take or allow to be taken any action that would terminate or cancel, or permit the entire agreement between Borrower and Ground Lessor and there are no defaultstermination or cancellation of, events of default or events which with the passage of time or the giving of notice, would constitute a default or event of default under the Ground LeaseLease without the prior written consent of Mortgagee and the Required Lenders, which consents shall not be unreasonably withheld. Notwithstanding the foregoing, the obligation of Grantor to perform the covenants and agreements set forth in this Section 25(a) shall be no greater than the obligations of Grantor set forth in the Credit Agreement.
(b) Borrower will Grantor shall pay on or before the Ground Rent as due dates thereof all rents and when required other amounts payable under the provisions of the Ground Lease (subject to the expiration of any cure period applicable thereto) and subject to the restrictions on the following actions contained in any Lease and Xxxxxxx's ability to enforce the Leases in a commercially reasonable manner, will timely and fully observe and perform all of Borrower’s obligations as ground lessee under the terms, covenants, agreements and conditions of the Ground Lease required therein to be observed and performed by Grantor as lessee; provided however, that the obligation of Grantor to perform the covenants and when required under agreements set forth in this sentence shall be no greater than the obligations of Grantor set forth in Section 5.8 of the Credit Agreement. Grantor shall upon written request, furnish to Mortgagee satisfactory evidence of payment evidencing the payment of all rents due thereunder, which evidence shall be furnished to Mortgagee semiannually for the preceding months of such semiannual period. Grantor will not do or permit anything to be done, the doing of which or refrain from doing anything, the omission of which, will terminate or impair or tend to impair the security of this Mortgage or will be grounds for terminating the Ground LeaseLease or declaring a forfeiture thereof; provided however, that the obligation of Grantor to perform the covenants and agreements set forth in this sentence shall be no greater than the obligations of Grantor set forth in Section 5.8 of the Credit Agreement.
(c) Borrower will cause Ground Lessor to pay Grantor agrees that in the event of the acquisition by Grantor at any time of the fee estate in the Land described in Schedule "A" attached hereto, or any part thereof, there shall be no merger of such fee estate with the leasehold estate created and perform all existing by virtue of Ground Lessor’s obligations under the Ground Lease as and when required under the Ground Lease, will not give any approval required or permitted under and the Ground Lease without Lender’s prior approval shall remain in full force and will not exercise any options under effect in accordance with its terms as a separate and distinct estate in the Ground Lease without Lender’s prior approvalland.
(d) Borrower will not amend If an Event of Default has occurred and is continuing, at Mortgagee's election, Mortgagee may make any payments or waive do any provisions of the Ground Lease; cancel act or surrender the Ground Lease; or release or discharge Ground Lessor from any of the terms or obligations of the Ground Lease, without in each instance Lender’s prior approval which may be withheld in its sole discretion.
(e) Borrower promptly will deliver to Lender copies of any notices of default or of termination that Borrower receives or delivers relating to the Ground Lease.
(f) Without limiting Lender’s independent rights and remedies under Section 365(h) of the Bankruptcy Code:
(i) Borrower will not elect to treat the Ground Lease as terminated under Subsection 365(h)(l) of the Bankruptcy Code without Lender’s prior consent thing required to be exercised in its sole discretion, any such election made without Lender’s prior consent is null and void;
(ii) Without in any manner limiting paid or done by the provisions of subparagraph (i) of this Section, the lien of this Deed of Trust will attach to all of Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including all of Borrower’s rights to remain in possession of the Property and Lender may assert, or direct Borrower to assert, any of such rights and remedies.
(iii) If, pursuant to Subsection 365(h) of the Bankruptcy Code, Borrower seeks to offset against Ground Rent the amount of any damages caused by Ground Lessor’s failure to perform any of its obligations under the Ground Lease after the Ground Lessor rejects the Ground Lease under the Bankruptcy Code, Borrower will, prior to effecting such offset, notify Lender of its intent to do so, setting forth the amount proposed to be so offset and the basis therefor. Lender will have the right to object to all or any part of such offset and, in the event of such objection, Borrower will not effect any offset of the amount so objected to by Lender. Neither Lender’s failure to object as aforesaid nor any objection or other communication between Lender and Borrower relating to such offset will constitute an approval of any such offset by Lender. Borrower will indemnify, defend and save Lender harmless from and against any and all claims, demands, actions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever (including attorneys’ fees) arising from or relating to any offset by Borrower against the rent reserved in the Ground Lease.
(iv) Borrower unconditionally assigns, transfers and sets over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by Ground Lessor of the Ground Lease under the Bankruptcy Code. Lender will have the right to proceed in its own name or in the name of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of the Ground Lease, including the right to file and prosecute, to the exclusion of Borrower, any proofs of claim, complaints, motions, application, notice and other documents, in any case in respect of Ground Lessor under the Bankruptcy Code. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and will continue in effect until all of the indebtedness and obligations secured by this Deed of Trust will have been satisfied and discharged in full. Any amounts received by Lender as damages arising out of the rejection of the Ground Lease as aforesaid will be applied first to all costs and expenses of Lender (including attorneys’ fees) incurred in connection with the exercise of any of its rights or remedies under this subsection (iv) and then in accordance with subsection (iii) of this Section.
(v) In any Proceeding under the Bankruptcy Code relating to the Ground Lease or the Property, Borrower will appear in the Proceeding and will protect Lender’s interests in the Property and under the Loan Documents with attorneys and other professionals retained by Borrower and approved by Lender. Lender may elect, in Lender’s sole discretion, to engage its own attorneys and other professionals at Borrower’s expense to appear in the Proceeding and to protect Lender’s interests in the Property and under the Loan Documents. Borrower will not commence any Proceeding, file any application or make any motion relating to the Ground Lease in any Proceeding in its sole discretion under the Bankruptcy Code without Lender’s prior consent.
(vi) Borrower will give Lender prompt notice of any filing by or against Ground Lessor or Borrower of a Proceeding under the Bankruptcy Code. The notice will set forth any information available to Borrower about the proceeding, including the date of the filing, the court in which the Proceeding was filed, and the relief sought. Borrower also will deliver to Lender, promptly following Borrower’s receipt thereof, any notices, summonses, pleadings, applications and other documents received by Borrower in connection with the Proceeding.
(vii) If a Proceeding under the Bankruptcy Code is commenced by or against Borrower and Borrower, Grantor as lessee under the Ground Lease. Thereupon Mortgagee shall in addition to all other remedies of Mortgagee available herein, rejects in the Credit Agreement or other Fundamental Documents, be fully subrogated to any and all rights of Grantor, as lessee, under the terms and provisions of the Ground Lease pursuant arising from or relating to Section 365(a) of the Bankruptcy Code without giving Lender not less than 10 Business Days’ prior notice of the date on which Borrower will apply to the bankruptcy court for authority to reject the Ground Lease. Lender may, in its sole discretion, give Borrower notice within such 10-Business Day period stating that (a) Lender demands that Borrower assume the Ground Lease and assign it to Lender pursuant to Section 365 of the Bankruptcy Code and (b) Lender will cure payment or provide adequate assurance of prompt cure of all defaults and will provide adequate assurance of future performance under the Ground Lease. In that event, Borrower will not seek to reject the Ground Lease and will comply with the demand provided for in (a) above within 30 days after Lender’s notice was given provided Lender performs its obligations under (b) above. Effective upon the entry of an order for relief in respect of Borrower under Chapter 7 of the Bankruptcy Code, Borrower hereby assigns and transfers to Lender a non-exclusive right to apply to the bankruptcy court under Subsection 365(d)(1) of the Bankruptcy Code for an order extending the period during which the Ground Lease may be rejected or assumed. At Closing, Borrower will execute an agreement (the “Lock-Box Agreement”) satisfactory to Lender providing for the establishment of an account and sub-accounts (collectively, the “Deposit Account”). The Lock-Box Agreement will include the following provisions:
(a) On the date of Closing, all revenues from the Property will thereafter be deposited directly into the Deposit Account and disbursed in accordance with the Lock-Box Agreement. The Lock-Box Agreement shall provide that upon a Trigger Event (defined herein), including Borrower’s failure to pay the Loan on or prior to the maturity date of the Loan, Lender will give the administrator of the Deposit Account notice and all funds shall be applied to Lender’s payment “waterfall” prior to any funds being disbursed to Borrower, provided that, while any event of default under the Loan Documents is continuing, Lender will retain the right to declare the Loan immediately due and payable and to exercise all other remedies under the Loan Documents.
(b) The Deposit Account will be maintained in Lender’s name at a depository institution satisfactory to Lender.
(c) Lender will have a first priority perfected security interest in the Deposit Account and in all cash and instruments on deposit therein and in any interest thereon or proceeds therefrom and Borrower will execute any documents Lender deems reasonably necessary to document and perfect such security interest.
(d) Interest earned on the funds in the Deposit Account or any investments thereof will remain in the Deposit Accountperformance.
(e) Borrower Grantor will pay not surrender the fees and expenses leasehold estate created by the Ground Lease, nor terminate or cancel the Ground Lease, in each case without the consent of the administrator Mortgagee and the Required Lenders, which consents shall not be unreasonably withheld, and Grantor will not modify, change, supplement, alter, or amend the Ground Lease either orally or in writing other than as permitted by Section 6.21 of the Deposit AccountCredit Agreement.
(f) No release or forbearance of any obligations under the Ground Lease, pursuant to the Ground Lease or otherwise, shall release Grantor from any of its obligations under this Mortgage.
(g) Grantor will promptly notify Mortgagee in writing of the commencement of a proceeding under the federal bankruptcy laws by or against the lessor under a Ground Lease.
(h) If any of the Secured Indebtedness secured hereby remains unpaid at the time when notice may be given by the lessee under the Ground Lease of the exercise of any right to renew or extend the term of the Ground Lease, Grantor will properly and timely exercise such right of extension or renewal and promptly give notice to the lessor of the exercise of such right of extension or renewal, provided that Grantor shall not be obligated to exercise any right to renew or extend the term of the Ground Lease unless the property which is the subject of such Ground Lease has been subleased by the Grantor pursuant to a Material Lease, and the term of the Ground Lease will expire prior to the expiration of such sublease if such renewal or extension right is not exercised by Grantor.
(i) In case any proceeds of insurance upon the Land, the Mortgaged Property or any part thereof are deposited with any person other than Mortgagee pursuant to the requirements of the Ground Lease, Grantor will promptly notify Mortgagee in writing of the name and address of the person with whom such proceeds have been deposited and the amount so deposited.
(j) Grantor will promptly notify Mortgagee in writing of any request made by either party to the Ground Lease to the other party thereto for arbitration or appraisal proceedings pursuant to the Ground Lease, and of the institution of any arbitration or appraisal proceedings and promptly deliver to Mortgagee a copy of the determination of the arbitrators or appraisers in each such proceeding.
(k) As used hereinfurther security for the Secured Indebtedness, Xxxxxxx hereby agrees to deposit with the Mortgagee a fully executed counterpart of the Ground Lease and all supplements thereto and amendments thereof, to be retained by the Mortgagee until the Secured Indebtedness secured hereby is fully paid, in each case if and to the extent Grantor possesses such documents.
(l) For purposes of Section 4 of Article 1, the term “Trigger Event” "ownership interest in the Real Property" shall mean either (i) the occurrence of an event of default under the Loan Documents, (ii) a decline "leasehold estate in the Debt Service Coverage for the Property below 1.25x, or (iii) if both (A) Applicant fails to maintain a long term debt rating of at least BBB- by Standard & Poor’s Credit Ratings Services, a division of The McGraw Hill Companies, Inc. and Baa by Xxxxx’x Investors Service, Inc. and (B) the Debt Service Coverage for the Property falls below 1.40x. Lender will allocate the Loan Amount among the properties comprising the Property based on the Appraisal obtained by Lender pursuant to this Agreement. Lender will notify Borrower of such allocations not less than 10 business days prior to ClosingReal Property."
Appears in 1 contract
Samples: Mortgage (Ventas Inc)
Ground Lease Provisions. With respect to each Ground Lease:
(a) The Borrower shall or shall cause Senior Mezzanine Borrower to cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease is in full force and effect has not been amended and represents on the entire agreement between Borrower and Ground Lessor and there are no defaultspart of Mortgage Borrower, events as tenant thereunder, (iii) promptly notify Lender of default or events which with the passage of time or the giving of noticeany written notice by the Fee Owner under the Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, would constitute as tenant thereunder, and deliver to Lender a default true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or event insolvency proceeding of default the Fee Owner under the Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt. Borrower shall not, and shall not cause or permit Mortgage Borrower to, without the prior consent of Lender, (x) surrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b) Borrower will pay With respect to the Ground Rent Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and when required shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and will perform all of Borrower’s obligations as ground lessee free from default. If the landlord under the Ground Lease as and when required under the Ground Lease.
(c) Borrower will cause Ground Lessor shall deliver to pay and perform all Lender a copy of Ground Lessor’s obligations under the Ground Lease as and when required any written notice of default under the Ground Lease, will not give any approval required or permitted under the Ground Lease without Lender’s prior approval and will not exercise any options under the Ground Lease without Lender’s prior approval.
(d) Borrower will not amend or waive any provisions of the Ground Lease; cancel or surrender the Ground Lease; or release or discharge Ground Lessor from any of the terms or obligations of the Ground Lease, without in each instance Lender’s prior approval which may be withheld in its sole discretion.
(e) Borrower promptly will deliver such notice shall constitute full protection to Lender copies of for any notices of default action taken or of termination that Borrower receives or delivers relating to the Ground Lease.
(f) Without limiting Lender’s independent rights and remedies under Section 365(h) of the Bankruptcy Code:
(i) Borrower will not elect to treat the Ground Lease as terminated under Subsection 365(h)(l) of the Bankruptcy Code without Lender’s prior consent omitted to be exercised taken by Lender, in its sole discretiongood faith, any such election made without Lender’s prior consent is null and void;
(ii) Without in any manner limiting the provisions of subparagraph (i) of this Section, the lien of this Deed of Trust will attach to all of Borrower’s rights and remedies at any time arising under reliance thereon. Borrower shall or pursuant to Subsection 365(h) of the Bankruptcy Code, including all of Borrower’s rights to remain in possession of the Property and Lender may assert, or direct shall cause Senior Mezzanine Borrower to assertcause Mortgage Borrower to exercise each individual option, any of such rights and remedies.
(iii) Ifif any, pursuant to Subsection 365(h) of extend or renew the Bankruptcy Code, Borrower seeks to offset against Ground Rent the amount of any damages caused by Ground Lessor’s failure to perform any of its obligations under the Ground Lease after the Ground Lessor rejects the Ground Lease under the Bankruptcy Code, Borrower will, prior to effecting such offset, notify Lender of its intent to do so, setting forth the amount proposed to be so offset and the basis therefor. Lender will have the right to object to all or any part of such offset and, in the event of such objection, Borrower will not effect any offset of the amount so objected to by Lender. Neither Lender’s failure to object as aforesaid nor any objection or other communication between Lender and Borrower relating to such offset will constitute an approval of any such offset by Lender. Borrower will indemnify, defend and save Lender harmless from and against any and all claims, demands, actions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever (including attorneys’ fees) arising from or relating to any offset by Borrower against the rent reserved in the Ground Lease.
(iv) Borrower unconditionally assigns, transfers and sets over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by Ground Lessor term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and subject to Mortgage Lender’s rights under the Bankruptcy Code. Mortgage Loan Agreement, Borrower hereby expressly authorizes and appoints Lender will have the right its attorney-in-fact to proceed in its own name or exercise any such option in the name of and upon behalf of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of the Ground Lease, including the right to file and prosecute, to the exclusion of and/or Mortgage Borrower, any proofs which power of claim, complaints, motions, application, notice and other documents, in any case in respect of Ground Lessor under the Bankruptcy Code. This assignment constitutes a present, attorney shall be irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and will continue in effect until all of the indebtedness and obligations secured by this Deed of Trust will have been satisfied and discharged in full. Any amounts received by Lender as damages arising out of the rejection of the Ground Lease as aforesaid will be applied first to all costs and expenses of Lender (including attorneys’ fees) incurred in connection with the exercise of any of its rights or remedies under this subsection (iv) and then in accordance with subsection (iii) of this Section.
(v) In any Proceeding under the Bankruptcy Code relating to the Ground Lease or the Property, Borrower will appear in the Proceeding and will protect Lender’s interests in the Property and under the Loan Documents with attorneys and other professionals retained by Borrower and approved by Lender. Lender may elect, in Lender’s sole discretion, to engage its own attorneys and other professionals at Borrower’s expense to appear in the Proceeding and to protect Lender’s interests in the Property and under the Loan Documents. Borrower will not commence any Proceeding, file any application or make any motion relating to the Ground Lease in any Proceeding in its sole discretion under the Bankruptcy Code without Lender’s prior consent.
(vi) Borrower will give Lender prompt notice of any filing by or against Ground Lessor or Borrower of a Proceeding under the Bankruptcy Code. The notice will set forth any information available to Borrower about the proceeding, including the date of the filing, the court in which the Proceeding was filed, and the relief sought. Borrower also will deliver to Lender, promptly following Borrower’s receipt thereof, any notices, summonses, pleadings, applications and other documents received by Borrower in connection with the Proceeding.
(vii) If a Proceeding under the Bankruptcy Code is commenced by or against Borrower and Borrower, as lessee under the Ground Lease, rejects the Ground Lease pursuant to Section 365(a) of the Bankruptcy Code without giving Lender not less than 10 Business Days’ prior notice of the date on which Borrower will apply to the bankruptcy court for authority to reject the Ground Lease. Lender may, in its sole discretion, give Borrower notice within such 10-Business Day period stating that (a) Lender demands that Borrower assume the Ground Lease and assign it to Lender pursuant to Section 365 of the Bankruptcy Code and (b) Lender will cure or provide adequate assurance of prompt cure of all defaults and will provide adequate assurance of future performance under the Ground Lease. In that event, Borrower will not seek to reject the Ground Lease and will comply with the demand provided for in (a) above within 30 days after Lender’s notice was given provided Lender performs its obligations under (b) above. Effective upon the entry of an order for relief in respect of Borrower under Chapter 7 of the Bankruptcy Code, Borrower hereby assigns and transfers to Lender a non-exclusive right to apply to the bankruptcy court under Subsection 365(d)(1) of the Bankruptcy Code for an order extending the period during which the Ground Lease may be rejected or assumed. At Closing, Borrower will execute an agreement (the “Lock-Box Agreement”) satisfactory to Lender providing for the establishment of an account and sub-accounts (collectively, the “Deposit Account”). The Lock-Box Agreement will include the following provisions:
(a) On the date of Closing, all revenues from the Property will thereafter be deposited directly into the Deposit Account and disbursed in accordance with the Lock-Box Agreement. The Lock-Box Agreement shall provide that upon a Trigger Event (defined herein), including Borrower’s failure to pay the Loan on or prior to the maturity date of the Loan, Lender will give the administrator of the Deposit Account notice and all funds shall be applied deemed to Lender’s payment “waterfall” prior to any funds being disbursed to Borrower, provided that, while any event of default under the Loan Documents is continuing, Lender will retain the right to declare the Loan immediately due and payable and to exercise all other remedies under the Loan Documents.
(b) The Deposit Account will be maintained in Lender’s name at a depository institution satisfactory to Lender.
(c) Lender will have a first priority perfected security interest in the Deposit Account and in all cash and instruments on deposit therein and in any interest thereon or proceeds therefrom and Borrower will execute any documents Lender deems reasonably necessary to document and perfect such security coupled with an interest.
(d) Interest earned on the funds in the Deposit Account or any investments thereof will remain in the Deposit Account.
(e) Borrower will pay the fees and expenses of the administrator of the Deposit Account.
(f) As used herein, the term “Trigger Event” shall mean either (i) the occurrence of an event of default under the Loan Documents, (ii) a decline in the Debt Service Coverage for the Property below 1.25x, or (iii) if both (A) Applicant fails to maintain a long term debt rating of at least BBB- by Standard & Poor’s Credit Ratings Services, a division of The McGraw Hill Companies, Inc. and Baa by Xxxxx’x Investors Service, Inc. and (B) the Debt Service Coverage for the Property falls below 1.40x. Lender will allocate the Loan Amount among the properties comprising the Property based on the Appraisal obtained by Lender pursuant to this Agreement. Lender will notify Borrower of such allocations not less than 10 business days prior to Closing.
Appears in 1 contract
Samples: Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Ground Lease Provisions. Borrower warrants that the Ground Lease has not been terminated, modified or amended, and, to Borrower’s knowledge, that no event of default exists thereunder. With respect to the Ground Lease, Borrower further covenants and agrees as follows:
(a) The Borrower shall at all times promptly and faithfully keep, observe and perform in all material respects, or cause to be kept, observed and performed in all material respects, all the covenants, agreements and conditions contained in the Ground Lease is to be kept, observed and performed by the lessee thereunder and shall in full force all material respects conform to and effect has not been amended and represents the entire agreement between Borrower and Ground Lessor and there are no defaults, events of default or events which comply with the passage terms and conditions of time the Ground Lease. Borrower shall not do or permit anything to be done, the giving doing of noticewhich, or refrain from doing anything, the omission of which, would constitute a default or event of default be grounds for the lessor under the Ground Lease.Lease (the “Ground Landlord”), to terminate the Ground Lease or declare a forfeiture of the leasehold estate, in whole or in part;
(b) Borrower will pay the Ground Rent as and when required under shall not modify, change, supplement, alter or amend the Ground Lease and will perform all in any material respect, either orally or in writing without the consent of Borrower’s obligations as ground lessee under Lender (provided that no consent of Lender shall be required with respect to amendments to expand the Ground Lease as and when required permitted use of the Real Estate under the Ground Lease., to extend the term of the Ground Lease or to correct ministerial errors in the Ground Lease), and Borrower shall not terminate, cancel, sever or surrender, or suffer the termination, cancellation, severance or surrender of the Ground Lease or the leasehold estate, without the consent of Lender and shall not in any way release or discharge the Ground Landlord of or from any material obligations, covenants, conditions and agreements by said party to be kept, observed or performed. Any attempt on the part of Borrower to exercise any right proscribed pursuant to the preceding provisions of this Section 3.28(b) without the prior written consent of Lender shall be void and of no force and effect;
(c) Borrower will cause Ground Lessor to pay and perform all No release or forbearance of Ground Lessorany of Borrower’s obligations under the Ground Lease as and when required pursuant to the terms thereof, or otherwise, shall release Borrower of its obligations under this Mortgage or any instrument supplemental hereto;
(d) Borrower shall give Lender prompt notice of any default by Ground Landlord under the Ground Lease, will not give or of the receipt by Borrower of any approval required notice of default from the Ground Landlord. Borrower shall promptly furnish to Lender any and all information which Lender may reasonably request concerning the performance and observance of all covenants, agreements and conditions contained in the Ground Lease by the Ground Landlord to be observed and performed, including, without limitation, any and all material notices, communications, plans, specifications or permitted other instruments or documents received or given by Borrower in any way relating to or affecting the Ground Lease which may concern or affect the estate of the lessor or the lessee in or under the Ground Lease without Lender’s prior approval and will not exercise or in the leased premises thereby demised;
(e) In the event of any options under failure by Borrower to keep, observe or perform or failure to cause to be kept, observed or performed, any covenant, agreement or condition contained in the Ground Lease without Lender’s prior approval.
(d) Borrower will not amend in any material respect or waive any provisions to comply with the terms and conditions of the Ground Lease; cancel or surrender the Ground Lease; or release or discharge Ground Lessor from Lease in any of the terms or obligations of material respect beyond applicable notice and cure periods under the Ground Lease, without in each instance Lender may, at Lender’s prior approval which may option, perform, observe or comply with the Ground Lease on behalf of Borrower, and any such performance, observance or compliance by Lender shall not remove or waive, as between Borrower and Lender any corresponding Event of Default under the terms of this Mortgage. Any amount so advanced by Lender to effect such performance, observance or compliance and all costs and expenses incurred in connection therewith (including, without limitation, reasonable attorneys’ fees), with interest thereon at the Default Rate, shall be withheld in its sole discretion.
(e) a demand obligation of Borrower promptly will deliver to Lender copies of any notices of default or of termination that Borrower receives or delivers relating Lender, and, to the Ground Lease.extent permitted by law, shall be added to the Indebtedness and shall be secured by this Mortgage;
(f) Without limiting LenderBorrower shall not, without Lxxxxx’s independent rights and remedies under Section 365(h) of the Bankruptcy Code:
(i) Borrower will not prior written consent, elect to treat the Ground Lease or the leasehold estate as terminated under Subsection 365(h)(l) of the Bankruptcy Code without Lender’s prior consent to be exercised in its sole discretion, any such election made without Lender’s prior consent is null and void;
(ii) Without in any manner limiting the provisions of subparagraph (i) of this Section, the lien of this Deed of Trust will attach to all of Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h365(h)(1) of the Bankruptcy Code, including all after rejection or disaffirmance of Borrower’s rights to remain in possession of Ground Lease by the Property and Lender may assertGround Landlord, or direct Borrower to assertits successors and assigns, or by any of such rights and remedies.
(iii) If, pursuant to Subsection 365(h) of the Bankruptcy Code, Borrower seeks to offset against Ground Rent the amount of any damages caused by Ground Lessor’s failure to perform any of its obligations under the Ground Lease after the Ground Lessor rejects the Ground Lease under the Bankruptcy Code, Borrower will, prior to effecting such offset, notify Lender of its intent to do so, setting forth the amount proposed to be so offset and the basis therefor. Lender will have the right to object to all or any part of such offset and, in the event of such objection, Borrower will not effect any offset of the amount so objected to by Lender. Neither Lender’s failure to object as aforesaid nor any objection or other communication between Lender and Borrower relating to such offset will constitute an approval trustee of any such offset by Lender. Borrower will indemnifyparty, defend and save Lender harmless from any such election made without such consent shall be void and against any and all claims, demands, actions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever (including attorneys’ fees) arising from or relating to any offset by Borrower against the rent reserved in the Ground Lease.ineffective;
(ivg) Borrower hereby unconditionally assigns, transfers and sets over to unto Lender all of Borrower’s claims and rights to the payment of damages arising from that may hereafter arise as a result of any rejection by Ground Lessor or disaffirmance of the Ground Lease under by the Ground Landlord, or its successors and assigns, or by any trustee of any such party pursuant to the Bankruptcy Code. Lender will shall have and is hereby granted the right to proceed proceed, in its own name or in the name of Borrower Bxxxxxxx, in respect of any claim, suit, action or proceeding relating to the rejection or disaffirmance of the Ground LeaseLease (including, including without limitation, the right to file and prosecute, to the exclusion of Borrower, any proofs of claim, complaints, motions, applicationapplications, notice notices and other documents, ) in any case in respect of Ground Lessor such lessor or any of its successors and assigns, under the Bankruptcy Code. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and will shall continue in effect until all of the indebtedness and obligations secured by this Deed of Trust will Mortgage shall have been satisfied and discharged in full. Any amounts received by Lender as damages arising out of the any such rejection or disaffirmance of the Ground Lease as aforesaid will shall be applied first to all costs and expenses of Lender (including including, without limitation, reasonable attorneys’ fees) incurred in connection with the exercise of any of its rights or remedies under this subsection subparagraph and then, in such manner as Lender shall determine, to the reduction of the Indebtedness, whether or not then due, and the balance, if any, shall then be paid to Borrower;
(ivh) and then in accordance with subsection (iiiIn the event, that, pursuant to Subsection 365(h)(2) of this Section.
(v) In the Bankruptcy Code, Borrower seeks to offset against the rent or other payments payable under the Ground Lease, the amount of any Proceeding damages caused by the nonperformance by the Ground Landlord, or its successors and assigns, of such party’s obligations under the Ground Lease after rejection or disaffirmance thereof under the Bankruptcy Code relating to the Ground Lease or the PropertyCode, Borrower will appear shall, prior to effecting such offset, notify Lender of Bxxxxxxx’s intent to do so, setting forth the amounts proposed to be so offset and the basis therefor. Lender shall have the right to object to all or any part of such offset, and, in the Proceeding and will protect Lender’s interests in event of such objection, Borrower shall not effect any offset of the Property and under the Loan Documents with attorneys and other professionals retained by Borrower and approved amounts so objected to by Lender. If Lender shall have failed to object as aforesaid within ten (10) business days after such notice, Borrower may elect, proceed to effect such offset in the amounts set forth in such notice. Neither Lender’s sole discretion, failure to engage its own attorneys object as aforesaid nor any objection or other communication between Borrower and other professionals at Borrower’s expense to appear in the Proceeding and to protect Lender’s interests in the Property and under the Loan Documents. Borrower will not commence any Proceeding, file any application or make any motion Lender relating to the Ground Lease in such offset shall constitute an approval by Lender of any Proceeding in its sole discretion under the Bankruptcy Code without Lender’s prior consent.such offset;
(vii) Borrower will shall, promptly after obtaining knowledge thereof, give written notice to Lender prompt notice of any actual or contemplated filing by or against the Ground Lessor or Borrower Landlord, of a Proceeding petition under the Bankruptcy Code, and use reasonable efforts to give prompt oral notice to Lender of such actual or contemplated filing. The aforesaid written notice will shall set forth any information available to Borrower about the proceeding, including concerning the date of the filing, the court in on which the Proceeding such petition was filed or is expected to be filed, and the relief soughtsought therein. Borrower also will deliver to Lender, shall promptly following Borrower’s after receipt thereof, deliver to Lender any and all notices, summonses, pleadings, applications and other documents received by Borrower in connection with the Proceeding.any such petition and any proceedings relating thereto;
(viij) If In the event that any action, proceeding, motion or notice shall be commenced or filed in respect of the Ground Landlord, or the Real Estate, or the Secured Property or any part thereof, in connection with any case under the Bankruptcy Code, Lender shall have, and is hereby granted, the option, to conduct and control any such litigation with counsel of Lxxxxx’s choice. Lender may proceed, in its own name or in the name of Bxxxxxxx, in connection with any such litigation, and Bxxxxxxx agrees to execute any and all powers, pleadings, authorizations, consents and other documents required by Lxxxxx in connection therewith. Borrower shall, upon demand, pay to Lender all costs and expenses (including, without limitation, reasonable attorneys’ fees) paid or incurred by Lxxxxx in connection with the prosecution or conduct of any such proceedings, together with interest at the Default Rate, and, to the extent permitted by law, such costs, expenses and interest shall be added to the Indebtedness and shall be secured hereby. Borrower shall not, without the prior written consent of Lender, commence any action, suit, proceeding or case, or file any application or make any motion, in respect of the Ground Lease in any such case under the Bankruptcy Code;
(k) In the event that a Proceeding petition under the Bankruptcy Code is commenced shall be filed by or against Borrower and Borrower, as lessee under the Ground Lease, rejects Borrower or any trustee of Borrower shall decide to reject or disaffirm the Ground Lease pursuant to Section 365(a) of the Bankruptcy Code without giving Code, Borrower shall give Lender not less than 10 Business Days’ at least ten (10) business days prior written notice of the date on which Borrower will apply application shall be made to the bankruptcy court for authority to reject or disaffirm the Ground Lease. Lender mayshall have the right, in its sole discretionbut not the obligation, give to serve upon Borrower notice or such trustee within such ten (10-Business Day ) day period a notice stating that (ai) Lender demands that Borrower or such trustee assume and assign the Ground Lease and assign it to Lender pursuant to Section 365 of the Bankruptcy Code Code, and (bii) Lender will cure covenants to cure, or provide adequate assurance of prompt cure of all defaults and will provide adequate assurance of future performance under the Ground Lease. In the event that eventLxxxxx serves such notice upon Borrower or such trustee, neither Borrower will not nor such trustee shall seek to reject or disaffirm the Ground Lease and will Borrower and such trustee shall comply with the such demand provided for in within thirty (a30) above within 30 days after Lendersuch notice shall have been given, subject to Lxxxxx’s notice was given provided Lender performs its obligations performance of such covenant;
(l) In the event that a petition under the Bankruptcy Code shall be filed by or against Borrower, and if within thirty (b30) above. Effective upon days after the entry date of an order for relief in respect filing of such petition neither Borrower nor any trustee of Borrower under Chapter 7 shall take any affirmative action to assume, reject or disaffirm the Ground Lease pursuant to the Bankruptcy Code, then Lender shall have the right, but not the obligation, to serve upon Borrower or such trustee a notice stating that (i) Lender demands that Borrower or such trustee assume and assign the Ground Lease to Lender pursuant to Section 365 of the Bankruptcy Code, and (ii) Lender covenants to cure, or provide adequate assurance of prompt cure of, all defaults and provide adequate assurance of future performance under the Ground Lease. In the event that Lender serves such notice upon Borrower or such trustee, either Borrower or such trustee shall comply with such demand within fifteen (15) days after such notice shall have been given, subject to Lender’s performance of such covenant;
(m) Borrower hereby assigns assigns, transfers and transfers sets over to Lender a non-exclusive nonexclusive right to apply to the bankruptcy court Bankruptcy Court under Subsection 365(d)(1365(d)(4) of the Bankruptcy Code for an order extending the period during which the Ground Lease may be rejected rejected, disaffirmed or assumed. At Closing, assumed after the entry of any order for relief in respect of Borrower will execute an agreement under the Bankruptcy Code; and
(n) If at any time during the “Lock-Box Agreement”) satisfactory to Lender providing for term of the establishment loan secured by this Deed of an account and sub-accounts (collectivelyTrust , the “Deposit Account”). The Lock-Box Agreement will include the following provisions:
(a) On the date of Closing, all revenues from the Property will thereafter be deposited directly into the Deposit Account and disbursed in accordance Borrower or any party affiliated with the Lock-Box Agreement. The Lock-Box Agreement shall provide that upon a Trigger Event (defined herein), including Borrower’s failure to pay the Loan on or prior to the maturity date of the Loan, Lender will give the administrator of the Deposit Account notice and all funds shall be applied to Lender’s payment “waterfall” prior to any funds being disbursed to Borrower, provided that, while any event of default under the Loan Documents is continuing, Lender will retain the right to declare the Loan immediately due and payable and to exercise all other remedies under the Loan Documents.
(b) The Deposit Account will be maintained in Lender’s name at a depository institution satisfactory to Lender.
(c) Lender will have a first priority perfected security interest in the Deposit Account and in all cash and instruments on deposit therein and in any interest thereon or proceeds therefrom and Borrower will execute any documents Lender deems reasonably necessary to document and perfect such security interest.
(d) Interest earned on the funds in the Deposit Account or any investments thereof will remain in the Deposit Account.
(e) Borrower will pay the fees and expenses of the administrator of the Deposit Account.
(f) As used herein, the term “Trigger Event” shall mean acquire either (i) the occurrence of an event of default under interest in the Loan DocumentsReal Estate currently held by the Ground Landlord, or (ii) a decline in the Debt Service Coverage for fee title to the Property below 1.25xReal Estate, or (iii) if both (A) Applicant fails any portion thereof, such title shall be subject to maintain a long term debt rating the lien hereof upon such acquisition without the necessity of at least BBB- by Standard & Poor’s Credit Ratings Servicesany further writing, a division or the recording of The McGraw Hill Companies, Inc. and Baa by Xxxxx’x Investors Service, Inc. and (B) the Debt Service Coverage for the Property falls below 1.40x. Lender will allocate the Loan Amount among the properties comprising the Property based on the Appraisal obtained by Lender pursuant to this Agreement. Lender will notify Borrower of such allocations not less than 10 business days prior to Closingany further instrument.
Appears in 1 contract
