Ground Lease Representations. (a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord thereunder, and, to the best of Borrower’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, (iv) neither Mortgage Borrower nor the landlord under any Ground Lease has commenced any action or given or received any notice for the purpose of terminating any Ground Lease, (v) each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each Fee Owner under each Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding; (b) Each Ground Lease or a memorandum thereof has been duly recorded, each Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Security Instrument. There has not been any modifications, amendments or other changes in the terms of any Ground Lease since its recordation other than those that have been disclosed to Lender in writing; (c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each Ground Lease is not subject to any lien superior to, or of equal priority with, the related Security Instrument; (d) Either (i) each Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of Lender, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Lease; (e) Except as set forth on Schedule XXIX hereof, each Ground Lease does not impose any restrictions on subleasing, provided the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunder; (f) Except as set forth on Schedule XXIX hereof, each Ground Lease requires the related Fee Owner to give notice of any default by Mortgage Borrower to Lender prior to Fee Owner exercising its remedies thereunder; (g) Each Ground Lease has a term (including any extension option periods) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); and (h) Except as set forth on Schedule XXIX hereto, each Ground Lease requires the related Fee Owner to enter into a new lease upon termination of such Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceeding.
Appears in 6 contracts
Samples: Mezzanine Loan Agreement (Northstar Realty Finance Corp.), Mezzanine Loan Agreement (Northstar Realty Finance Corp.), Mezzanine Loan Agreement (Northstar Realty Finance Corp.)
Ground Lease Representations. (a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (ii) as of August 8, 2007, there are were no defaults under any Ground Lease by Mortgage Borrower, or, to the best of BorrowerPledgor’s knowledge, the applicable landlord thereunder, and, to the best of BorrowerPledgor’s knowledge, no event had occurred which but for the passage of time, or notice, or both would constitute a default under such Ground Lease, (iii) to Pledgor’s Actual Knowledge, as of the date hereof, there are no defaults under any Ground Lease by Mortgage Borrower or landlord thereunder, and no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iiiiv) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, (ivv) neither Mortgage Borrower nor the landlord under any each Ground Lease has commenced any action or given or received any notice for the purpose of terminating any such Ground Lease, (vvi) each no Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Mortgage Borrower has not consented to, any attempt to transfer any the related Fee Estate free and clear of the such Ground Lease under section 363(f) of the Bankruptcy Code, and (vivii) each to the best of Pledgor’s knowledge, no Fee Owner under each any Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable no Fee Estate under each with respect to any Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;.
(b) Each The Ground Lease Leases or a memorandum thereof has have been duly recorded, each the Ground Lease Leases permits the interest of the lessee thereunder to be encumbered by the related applicable Security Instrument. There , and, except as disclosed to Lender in writing prior to the Closing Date, there has not been any modifications, amendments or other changes change in the terms of any the Ground Lease Leases since its recordation other than those that have been disclosed to Lender in writingtheir recordation;
(c) Except for Permitted Encumbrances and As of August 8, 2007, except as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each the Ground Lease is Leases were not subject to any lien Liens superior to, or of equal priority with, the related applicable Security Instrument;
(d) Either (i) each Mortgage Borrower’s interest in the Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of LenderLeases are assignable upon notice to, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated but without the prior written consent of Lender and of, the lessor thereunder and, in the event that any such action without such consent it is not binding on Lenderso assigned, its successors or assigns or (ii) Mortgage Borrower it is not permittedfurther assignable upon notice to, but without the prior written need to obtain the consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereofof, to amend, modify, cancel or terminate each Ground Leasesuch lessor;
(e) Except as set forth on Schedule XXIX hereof, each The Ground Lease does not impose any restrictions on subleasing, provided Leases require the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunder;
(f) Except as set forth on Schedule XXIX hereof, each Ground Lease requires the related Fee Owner lessor thereunder to give notice of any default by Mortgage Borrower to Mortgage Lender prior and the Ground Leases further provide that notice of termination given under the Ground Leases are not effective against Mortgage Lender unless a copy of the notice has been delivered to Fee Owner exercising its remedies thereunderMortgage Lender in the manner described in the applicable Ground Lease;
(f) Mortgage Lender is permitted to cure any default under the Ground Leases pursuant to the terms thereof, which is curable after the receipt of notice of any default before the lessor thereunder may terminate such Ground Lease;
(g) Each Ground Lease has a term (including any extension option periodsoptions) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); andDate;
(h) Except as set forth on Schedule XXIX hereto, each The Ground Lease requires Leases require the related Fee Owner lessor to enter into a new lease upon termination of such the applicable Ground Lease for any reason, including in the event of a rejection of such Ground Lease in a bankruptcy proceeding; and
(i) The Ground Leases do not impose restrictions on subletting.
Appears in 5 contracts
Samples: Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.), Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.), Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Ground Lease Representations. With respect to each Ground Lease:
(a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord thereunder, and, to the best of Borrower’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, and (iv) neither Mortgage Borrower nor the landlord under any each Ground Lease has commenced any action or given or received any notice for the purpose of terminating any such Ground Lease, (v) each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each Fee Owner under each Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;.
(b) Each Ground Lease or a memorandum thereof has (including any material amendment) have been duly recorded, each the Ground Lease Leases permits the interest of the lessee thereunder to be encumbered by the related applicable Security Instrument. There , and there has not been any modifications, amendments or other changes change in the terms of any the Ground Leases (as they may have been amended) since the recordation of the Ground Lease since its recordation other than those that have been disclosed to Lender in writingor the most recent memorandum or amendment thereof;
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each the Ground Lease is are not subject to any lien Liens superior to, or of equal priority with, the related applicable Security Instrument;
(d) Either (i) each Mortgage Borrower’s interest in the Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of Lenderis assignable upon notice to, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated but without the prior written consent of Lender and of, the lessor thereunder and, in the event that any such action without such consent it is not binding on Lenderso assigned, its successors or assigns or (ii) Mortgage Borrower it is not permittedfurther assignable upon notice to, but without the prior written need to obtain the consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereofof, to amend, modify, cancel or terminate each Ground Leasesuch lessor;
(e) Except as set forth on Schedule XXIX hereof, each Ground Lease does not impose any restrictions on subleasing, provided the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunder;
(f) Except as set forth on Schedule XXIX hereof, each The Ground Lease requires the related Fee Owner lessor thereunder to give notice of any default by Mortgage Borrower to Mortgage Lender prior and the Ground Lease further provides that notice of termination given under the Ground Lease is not effective against Lender unless a copy of the notice has been delivered to Fee Owner exercising its remedies thereunderMortgage Lender in the manner described in the applicable Ground Lease;
(f) Mortgage Lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of Mortgage Borrower under the Ground Lease) to cure any default under the Ground Lease, which is curable after the receipt of notice of any default before the lessor thereunder may terminate such Ground Lease;
(g) Each Ground Lease has a term (including any extension option periods) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); andDate;
(h) Except as set forth on Schedule XXIX hereto, each The Ground Lease requires the related Fee Owner lessor to enter into a new lease upon termination of such the applicable Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceeding; and
(i) Under the terms of each Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the Properties, with Mortgage Lender or a trustee appointed by Mortgage Lender having the right to hold and disburse such Net Proceeds as the Restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Meristar Hospitality Corp), Mezzanine Loan Agreement (Meristar Hospitality Operating Partnership Lp)
Ground Lease Representations. (a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (ii) there are no defaults under any Ground Lease by Mortgage BorrowerBorrower or Ground Lessor, or, to the best of Borrower’s knowledge, the applicable landlord thereunder, and, to the best of Borrower’s knowledge, and no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, and (iv) neither Mortgage Borrower nor the landlord under any Ground Lease Lessor has commenced any action or given or received any notice for the purpose of terminating any such Ground Lease, (v) each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each Fee Owner under each Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;
(b) Each Security Instrument which is secured by Mortgage Borrower's interest in a Ground Lease is also secured by the related fee interest in the applicable Property, and the fee interest is subject and subordinate of record to the applicable Security Instrument, and such Security Instrument does not by its terms provide that it will be subordinated to the Lien of any other mortgage or other Lien upon such fee interest, and upon the occurrence of a Mortgage Loan Event of Default, Mortgage Lender has the right to foreclose or otherwise exercise its rights with respect to the fee interest within a commercially reasonable time;
(c) The Ground Leases or a memorandum thereof has have been duly recorded, each the Ground Lease permits Leases permit the interest of the lessee thereunder to be encumbered by the related applicable Security Instrument. There , and there has not been any modifications, amendments or other changes change in the terms of any the Ground Lease Leases since its recordation other than those that have been disclosed to Lender in writingtheir recordation. The Ground Leases cannot be cancelled, terminated, surrendered or amended without the prior written consent of Lender;
(cd) Except for Permitted Encumbrances and as indicated Mortgage Borrower's interest in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each Ground Lease is Leases are not subject to any lien Liens superior to, or of equal priority with, the related applicable Security Instrument;
(de) Either (i) each Mortgage Borrower's interest in the Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of LenderLeases are assignable upon notice to, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated but without the prior written consent of Lender and of, the lessor thereunder and, in the event that any such action without such consent it is not binding on Lenderso assigned, its successors or assigns or (ii) Mortgage Borrower it is not permittedfurther assignable upon notice to, but without the prior written need to obtain the consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereofof, to amend, modify, cancel or terminate each Ground Lease;
(e) Except as set forth on Schedule XXIX hereof, each Ground Lease does not impose any restrictions on subleasing, provided the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunderlessor;
(f) Except as set forth on Schedule XXIX hereof, each The Ground Lease requires Leases require the related Fee Owner lessor thereunder to give notice of any default by Mortgage Borrower to Lender prior and the Ground Leases further provide that notice of termination given under the Ground Leases are not effective against Lender unless a copy of the notice has been delivered to Fee Owner exercising its remedies thereunderLender in the manner described in the applicable Ground Lease;
(g) Each Lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of Mortgage Borrower under the Ground Lease has Leases) to cure any default under the Ground Leases, which is curable after the receipt of notice of any default before the lessor thereunder may terminate such Ground Lease;
(h) The Ground Leases have a term (including any extension option periods) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); andDate;
(hi) Except as set forth on Schedule XXIX hereto, each The Ground Lease requires Leases require the related Fee Owner Ground Lessor to enter into a new lease upon termination of such the applicable Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceeding;
(j) Under the terms of each Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the Properties, with Mortgage Lender or a trustee appointed by Mortgage Lender having the right to hold and disburse such Net Proceeds as the Restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon; and
(k) The Ground Leases do not impose restrictions on subletting.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Felcor Lodging Trust Inc), Junior Mezzanine Loan Agreement (Felcor Lodging Trust Inc)
Ground Lease Representations. With respect to each Ground Lease:
(a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord thereunder, and, to the best of Borrower’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, (iv) neither Mortgage Borrower nor the landlord under any each Ground Lease has commenced any action or given or received any notice for the purpose of terminating any such Ground Lease, (v) each no Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any the related Fee Estate free and clear of the such Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each no Fee Owner under each any Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable no Fee Estate under each with respect to any Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;.
(b) Each Ground Lease or a memorandum thereof has (including any material amendment) have been duly recorded, each the Ground Lease Leases permits the interest of the lessee thereunder to be encumbered by the related applicable Security Instrument. There , and there has not been any modifications, amendments or other changes change in the terms of any the Ground Leases (as they may have been amended) since the recordation of the Ground Lease since its recordation other than those that have been disclosed to Lender in writingor the most recent memorandum or amendment thereof;
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each the Ground Lease is are not subject to any lien Liens superior to, or of equal priority with, the related applicable Security Instrument;
(d) Either (i) each Borrower’s interest in the Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of Lenderis assignable upon notice to, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated but without the prior written consent of Lender and of, the lessor thereunder and, in the event that any such action without such consent it is not binding on Lenderso assigned, its successors or assigns or (ii) Mortgage Borrower it is not permittedfurther assignable upon notice to, but without the prior written need to obtain the consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereofof, to amend, modify, cancel or terminate each Ground Leasesuch lessor;
(e) Except as set forth on Schedule XXIX hereof, each Ground Lease does not impose any restrictions on subleasing, provided the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunder;
(f) Except as set forth on Schedule XXIX hereof, each The Ground Lease requires the related Fee Owner lessor thereunder to give notice of any default by Mortgage Borrower to Lender prior and the Ground Lease further provides that notice of termination given under the Ground Lease is not effective against Lender unless a copy of the notice has been delivered to Fee Owner exercising its remedies thereunderLender in the manner described in the applicable Ground Lease;
(f) Lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of Borrower under the Ground Lease) to cure any default under the Ground Lease, which is curable after the receipt of notice of any default before the lessor thereunder may terminate such Ground Lease;
(g) Each Ground Lease has a term (including any extension option periods) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); andDate;
(h) Except as set forth on Schedule XXIX hereto, each The Ground Lease requires the related Fee Owner lessor to enter into a new lease upon termination of such the applicable Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceeding; and
(i) Under the terms of each Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the Properties, with Lender or a trustee appointed by Lender having the right to hold and disburse such Net Proceeds as the Restoration progresses, or to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon.
(j) The Ground Leases do not impose restrictions on subletting.
Appears in 2 contracts
Samples: Loan Agreement (Meristar Hospitality Operating Partnership Lp), Loan Agreement (Meristar Hospitality Corp)
Ground Lease Representations. (a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord thereunder, and, to the best of Borrower’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, (iv) neither Mortgage Borrower nor the landlord under any each Ground Lease has commenced any action or given or received any notice for the purpose of terminating any such Ground Lease, (v) each no Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to sell or transfer any the related Fee Estate free and clear of the such Ground Lease under section Section 363(f) (or any similar provision) of the Bankruptcy Code, and (vi) each to the best of Borrower’s knowledge, no Fee Owner under each any Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable no Fee Estate under each with respect to any Ground Lease is not an asset being administered in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;.
(b) Each The Ground Lease does not by its terms provide that it will be subordinated to the Lien of any other mortgage or other Lien upon the related fee interest;
(c) The Ground Leases or a memorandum thereof has have been duly recorded, each the Ground Lease Leases permits the interest of the lessee thereunder to be encumbered by the related applicable Security Instrument. There , and there has not been any modifications, amendments or other changes change in the terms of any the Ground Lease Leases since its recordation other than those that have been disclosed to Lender in writingtheir recordation;
(cd) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each the Ground Lease is Leases are not subject to any lien Liens superior to, or of equal priority with, the related applicable Security Instrument;
(de) Either (i) each Borrower’s interest in the Ground Lease itself provides and/or Leases are assignable upon notice to, but without the related consent of, Fee Owner has agreed thereunder and, in a writing for the benefit of Lenderevent that it is so assigned, its successors and assigns that such Ground Lease may not be amendedit is further assignable upon notice to, modified, canceled, surrendered or terminated but without the prior written need to obtain the consent of Lender and that any of, such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Lease;
(e) Except as set forth on Schedule XXIX hereof, each Ground Lease does not impose any restrictions on subleasing, provided the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunderFee Owner;
(f) Except as set forth on Schedule XXIX hereof, each The Ground Lease requires the related Leases require Fee Owner thereunder to give notice of any default by Mortgage Borrower to Lender prior and the Ground Lease Estoppel provides that notice of termination given under the Ground Leases are not effective against Lender unless a copy of the notice has been delivered to Fee Owner exercising its remedies thereunderLender in the manner described in the applicable Ground Lease;
(g) Lender is permitted the opportunity (including, where necessary, sufficient time to gain possession of the interest of Borrower under the Ground Leases) to cure any default under the Ground Leases, which is curable after the receipt of notice of any default before Fee Owner thereunder may terminate such Ground Lease;
(h) Each Ground Lease has a term (including any extension option periodsoptions) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); andDate;
(hi) Except as set forth on Schedule XXIX hereto, each The Ground Lease requires the related Estoppel provides that Fee Owner to thereunder shall enter into a new lease with Lender upon termination of such the applicable Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceeding;
(j) Under the terms of each Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the Properties, with Lender or a trustee appointed by Lender having the right to hold and disburse such Net Proceeds as the Restoration progresses, or to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon; and
(k) The Ground Leases do not impose restrictions on subletting.
Appears in 2 contracts
Samples: Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust)
Ground Lease Representations. (a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord thereunder, and, to the best of Borrower’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, and (iv) neither Mortgage Borrower nor the landlord under any each Ground Lease has commenced any action or given or received any notice for the purpose of terminating any such Ground Lease, (v) each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each Fee Owner under each Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;.
(b) Each The Ground Lease Leases or a memorandum thereof has have been duly recorded, each Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Security Instrument. There and there has not been any modifications, amendments or other changes change in the terms of any the Ground Lease Leases since its recordation other than those that have been disclosed to Lender in writingtheir recordation;
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each The Ground Lease is not subject to any lien superior to, or of equal priority with, the related Security Instrument;
(d) Either (i) each Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of Lender, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Lease;
(e) Except as set forth on Schedule XXIX hereof, each Ground Lease does not impose any restrictions on subleasing, provided the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunder;
(f) Except as set forth on Schedule XXIX hereof, each Ground Lease requires the related Fee Owner to give notice of any default by Mortgage Borrower to Lender prior to Fee Owner exercising its remedies thereunder;
(g) Each Ground Lease has Leases have a term (including any extension option periods) which extends not less than the earlier to occur of (i) twenty (20) years beyond the Maturity Date or (including any extensions thereof in accordance with ii) ten (10) years beyond the amortization term for the Loan;
(d) Under the terms of each Ground Lease and conditions the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of this Agreement)all or part of the Properties, with Mortgage Lender or a trustee appointed by Mortgage Lender having the right to hold and disburse such Net Proceeds as the Restoration progresses, or to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon; and
(he) Except as set forth The Ground Leases do not impose restrictions on Schedule XXIX hereto, each Ground Lease requires the related Fee Owner to enter into a new lease upon termination of such Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceedingsubletting.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Archstone Smith Operating Trust), Mezzanine Loan Agreement (Archstone Smith Operating Trust)
Ground Lease Representations. (a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord thereunder, and, to the best of Borrower’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, (iv) neither Mortgage Borrower nor the landlord under any Ground Lease has commenced any action or given or received any notice for the purpose of terminating any Ground Lease, (v) each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each Fee Owner under each Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;
(b) Each Ground Lease or a memorandum thereof has been duly recorded, each Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Security Instrument. There has not been any modifications, amendments or other changes in the terms of any Ground Lease since its recordation other than those that have been disclosed to Lender in writing;
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each Ground Lease is not subject to any lien superior to, or of equal priority with, the related Security Instrument;
(d) Either (i) each Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of Lender, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Lease;
(e) Except as set forth on Schedule XXIX hereof, each Ground Lease does not impose any restrictions on subleasing, provided the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunder;
(f) Except as set forth on Schedule XXIX hereof, each Ground Lease requires the related Fee Owner to give notice of any default by Mortgage Borrower to Lender prior to Fee Owner exercising its remedies thereunder;
(g) Each Ground Lease has a term (including any extension option periods) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); and
(h) Except as set forth on Schedule XXIX hereto, each Ground Lease requires the related Fee Owner to enter into a new lease upon termination of such Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceeding.
Appears in 2 contracts
Samples: Loan Agreement (Northstar Realty Finance Corp.), Loan Agreement (NorthStar Healthcare Income, Inc.)
Ground Lease Representations. As of the Funding Date:
(a) The Collateral Property that is subject to the Ground Lease and Ground Lessor is set forth on Schedule 6.15, and (i) Each the Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoeverwhatsoever except as disclosed on Schedule 6.15, (ii) there are no defaults under any the Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord any party thereunder, and, to the best of Borrower’s knowledge, and no event has occurred which but for the passage of time, or notice, or both would constitute a default under any the Ground Lease, (iii) all rents, additional rents and other sums due and payable under each the Ground Lease have been paid in full, and (iv) neither Mortgage Borrower Ground Lessor nor the landlord under any Ground Lease Lessee has commenced any action or given or received any notice for the purpose of terminating any the Ground Lease, (v) each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each Fee Owner under each Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;
(b) Each [Intentionally Deleted];
(c) The Ground Lease or a memorandum thereof has been duly recorded, each and the Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Security Instrumentapplicable Mortgage. There has not been any modifications, amendments or other changes change in the terms of any the Ground Lease since its recordation other than those that have been recordation, except as disclosed on Schedule 6.15. After giving effect to Lender in writingthe terms of the Ground Lease estoppel to be delivered pursuant to Section 5.02(a)(viii), the Ground Lease cannot be cancelled, terminated, surrendered or amended without the prior written consent of Administrative Agent;
(cd) Except for Permitted Encumbrances and as indicated The interests of Ground Lessee in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each Ground Lease is are not subject to any lien Liens (other than Permitted Liens) superior to, or of equal priority with, the related Security Instrument;
(d) Either (i) each Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of Lender, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Leaseapplicable Mortgage;
(e) Except as set forth on Schedule XXIX hereof, each Ground Lease does not impose any restrictions on subleasing, provided After giving effect to the tenant under terms of the Ground Lease remains primarily liable for estoppel to be delivered pursuant to Section 5.02(a)(ix) and providing any required notices, Ground Lessee’s interest in the Ground Lease may be assigned as security to a lender holding a mortgage on such tenant’s obligations interest upon notice to, but without the consent of, the lessor thereunder;
(f) Except as set forth on Schedule XXIX hereofAfter giving effect to the terms of the Ground Lease estoppel to be delivered pursuant to Section 5.02(a)(ix) and providing any required notices, each the Ground Lease requires the related Fee Owner lessor thereunder to give notice of any default by Mortgage the applicable Borrower to Administrative Agent and the Ground Lease further provides that notice of termination given under the Ground Lease is not effective against Administrative Agent or any Lender prior unless a copy of the notice has been delivered to Fee Owner exercising its remedies thereunderAdministrative Agent in the manner described in the Ground Lease;
(g) Each After giving effect to the terms of the Ground Lease estoppel to be delivered pursuant to Section 5.02(a)(ix) and providing any required notices, under the terms of the Ground Lease, Administrative Agent is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the applicable Borrower under the Ground Lease) to cure any default under the Ground Lease, which is curable after the receipt of notice of any default before the lessor thereunder may terminate the Ground Lease;
(h) After giving effect to the terms of the Ground Lease estoppel to be delivered pursuant to Section 5.02(a)(ix) and providing any required notices, the Ground Lease has (or, upon the exercise of existing renewal and/or extension rights will have) a term (including any extension option periods) which that extends not less than twenty (20) years beyond the Maturity Date Date;
(including any extensions thereof in accordance with i) After giving effect to the terms of the Ground Lease estoppel to be delivered pursuant to Section 5.02(a)(ix) and conditions of this Agreement); and
(h) Except as set forth on Schedule XXIX heretoproviding any required notices, each the Ground Lease requires the related Fee Owner Ground Lessor to enter into a new lease on similar terms and conditions upon termination of such the Ground Lease for any reason, including rejection of such the Ground Lease in a bankruptcy proceedingproceeding under any Debtor Relief Law; and
(j) After giving effect to the terms of the Ground Lease estoppel to be delivered pursuant to Section 5.02(a)(ix) and providing any required notices, under the terms of the Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the related Collateral Property, with Administrative Agent or a trustee appointed by Administrative Agent having the right to hold and disburse such Net Proceeds as the Restoration progresses, or to the payment of the Obligations; subject, however, with respect to the French Quarter Hotel Ground Lease, to the requirements of Section 14 of the French Quarter Hotel Ground Lease.
Appears in 1 contract
Samples: Credit Agreement (FelCor Lodging LP)
Ground Lease Representations. (a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoeverwhatsoever except by amendment previously provided to Lender, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord thereunder, and, to the best of Borrower’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, (iv) neither Mortgage Borrower nor the landlord under any Ground Lease has commenced any action or given or received any notice for the purpose of terminating any Ground Lease, (v) each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) to Borrower’s knowledge, each Fee Owner under each Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;
(b) Each Ground Lease or a memorandum thereof has been duly recorded, each Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Security Instrument. There Instrument and does not restrict the use of the related Individual Property by such lessee, its successors or assigns in a manner that would adversely affect the security provided by the related Security Instrument and there has not been any modifications, amendments or other changes in the terms of any Ground Lease since its recordation other than those that have been disclosed previously provided to Lender in writingLender;
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each Ground Lease is not subject to any lien superior to, or of equal priority with, the related Security Instrument;
(d) Either (i) each Each Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of Lender, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Leaseassigns;
(e) Except as set forth on Schedule XXIX hereof, Borrower’s interest in each Ground Lease does not impose any restrictions on subleasingis assignable upon notice to, provided but without the tenant under consent of, the Ground Lease remains primarily liable for such tenant’s obligations thereunderrelated Fee Owner and, in the event that it is so assigned, it is further assignable upon notice to, but without the need to obtain the consent of, the related Fee Owner;
(f) Except as set forth on Schedule XXIX hereof, each Each Ground Lease requires the related Fee Owner to give notice of any default by Mortgage Borrower to Lender prior and each Ground Lease further provides that notice of default or termination given under such Ground Lease is not effective against Lender unless a copy of the notice has been delivered to Lender in the manner described in such Ground Lease, and requires that the related Fee Owner exercising its remedies thereunderwill supply an estoppel certificate to Lender in form and substance acceptable to Lender;
(g) Lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of Borrower under each Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any default before the related Fee Owner may terminate such Ground Lease;
(h) Each Ground Lease has a term (including any extension option periods) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); and;
(hi) Except as set forth on Schedule XXIX hereto, each Each Ground Lease requires the related Fee Owner to enter into a new lease upon termination of such Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceeding;
(j) Under the terms of each Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the related Individual Property, with Lender or a trustee appointed by Lender having the right to hold and disburse such Net Proceeds as the Restoration progresses, or to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon; and
(k) Each Ground Lease does not impose restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender.
Appears in 1 contract
Ground Lease Representations. (a) The Loan Parties have delivered true and correct copies of each Acceptable Ground Lease as required by Section 4.11(r).
(ib) Each Acceptable Ground Lease is in full force and effect effect. The regular term of each Acceptable Ground Lease has commenced, is in effect, and has not been modified or amended is scheduled to expire as described in such Acceptable Ground Lease. There are no options to extend any Acceptable Ground Lease except as described in such Acceptable Ground Lease. Except as expressly set forth in any manner whatsoeverapplicable Acceptable Ground Lease, there are no rights to terminate any Acceptable Ground Lease other than the right of the landlord thereunder to terminate by reason of default or condemnation as set forth in such Acceptable Ground Lease. Except as expressly set forth in any Acceptable Ground Lease, neither Borrower nor the applicable Operating Lessee has any right to purchase any interest in any of the Real Property covered by such Acceptable Ground Lease.
(c) To each Loan Party’s knowledge, (iii) there are no defaults or terminating events under any Acceptable Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord any Loan Party or any ground lessor thereunder, and, to the best of Borrower’s knowledge, and (ii) no event has occurred which but for the passage of time, or notice, or both would constitute a default or terminating event under any Acceptable Ground Lease, Lease except for such defaults or terminating events specifically disclosed to Administrative Agent in writing.
(iiid) all All rents, additional rents rents, and other sums due and payable under each Acceptable Ground Lease have been paid in full, .
(ive) neither Mortgage Borrower No Loan Party nor the landlord ground lessor under any Acceptable Ground Lease has commenced any action or given or received any notice for the purpose of terminating any such Acceptable Ground Lease, (v) each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each Fee Owner under each Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;.
(bf) Each Acceptable Ground Lease or a memorandum thereof has been duly recorded, each . Each Acceptable Ground Lease permits the interest of the lessee thereunder applicable Loan Party to be encumbered by the related Security Instrument. There Collateral Documents or the necessary approval has not been any modifications, amendments or other changes in obtained from the terms of any Ground Lease since its recordation other than those that have been disclosed applicable ground lessor to Lender in writing;permit such encumbrance.
(cg) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage BorrowerEach Loan Party’s interest in each Acceptable Ground Lease is not subject to any lien Liens or encumbrances superior to, or of equal priority with, the related Security Instrument;
(d) Either (i) each Ground Lease itself provides and/or Mortgage other than the ground lessor’s related Fee Owner has agreed in a writing fee interest and Liens for the benefit of Lender, its successors taxes not yet due and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender payable and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as otherwise set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Lease;
(e) Except as set forth on Schedule XXIX hereof, each Ground Lease does not impose any restrictions on subleasing, provided the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunder;
(f) Except as set forth on Schedule XXIX hereof, each Ground Lease requires the related Fee Owner to give notice of any default by Mortgage Borrower to Lender prior to Fee Owner exercising its remedies thereunder;
(g) Each Ground Lease has a term (including any extension option periods) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); andapplicable Title Insurance Policy.
(h) Except as set forth on Schedule XXIX hereto, Each Loan Party’s interest in each Acceptable Ground Lease requires is assignable to Administrative Agent upon notice to, but without the related Fee Owner consent of, the ground lessor thereunder (or, if any such consent is required, then such consent has been obtained prior to enter into the date hereof). No Loan Party has assigned, transferred, or encumbered its interest in, to, or under any Acceptable Ground Lease, except in favor of Administrative Agent pursuant to a new lease upon termination of such Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceedingMortgage and the other Loan Documents.
Appears in 1 contract
Ground Lease Representations. (a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to Borrower or the best of Borrower’s knowledge, the applicable landlord thereunder, and, to the best of Borrower’s knowledge, and no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, and (iv) neither Mortgage Borrower nor the landlord Ground Lessor under any each Ground Lease has commenced any action or given or received any notice for the purpose of terminating any such Ground Lease, (v) each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each Fee Owner under each Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;
(b) Each Security Instrument which is secured by Borrower’s interest in a Ground Lease is also secured by the related fee interest in the applicable Property, and the fee interest is subject and subordinate of record to the applicable Security Instrument, and such Security Instrument does not by its terms provide that it will be subordinated to the Lien of any other mortgage or other Lien upon such fee interest, and upon the occurrence of an Event of Default, Lender has the right to foreclose or otherwise exercise its rights with respect to the fee interest within a commercially reasonable time;
(c) The Ground Leases or a memorandum thereof has have been duly recorded, each the Ground Lease permits Leases permit the interest of the lessee thereunder to be encumbered by the related applicable Security Instrument. There , and there has not been any modifications, amendments or other changes change in the terms of any the Ground Lease Leases since its recordation other than those that have been disclosed to Lender in writingtheir recordation. The Ground Leases cannot be cancelled, terminated, surrendered or amended without the prior written consent of Lender;
(cd) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each the Ground Lease is Leases are not subject to any lien Liens superior to, or of equal priority with, the related applicable Security Instrument;
(de) Either (i) each Borrower’s interest in the Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of LenderLeases are assignable upon notice to, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated but without the prior written consent of Lender and of, the lessor thereunder and, in the event that any such action without such consent it is not binding on Lenderso assigned, its successors or assigns or (ii) Mortgage Borrower it is not permittedfurther assignable upon notice to, but without the prior written need to obtain the consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereofof, to amend, modify, cancel or terminate each Ground Lease;
(e) Except as set forth on Schedule XXIX hereof, each Ground Lease does not impose any restrictions on subleasing, provided the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunderlessor;
(f) Except as set forth on Schedule XXIX hereof, each The Ground Lease requires Leases require the related Fee Owner lessor thereunder to give notice of any default by Mortgage Borrower to Lender prior and the Ground Leases further provide that notice of termination given under the Ground Leases are not effective against Lender unless a copy of the notice has been delivered to Fee Owner exercising its remedies thereunderLender in the manner described in the applicable Ground Lease;
(g) Each Lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of Borrower under the Ground Lease has Leases) to cure any default under the Ground Leases, which is curable after the receipt of notice of any default before the lessor thereunder may terminate such Ground Lease;
(h) The Ground Leases have a term (including any extension option periods) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); andDate;
(hi) Except as set forth on Schedule XXIX hereto, each The Ground Lease requires Leases require the related Fee Owner lessor to enter into a new lease upon termination of such the applicable Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceeding;
(j) Under the terms of each Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the Properties, with Lender or a trustee appointed by Lender having the right to hold and disburse such Net Proceeds as the Restoration progresses, or to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon; and
(k) The Ground Leases do not impose restrictions on subletting.
Appears in 1 contract
Ground Lease Representations. (a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of BorrowerPledgor’s knowledge, the applicable landlord thereunder, and, to the best of BorrowerPledgor’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, (iv) neither Mortgage Borrower nor the landlord under any each Ground Lease has commenced any action or given or received any notice for the purpose of terminating any such Ground Lease, (v) each no Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Mortgage Borrower has not consented to, any attempt to transfer any the related Fee Estate free and clear of the such Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each to the best of Pledgor’s knowledge, no Fee Owner under each any Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable no Fee Estate under each with respect to any Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;.
(b) Each The Ground Lease Leases or a memorandum thereof has have been duly recorded, each the Ground Lease Leases permits the interest of the lessee thereunder to be encumbered by the related applicable Security Instrument. There , and, except as disclosed to Lender in writing prior to the date hereof, there has not been any modifications, amendments or other changes change in the terms of any the Ground Lease Leases since its recordation other than those that have been disclosed to Lender in writingtheir recordation;
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each the Ground Lease is Leases are not subject to any lien Liens superior to, or of equal priority with, the related applicable Security Instrument;
(d) Either (i) each Mortgage Borrower’s interest in the Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of LenderLeases are assignable upon notice to, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated but without the prior written consent of Lender and of, the lessor thereunder and, in the event that any such action without such consent it is not binding on Lenderso assigned, its successors or assigns or (ii) Mortgage Borrower it is not permittedfurther assignable upon notice to, but without the prior written need to obtain the consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereofof, to amend, modify, cancel or terminate each Ground Leasesuch lessor;
(e) Except as set forth on Schedule XXIX hereof, each The Ground Lease does not impose any restrictions on subleasing, provided Leases require the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunder;
(f) Except as set forth on Schedule XXIX hereof, each Ground Lease requires the related Fee Owner lessor thereunder to give notice of any default by Mortgage Borrower to Lender prior and the Ground Leases further provide that notice of termination given under the Ground Leases are not effective against Lender unless a copy of the notice has been delivered to Fee Owner exercising its remedies thereunderLender in the manner described in the applicable Ground Lease;
(f) Lender is permitted to cure any default under the Ground Leases pursuant to the terms thereof, which is curable after the receipt of notice of any default before the lessor thereunder may terminate such Ground Lease;
(g) Each Ground Lease has a term (including any extension option periodsoptions) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); andDate;
(h) Except as set forth on Schedule XXIX hereto, each The Ground Lease requires Leases require the related Fee Owner lessor to enter into a new lease upon termination of such the applicable Ground Lease for any reason, including in the event of a rejection of such Ground Lease in a bankruptcy proceeding; and
(i) The Ground Leases do not impose restrictions on subletting.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Ground Lease Representations. Borrower represents and warrants that in connection with each Leasehold Property:
(a) (i) Each The Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (iib) there are no defaults under any the Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord thereunder, and, to the best of Borrower’s knowledge, and no event has occurred which but for the passage of time, or notice, or both would constitute a default under any the Ground Lease, (iiic) all rents, additional rents and other sums due and payable under each the Ground Lease have been paid in full, and (ivd) neither Mortgage Borrower nor the landlord under any the Ground Lease has commenced any action or given or received any notice for the purpose of terminating any the Ground Lease, (v) each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each Fee Owner under each Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;
(b) Each With respect to the Xxxxxxx Xxxxxxxx Plaza Property only, the Security Instrument which is secured by Borrower's interest in the related Ground Lease is also secured by the related fee interest in such Property, and the fee interest is subject and subordinate of record to the Security Instrument, and such Security Instrument does not by its terms provide that it will be subordinated to the Lien of any other mortgage or other Lien upon such fee interest, and upon the occurrence of an Event of Default, Lender has the right to foreclose or otherwise exercise its rights with respect to the fee interest within a commercially reasonable time;
(c) The Ground Lease and all amendments thereto or a memorandum thereof has have been duly recorded, each the Ground Lease permits the interest of the lessee thereunder to be encumbered by the related applicable Security Instrument. There , and there has not been any modifications, amendments or other changes change in the terms of any the Ground Lease Leases since its their recordation other than those that have been disclosed to Lender except as provided in writingsuch amendments;
(cd) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s 's interest in each the Ground Lease is not subject to any lien Liens superior to, or of equal priority with, the related applicable Security Instrument;
(d) Either (i) each Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of Lender, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Lease;
(e) Except as set forth on Schedule XXIX hereof, each Ground Lease does not impose any restrictions on subleasing, provided the tenant under Borrower's interest in the Ground Lease remains primarily liable for is assignable upon notice to, but without the consent of, the lessor thereunder and, in the event that it is so assigned, it is further assignable upon notice to, but without the need to obtain the consent of, such tenant’s obligations thereunderlessor;
(f) Except as set forth on Schedule XXIX hereof, each The Ground Lease requires the related Fee Owner lessor thereunder to give notice of any default by Mortgage Borrower to Lender prior and the Ground Lease further provides that notice of termination given under the Ground Lease is not effective against Lender unless a copy of the notice has been delivered to Fee Owner exercising its remedies thereunderLender in the manner described in the Ground Lease;
(g) Lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of Borrower under the Ground Lease) to cure any default under the Ground Lease, which is curable after the receipt of notice of any default before the lessor thereunder may terminate such Ground Lease;
(h) Each Ground Lease has a term (including any extension option periods) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); andDate;
(hi) Except as set forth on Schedule XXIX hereto, each The Ground Lease requires require the related Fee Owner lessor to enter into a new lease upon termination of such the applicable Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceeding;
(j) Under the terms of each Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the Properties, with Lender or a trustee appointed by Lender having the right to hold and disburse such Net Proceeds as the Restoration progresses, or to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon; and
(k) The Ground Lease does not impose restrictions on subletting.
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Ground Lease Representations. (a) (i) Each The Ground Lease is Leases are in full force and effect and has have not been modified or amended amended, except in any manner whatsoeverthe definition thereof, (ii) there are no existing defaults under any the Ground Lease Leases by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord lessor thereunder, and, to the best of Borrower’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any the Ground LeaseLeases, (iii) all rents, additional rents and other sums due and payable under each the Ground Lease Leases have been paid in full, (iv) neither Borrower nor Mortgage Borrower nor the landlord lessor under any Ground Lease Leases has commenced any action or given or received any notice for the purpose of terminating any Ground Lease, (v) each to Borrower’s knowledge, no Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower or Mortgage Borrower has not consented to, any attempt to sell or transfer any the applicable Fee Estate free and clear of the applicable Ground Lease under section Section 363(f) (or any similar provision) of the U.S. Bankruptcy Code, and (vi) each to Borrower’s knowledge, no Fee Owner under each any Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable no Fee Estate under each Ground Lease is not an asset being administered in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;
(b) Each The Ground Lease or a memorandum thereof has been duly recorded, each Ground Lease permits Leases permit the interest of the lessee thereunder to be encumbered by the related Security Instrument. There has not been any modifications, amendments or other changes in the terms of any Ground Lease since its recordation other than those that have been disclosed to Lender in writingMortgages;
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each the Ground Lease Leases is not subject to any lien Lien superior to, or of equal priority with, the related Security InstrumentMortgages;
(d) Either (i) each Mortgage Borrower’s interest in the Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of LenderLeases is assignable upon notice to, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated but without the prior written consent of Lender and of, the lessor thereunder and, in the event that any such action without such consent it is not binding on Lenderso assigned, its successors or assigns or (ii) Mortgage Borrower it is not permittedfurther assignable upon notice to, but without the prior written need to obtain the consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereofof, to amend, modify, cancel or terminate each Ground Leasesuch lessor;
(e) Except as set forth on Schedule XXIX hereof, each Each Ground Lease does not impose provides that any restrictions on subleasing, provided the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunder;
(f) Except as set forth on Schedule XXIX hereof, each Ground Lease requires the related Fee Owner to give notice right of any default by Mortgage Borrower to Lender prior to Fee Owner exercising its remedies thereunder;
(g) Each Ground Lease has a term (including any extension option periods) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); and
(h) Except as set forth on Schedule XXIX hereto, each Ground Lease requires the related Fee Owner to enter into a new lease upon termination of terminate such Ground Lease for any reasonshall not be effectively exercised by Mortgage Borrower, including rejection nor honored by the lessor unless such right of such Ground Lease termination shall be joined in a bankruptcy proceeding.and consented to by Mortgage Lender;
Appears in 1 contract
Samples: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Ground Lease Representations. Except as set forth on Schedule 6.38:
(a) Each Property that is subject to a Ground Lease, and the applicable Ground Lessor thereof and the title and dates with respect to any agreements, amendments or assignments comprising such Ground Lease, are set forth on Schedule 6.15, and (i) Each Borrower has delivered a true and correct copy of each Ground Lease to Administrative Agent prior to or simultaneously with its execution of the applicable Mortgage, (ii) each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, except as identified on Schedule 6.15, (iiiii) each Ground Lessee enjoys the quiet and peaceful possession of the property demised thereby, (iv) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord any party thereunder, and, to the best of Borrower’s knowledge, and no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iiiv) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, and (ivvi) neither Mortgage Borrower no Ground Lessee or any Affiliate nor the landlord applicable Ground Lessor under any each Ground Lease has commenced any action or given or received any notice for the purpose of terminating such Ground Lease, (vii) the consummation of the transactions contemplated hereby will not result in any breach of, or constitute a default under, any Ground Lease, (vviii) all actions which must be taken for Administrative Agent to have the rights of a leasehold mortgagee or mortgagee pursuant to each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy CodeLeases have been taken and completed, and (viix) each Fee Owner no Ground Lessee or Affiliate has granted any other leasehold mortgage or made any other assignment, pledge or hypothecation of its interest under each any of the Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceedingLeases;
(b) Each The Mortgage encumbering Hospitality Owner's interest in the Philadelphia Affiliate Ground Lease also encumbers the Philadelphia Affiliate Ground Lessor's fee interest in the Philadelphia Property and the fee interest is subject and subordinate of record to the applicable Mortgage, and such Mortgage does not by its terms provide that it will be subordinated to the Lien of any other mortgage or other Lien upon such fee interest, and upon the occurrence of an Event of Default, Administrative Agent has the right to foreclose or otherwise exercise its rights with respect to the fee interest within a commercially reasonable time;
(c) The Ground Leases or a memorandum thereof has have been duly recorded, each the Ground Lease permits Leases permit the interest of the lessee thereunder to be encumbered by the related Security Instrumentapplicable Mortgage. There Except as identified on Schedule 6.15, there has not been any modifications, amendments or other changes change in the terms of the Ground Leases since their recordation. Each of the Ground Leases, either by its express terms or after giving effect to any Ground Lease since its recordation other than those that have been disclosed to Lender estoppel and consent agreement described in writingSection 5.01(a)(xii)(C), cannot be cancelled, terminated, surrendered or amended without the prior written consent of Administrative Agent;
(cd) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each The Ground Lease is Leases are not subject to any lien Liens (other than Permitted Liens) superior to, or of equal priority with, the related Security Instrument;
(d) Either (i) each Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of Lender, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Leaseapplicable Mortgage;
(e) Except as set forth on Schedule XXIX hereof, The applicable Ground Lessee's interest in each Ground Lease does not impose any restrictions on subleasing, provided the tenant under of the Ground Lease remains primarily liable for Leases, either by the express terms of the Ground Leases or after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xii)(C), are assignable upon notice to, but without the consent of, the lessor thereunder and, in the event that it is so assigned, it is further assignable upon notice to, but without the need to obtain the consent of, such tenant’s obligations thereunderlessor;
(f) Except as set forth on Schedule XXIX hereofThe Ground Leases, each Ground Lease requires either by their express terms or after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xii)(C), require the related Fee Owner lessor thereunder to give notice of any default by Mortgage Borrower the applicable Ground Lessee to Administrative Agent; and the Ground Leases, either by their express terms or after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xii)(C), further provide that notice of termination given under the Ground Leases are not effective against Administrative Agent or any Lender prior unless a copy of the notice has been delivered to Fee Owner exercising its remedies thereunderAdministrative Agent or the Lenders in the manner described in the applicable Ground Lease;
(g) Each Either under the express terms of the Ground Lease has Leases or after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xii)(C), Administrative Agent is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the applicable Ground Lessee under the Ground Leases) to cure any default under the Ground Leases, which is curable after the receipt of notice of any default before the lessor thereunder may terminate such Ground Lease;
(h) The Ground Leases have a term (including any extension option periods) which extends not less than twenty twenty-two (2022) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); andDate;
(hi) Except as set forth on Schedule XXIX heretoAfter giving effect to any estoppel and consent agreement described in Section 5.01(a)(xii)(C), each the Ground Lease requires Leases, require the related Fee Owner lessor to enter into a new lease on similar terms and conditions upon termination of such the applicable Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceedingproceeding under any Debtor Relief Law;
(j) Under the terms of each Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the Collateral Properties, with Administrative Agent or a trustee appointed by Administrative Agent having the right to hold and disburse such Net Proceeds as the Restoration progresses, or, after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xii)(C), to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon; and
(k) Either under the express terms of the Ground Leases or after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xii)(C), the Ground Leases do not impose restrictions on subletting.
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Ground Lease Representations. (a) Except as expressly set forth in an estoppel certificate received by Lender from a Fee Owner:
(i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s actual knowledge, the applicable landlord thereunder, and, to the best of Borrower’s actual knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, (iv) neither Mortgage Borrower nor nor, to Borrower’s actual knowledge, the landlord under any each Ground Lease has commenced any action or given or received any notice for the purpose of terminating any such Ground Lease, (v) each to Borrower’s actual knowledge, no Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any the related Fee Estate free and clear of the such Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each to Borrower’s actual knowledge, no Fee Owner under each any Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable no Fee Estate under each with respect to any Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;.
(b) Each The Ground Lease Leases or a memorandum thereof has have been duly recorded, each the Ground Lease permits Leases do not prohibit the interest of the lessee thereunder to be encumbered by the related applicable Security Instrument. There , and to Borrower’s actual knowledge based on estoppel letters with respect to such Ground Lease, there has not been any modifications, amendments or other changes change in the such terms of any the Ground Lease Leases since its recordation other than those that have been disclosed to Lender in writing;their recordation; and
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each the Ground Lease is Leases are not subject to any lien Liens superior to, or of equal priority with, the related applicable Security Instrument;
(d) Either (i) each Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of Lender, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Lease;
(e) Except as set forth on Schedule XXIX hereof, each Ground Lease does not impose any restrictions on subleasing, provided the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunder;
(f) Except as set forth on Schedule XXIX hereof, each Ground Lease requires the related Fee Owner to give notice of any default by Mortgage Borrower to Lender prior to Fee Owner exercising its remedies thereunder;
(g) Each Ground Lease has a term (including any extension option periods) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); and
(h) Except as set forth on Schedule XXIX hereto, each Ground Lease requires the related Fee Owner to enter into a new lease upon termination of such Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceeding.
Appears in 1 contract
Samples: Loan Agreement (Spirit Finance Corp)
Ground Lease Representations. (a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord thereunder, and, to the best of Borrower’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, (iv) neither Mortgage Borrower nor the landlord under any Ground Lease has commenced any action or given or received any notice for the purpose of terminating any Ground Lease, (v) each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and neither Mortgage Borrower nor Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) to Borrower’s knowledge, each Fee Owner under each Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;
(b) Each Ground Lease or a memorandum thereof has been duly recorded, each Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Security Instrument. There Instrument and does not restrict the use of the related Individual Property by such lessee, its successors or assigns in a manner that would adversely affect the security provided by the related Security Instrument and there has not been any modifications, amendments or other changes in the terms of any Ground Lease since its recordation other than those that have been disclosed to Lender in writingrecordation;
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each Ground Lease is not subject to any lien superior to, or of equal priority with, the related Security Instrument;
(d) Either (i) each Each Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of Lender, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Leaseassigns;
(e) Except as set forth on Schedule XXIX hereofindicated in each such Ground Lease, each Ground Lease does not impose any place commercially unreasonable restrictions on subleasing, provided the tenant under the identity of Lender and Mortgage Borrower’s interest in each Ground Lease remains primarily liable for such tenant’s obligations thereunderis assignable upon notice to, but without the consent of, the related Fee Owner and, in the event that it is so assigned, it is further assignable upon notice to, but without the need to obtain the consent of, the related Fee Owner;
(f) Except as set forth on Schedule XXIX hereofTo the extent provided in each such Ground Lease, each Ground Lease requires the related Fee Owner to give notice of any default by Mortgage Borrower to Lender prior and each Ground Lease further provides that notice of default or termination given under such Ground Lease is not effective against Lender unless a copy of the notice has been delivered to Lender in the manner described in such Ground Lease, and requires that the related Fee Owner exercising its remedies thereunderwill supply an estoppel certificate to Lender in form and substance acceptable to Lender;
(g) To the extent provided in each such Ground Lease and subject to the rights of Mortgage Lender pursuant to the Mortgage Loan Documents and except as indicated in each such Ground Lease, Lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of Borrower under each Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any default before the related Fee Owner may terminate such Ground Lease;
(h) Each Ground Lease has a term (including any extension option periods) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); and;
(hi) Except as set forth on Schedule XXIX heretoindicated in each such Ground Lease, each Ground Lease requires the related Fee Owner to enter into a new lease upon termination of such Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceeding;
(j) Under the terms of each Ground Lease and the applicable Mortgage Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the related Individual Property, with Mortgage Lender having the right to hold and disburse such Net Proceeds as the Restoration progresses, or to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon; and
(k) To Borrower’s knowledge, each Ground Lease does not impose restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender.
Appears in 1 contract
Ground Lease Representations. (a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, except as described on Schedule IV hereof, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower and Mortgage Borrower’s knowledge, the applicable landlord thereunder, and, to the best of Borrower’s and Mortgage Borrower’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, and (iv) neither Mortgage Borrower nor the landlord under any each Ground Lease has commenced any action or given or received any notice for the purpose of terminating any such Ground Lease, (v) each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each Fee Owner under each Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;.
(b) Each Intentionally Deleted;
(c) The Ground Lease or a memorandum thereof has have been duly recorded, each the Ground Lease permits the equity interest of the lessee thereunder to be encumbered by the related Security Instrument. There Pledge Agreement, and there has not been any modifications, amendments or other changes change in the terms of any the Ground Lease since its their recordation other than those that have been disclosed to Lender in writing;
(c) Except for Permitted Encumbrances and except as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each Ground Lease is not subject to any lien superior to, or of equal priority with, the related Security Instrumentset forth on Schedule IV hereof;
(d) Either (i) each Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of Lender, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground LeaseIntentionally Deleted;
(e) Except as set forth on Schedule XXIX hereof, each Ground Lease does not impose any restrictions on subleasing, provided the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunderIntentionally Deleted;
(f) Except as set forth on Schedule XXIX hereof, each Ground Lease requires the related Fee Owner to give notice of any default by Mortgage Borrower to Lender prior to Fee Owner exercising its remedies thereunderIntentionally Deleted;
(g) Intentionally Deleted;
(h) Each Ground Lease has a term (including any extension option periods) which extends not less than twenty (20) years beyond the Maturity Date Date;
(including any extensions thereof in accordance with i) Intentionally Deleted;
(j) Under the terms of each Ground Lease and conditions the applicable Mortgage Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of this Agreement)all or part of the Properties or to the payment of the outstanding principal balance of the Mortgage Loan together with any accrued interest thereon; and
(hk) Except as set forth on Schedule XXIX hereto, each The Ground Lease requires the related Fee Owner to enter into a new lease upon termination of such Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceedingdoes not impose restrictions on subletting.
Appears in 1 contract
Ground Lease Representations. (a) (i) Each The Ground Lease is a valid and subsisting lease of the premises therein described and is in full force and effect and has not been modified or amended in any US_ACTIVE\123288794\V-8 manner whatsoever, (ii) no notice of default has been received or delivered by Borrower under the Ground Lease, there are no defaults under any the Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord thereunderany party thereto, and, to the best of Borrower’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any the Ground Lease, (iii) all rents, additional rents and other sums due and payable under each the Ground Lease have been paid in full, (iv) neither Mortgage Borrower nor any owner of the landlord Fee Estate under any the Ground Lease has commenced any action or given or received any notice for the purpose of terminating any the Ground Lease, Lease (v) each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, Borrower has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate the fee estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each Fee Owner under each Ground Lease Borrower is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding proceedings and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding, and (vii) Borrower has the right and authority under the Ground Lease to execute the Mortgage and to encumber the leasehold estate as provided therein;
(b) Each the Ground Lease or a memorandum thereof has been duly recorded, each and the Ground Lease permits the interest of Borrower as the lessee and thereunder to be encumbered by the related Security Instrument. There has not been any modifications, amendments or other changes in the terms of any Ground Lease since its recordation other than those that have been disclosed to Lender in writingMortgage;
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage BorrowerXxxxxxxx’s interest in each the Ground Lease is not subject to any lien Liens superior to, or of equal priority with, the related Security InstrumentMortgage;
(d) Either (i) each Xxxxxxxx’s interest in the Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of Lender, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth assignable to Agent in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Lease;
(e) Except as set forth on Schedule XXIX hereof, each Ground Lease does not impose any restrictions on subleasing, provided the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunder;
(f) Except as set forth on Schedule XXIX hereof, each Ground Lease requires the related Fee Owner to give notice of any default and it is further assignable thereafter by Mortgage Borrower to Lender prior to Fee Owner exercising its remedies thereunder;
(g) Each Ground Lease has a term (including any extension option periods) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof Agent in accordance with the terms and conditions of this Agreement)the Ground Lease; and
(he) Except as set forth on Schedule XXIX hereto, each The Ground Lease requires has a term which extends beyond the related Fee Owner to enter into a new lease upon termination of such Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceedingMaturity Date.
Appears in 1 contract
Samples: Term Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)
Ground Lease Representations. Except as set forth on Schedule 6.38:
(a) Each Property that is subject to a Ground Lease, and the applicable Ground Lessor thereof and the title and dates with respect to any agreements, amendments or assignments comprising such Ground Lease, are set forth on Schedule 6.15, and (i) Each Borrower has delivered a true and correct copy of each of Ground Lease to Administrative Agent prior to or simultaneously with its execution of the applicable Mortgage, (ii) each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, except as identified on Schedule 6.15, (iiiii) each Ground Lessee enjoys the quiet and peaceful possession of the property demised thereby, (iv) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord any party thereunder, and, to the best of Borrower’s knowledge, and no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iiiv) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, and (ivvi) neither Mortgage Borrower no Ground Lessee or any Affiliate nor the landlord applicable Ground Lessor under any each Ground Lease has commenced any action or given or received any notice for the purpose of terminating such Ground Lease, (vii) the consummation of the transactions contemplated hereby will not result in any breach of, or constitute a default under, any Ground Lease, (vviii) all actions which must be taken for Administrative Agent to have the rights of a leasehold mortgagee or mortgagee pursuant to each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy CodeLeases have been taken and completed, and (viix) each Fee Owner no Ground Lessee or Affiliate has granted any other leasehold mortgage or made any other assignment, pledge or hypothecation of its interest under each any of the Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceedingLeases;
(b) Each The Mortgage encumbering Owner’s interest in the Philadelphia Affiliate Ground Lease also encumbers the Philadelphia Affiliate Ground Lessor’s fee interest in the Philadelphia Property, and the fee interest is subject and subordinate of record to the applicable Mortgage, and such Mortgage does not by its terms provide that it will be subordinated to the Lien of any other mortgage or other Lien upon such fee interest, and upon the occurrence of an Event of Default, Administrative Agent has the right to foreclose or otherwise exercise its rights with respect to the fee interest within a commercially reasonable time; A/72912756.15
(c) The Ground Leases or a memorandum thereof has have been duly recorded, each the Ground Lease permits Leases permit the interest of the lessee thereunder to be encumbered by the related Security Instrumentapplicable Mortgage. There Except as identified on Schedule 6.15, there has not been any modifications, amendments or other changes change in the terms of the Ground Leases since their recordation. Each of the Ground Leases, either by its express terms or after giving effect to any Ground Lease since its recordation other than those that have been disclosed to Lender estoppel and consent agreement described in writingSection 5.01(a)(xiii)(C), cannot be cancelled, terminated, surrendered or amended without the prior written consent of Administrative Agent;
(cd) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each The Ground Lease is Leases are not subject to any lien Liens (other than Permitted Liens) superior to, or of equal priority with, the related Security Instrument;
(d) Either (i) each Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of Lender, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Leaseapplicable Mortgage;
(e) Except as set forth on Schedule XXIX hereof, The applicable Ground Lessee’s interest in each Ground Lease does not impose any restrictions on subleasing, provided the tenant under of the Ground Lease remains primarily liable for Leases, either by the express terms of the Ground Leases or after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xiii)(C), are assignable upon notice to, but without the consent of, the lessor thereunder and, in the event that it is so assigned, it is further assignable upon notice to, but without the need to obtain the consent of, such tenant’s obligations thereunderlessor;
(f) Except as set forth on Schedule XXIX hereofThe Ground Leases, each Ground Lease requires either by their express terms or after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xiii)(C), require the related Fee Owner lessor thereunder to give notice of any default by Mortgage Borrower the applicable Ground Lessee to Administrative Agent; and the Ground Leases, either by their express terms or after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xiii)(C), further provide that notice of termination given under the Ground Leases are not effective against Administrative Agent or any Lender prior unless a copy of the notice has been delivered to Fee Owner exercising its remedies thereunderAdministrative Agent or Lenders in the manner described in the applicable Ground Lease;
(g) Each Either under the express terms of the Ground Lease has Leases or after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xiii)(C), Administrative Agent is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the applicable Ground Lessee under the Ground Leases) to cure any default under the Ground Leases, which is curable after the receipt of notice of any default before the lessor thereunder may terminate such Ground Lease;
(h) The Ground Leases have a term (including any extension option periods) which extends not less than twenty twenty-five (2025) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); andDate;
(hi) Except as set forth on Schedule XXIX heretoAfter giving effect to any estoppel and consent agreement described in Section 5.01(a)(xiii)(C), each the Ground Lease requires Leases, require the related Fee Owner lessor to enter into a new lease on similar terms and conditions upon termination of such the applicable Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceedingproceeding under any Debtor Relief Law; A/72912756.15
(j) Under the terms of each Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the Collateral Properties, with Administrative Agent or a trustee appointed by Administrative Agent having the right to hold and disburse such Net Proceeds as the Restoration progresses, or, after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xiii)(C), to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon; and
(k) Either under the express terms of the Ground Leases or after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xiii)(C), the Ground Leases do not impose restrictions on subletting.
Appears in 1 contract
Ground Lease Representations. Except as set forth on Schedule 6.38:
(a) Each Property that is subject to a Ground Lease, and the applicable Ground Lessor thereof and the title and dates with respect to any agreements, amendments or assignments comprising such Ground Lease, are set forth on Schedule 6.15, and (i) Each Borrower has delivered a true and correct copy of each Ground Lease to Administrative Agent prior to or simultaneously with its execution of the applicable Mortgage, (ii) each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, except as identified on Schedule 6.15, (iiiii) each Ground Lessee enjoys the quiet and peaceful possession of the property demised thereby, (iv) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord any party thereunder, and, to the best of Borrower’s knowledge, and no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iiiv) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, and (ivvi) neither Mortgage Borrower no Ground Lessee or any Affiliate nor the landlord applicable Ground Lessor under any each Ground Lease has commenced any action or given or received any notice for the purpose of terminating such Ground Lease, (vii) the consummation of the transactions contemplated hereby will not result in any breach of, or constitute a default under, any Ground Lease, (vviii) all actions which must be taken for Administrative Agent to have the rights of a leasehold mortgagee or mortgagee pursuant to each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy CodeLeases have been taken and completed, and (viix) each Fee Owner no Ground Lessee or Affiliate has granted any other leasehold mortgage or made any other assignment, pledge or hypothecation of its interest under each any of the Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceedingLeases;
(b) Each The Mortgage encumbering (i) Hospitality Owner's interest in the Philadelphia Affiliate Ground Lease also encumbers the Philadelphia Affiliate Ground Lessor's fee interest in the Philadelphia Property and (ii) the Boca Owner's interest in the Boca Raton Affiliate Ground Lease also encumbers the Boca Raton Affiliate Ground Lessor's fee interest in the Boca Raton Property, and in each case, the fee interest is subject and subordinate of record to the applicable Mortgage, and such Mortgage does not by its terms provide that it will be subordinated to the Lien of any other mortgage or other Lien upon such fee interest, and upon the occurrence of an Event of Default, Administrative Agent has the right to foreclose or otherwise exercise its rights with respect to the fee interest within a commercially reasonable time;
(c) The Ground Leases or a memorandum thereof has have been duly recorded, each the Ground Lease permits Leases permit the interest of the lessee thereunder to be encumbered by the related Security Instrumentapplicable Mortgage. There Except as identified on Schedule 6.15, there has not been any modifications, amendments or other changes change in the terms of the Ground Leases since their recordation. Each of the Ground Leases, either by its express terms or after giving effect to any Ground Lease since its recordation other than those that have been disclosed to Lender estoppel and consent agreement described in writingSection 5.01(a)(xii)(C), cannot be cancelled, terminated, surrendered or amended without the prior written consent of Administrative Agent;
(cd) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each The Ground Lease is Leases are not subject to any lien Liens (other than Permitted Liens) superior to, or of equal priority with, the related Security Instrument;
(d) Either (i) each Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of Lender, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Leaseapplicable Mortgage;
(e) Except as set forth on Schedule XXIX hereof, The applicable Ground Lessee's interest in each Ground Lease does not impose any restrictions on subleasing, provided the tenant under of the Ground Lease remains primarily liable for Leases, either by the express terms of the Ground Leases or after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xii)(C), are assignable upon notice to, but without the consent of, the lessor thereunder and, in the event that it is so assigned, it is further assignable upon notice to, but without the need to obtain the consent of, such tenant’s obligations thereunderlessor;
(f) Except as set forth on Schedule XXIX hereofThe Ground Leases, each Ground Lease requires either by their express terms or after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xii)(C), require the related Fee Owner lessor thereunder to give notice of any default by Mortgage Borrower the applicable Ground Lessee to Administrative Agent; and the Ground Leases, either by their express terms or after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xii)(C), further provide that notice of termination given under the Ground Leases are not effective against Administrative Agent or any Lender prior unless a copy of the notice has been delivered to Fee Owner exercising its remedies thereunderAdministrative Agent or Lenders in the manner described in the applicable Ground Lease;
(g) Each Either under the express terms of the Ground Lease has Leases or after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xii)(C), Administrative Agent is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the applicable Ground Lessee under the Ground Leases) to cure any default under the Ground Leases, which is curable after the receipt of notice of any default before the lessor thereunder may terminate such Ground Lease;
(h) The Ground Leases have a term (including any extension option periods) which extends not less than twenty twenty-five (2025) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); andDate;
(hi) Except as set forth on Schedule XXIX heretoAfter giving effect to any estoppel and consent agreement described in Section 5.01(a)(xii)(C), each the Ground Lease requires Leases, require the related Fee Owner lessor to enter into a new lease on similar terms and conditions upon termination of such the applicable Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceedingproceeding under any Debtor Relief Law;
(j) Under the terms of each Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the Collateral Properties, with Administrative Agent or a trustee appointed by Administrative Agent having the right to hold and disburse such Net Proceeds as the Restoration progresses, or, after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xii)(C), to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon; and
(k) Either under the express terms of the Ground Leases or after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xii)(C), the Ground Leases do not impose restrictions on subletting.
Appears in 1 contract
Samples: Revolving Credit Agreement (FelCor Lodging Trust Inc)
Ground Lease Representations. (a) (i) Each The Ground Lease is Leases are in full force and effect and has have not been modified or amended amended, except as reflected in any manner whatsoeverthe definition thereof, (ii) there are no existing defaults under any the Ground Lease Leases by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord lessor thereunder, and, to the best of Borrower’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any the Ground LeaseLeases, (iii) all rents, additional rents and other sums due and payable under each the Ground Lease Leases have been paid in full, (iv) neither Borrower, Mortgage Borrower, Senior Mezzanine Borrower nor the landlord lessor under any Ground Lease Leases has commenced any action or given or received any notice for the purpose of terminating any Ground Lease, (v) each to Borrower’s knowledge, no Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower, Mortgage Borrower has or Senior Mezzanine Borrower have not consented to, any attempt to sell or transfer any the applicable Fee Estate free and clear of the applicable Ground Lease under section Section 363(f) (or any similar provision) of the U.S. Bankruptcy Code, and (vi) each to Borrower’s knowledge, no Fee Owner under each any Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable no Fee Estate under each Ground Lease is not an asset being administered in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;
(b) Each The Ground Lease or a memorandum thereof has been duly recorded, each Ground Lease permits Leases permit the interest of the lessee thereunder to be encumbered by the related Security Instrument. There has not been any modifications, amendments or other changes in the terms of any Ground Lease since its recordation other than those that have been disclosed to Lender in writingMortgages;
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each the Ground Lease Leases is not subject to any lien Lien superior to, or of equal priority with, the related Security InstrumentMortgages;
(d) Either (i) each Mortgage Borrower’s interest in the Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of LenderLeases is assignable upon notice to, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated but without the prior written consent of Lender and of, the lessor thereunder and, in the event that any such action without such consent it is not binding on Lenderso assigned, its successors or assigns or (ii) Mortgage Borrower it is not permittedfurther assignable upon notice to, but without the prior written need to obtain the consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereofof, to amend, modify, cancel or terminate each Ground Leasesuch lessor;
(e) Except as set forth on Schedule XXIX hereof, each Each Ground Lease does not impose provides that any restrictions on subleasing, provided the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunder;
(f) Except as set forth on Schedule XXIX hereof, each Ground Lease requires the related Fee Owner to give notice right of any default by Mortgage Borrower to Lender prior to Fee Owner exercising its remedies thereunder;
(g) Each Ground Lease has a term (including any extension option periods) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); and
(h) Except as set forth on Schedule XXIX hereto, each Ground Lease requires the related Fee Owner to enter into a new lease upon termination of terminate such Ground Lease for any reasonshall not be effectively exercised by Mortgage Borrower, including rejection nor honored by the lessor unless such right of such Ground Lease termination shall be joined in a bankruptcy proceeding.and consented to by Mortgage Lender;
Appears in 1 contract
Samples: Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Ground Lease Representations. Borrower represents and warrants that in connection with the Leasehold Property:
(a) (i) Each The Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (iib) there are no defaults under any the Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord thereunder, and, to the best of Borrower’s knowledge, and no event has occurred which but for the passage of time, or notice, or both would constitute a default under any the Ground Lease, (iiic) all rents, additional rents and other sums due and payable under each the Ground Lease have been paid in full, and (ivd) neither none of Borrower, Mortgage Borrower nor or the landlord under any the Ground Lease has commenced any action or given or received any notice for the purpose of terminating any Ground Lease, (v) each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each Fee Owner under each Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;Lease.
(b) Each The Ground Lease or a memorandum memoranda thereof has and all amendments thereto have been duly recorded, each the Ground Lease permits the interest of the lessee thereunder to be encumbered by the related applicable Security Instrument. There , and there has not been any modifications, amendments or other changes change in the terms of any the Ground Lease since its their recordation other than those that have been disclosed to Lender except as may be provided in writingrecorded amendments thereto;
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest interests in each the Ground Lease is are not subject to any lien superior to, or Liens other than the Lien of equal priority with, the related Security InstrumentMortgage Loan;
(d) Either (i) each the Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of Lenderis assignable upon notice and consent to lessor thereunder, its successors and assigns that however, such Ground Lease may consent consent shall not be amendedunreasonably withheld, modified, canceled, surrendered conditioned or terminated without delayed by the prior written consent of Lender and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Leaselessor;
(e) Except as set forth on Schedule XXIX hereof, each Ground Lease does not impose any restrictions on subleasing, provided the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunder;
(f) Except as set forth on Schedule XXIX hereof, each Ground Lease Leases requires the related Fee Owner lessor thereunder to give notice of any default by Mortgage Borrower to Mortgage Lender prior and the Ground Lease further provides that notice of termination given under the Ground Lease is not effective against Mortgage Lender or Lender unless a copy of such notice has been delivered to Fee Owner exercising its remedies thereunderMortgage Lender in the manner described in the Ground Lease;
(f) Lender is permitted a reasonable opportunity to cure any default under the Ground Lease, which is curable after the receipt of notice of any default before the lessor thereunder may terminate the Ground Lease;
(g) Each The Ground Lease has a term (including any extension option periods) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); anddate hereof;
(h) Except as set forth on Schedule XXIX hereto, each The Ground Lease requires the related Fee Owner lessor to enter into a new lease upon termination of such the Ground Lease for any reason, including rejection of such the Ground Lease in a bankruptcy proceeding; and
(i) Under the terms of the Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds, to the extent payable to Borrower, will be applied either to the Restoration of all or part of the Property, with Lender or a trustee appointed by Lender having the right to hold and disburse such Net Proceeds as the Restoration progresses, or to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon.
Appears in 1 contract
Ground Lease Representations. (a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s 's knowledge, the applicable landlord thereunder, and, to the best of Borrower’s 's knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, and (iv) neither Mortgage Borrower nor the landlord under any each Ground Lease has commenced any action or given or received any notice for the purpose of terminating any such Ground Lease, (v) each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each Fee Owner under each Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;.
(b) Each The Ground Lease Leases or a memorandum thereof has have been duly recorded, each the Ground Lease Leases permits the interest of the lessee thereunder to be encumbered by the related applicable Security Instrument. There , and there has not been any modifications, amendments or other changes change in the terms of any the Ground Lease Leases since its recordation other than those that have been disclosed to Lender in writingtheir recordation;
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s 's interest in each the Ground Lease is Leases are not subject to any lien Liens superior to, or of equal priority with, the related applicable Security Instrument;
(d) Either (i) each Borrower's interest in the Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of LenderLeases are assignable upon notice to, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated but without the prior written consent of Lender and of, the lessor thereunder and, in the event that any such action without such consent it is not binding on Lenderso assigned, its successors or assigns or (ii) Mortgage Borrower it is not permittedfurther assignable upon notice to, but without the prior written need to obtain the consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereofof, to amend, modify, cancel or terminate each Ground Leasesuch lessor;
(e) Except as set forth on Schedule XXIX hereof, each The Ground Lease does not impose any restrictions on subleasing, provided Leases require the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunder;
(f) Except as set forth on Schedule XXIX hereof, each Ground Lease requires the related Fee Owner lessor thereunder to give notice of any default by Mortgage Borrower to Lender prior and the Ground Leases further provide that notice of termination given under the Ground Leases are not effective against Lender unless a copy of the notice has been delivered to Fee Owner exercising its remedies thereunderLender in the manner described in the applicable Ground Lease;
(f) Lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of Borrower under the Ground Leases) to cure any default under the Ground Leases, which is curable after the receipt of notice of any default before the lessor thereunder may terminate such Ground Lease;
(g) Each Ground Lease has a term (including any extension option periods) which extends not less than twenty thirty-five (2035) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); andDate;
(h) Except as set forth on Schedule XXIX hereto, each The Ground Lease requires Leases require the related Fee Owner lessor to enter into a new lease upon termination of such the applicable Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceeding;
(i) Under the terms of each Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the Properties, with Lender or a trustee appointed by Lender having the right to hold and disburse such Net Proceeds as the Restoration progresses, or to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon; and
(j) The Ground Leases do not impose restrictions on subletting.
Appears in 1 contract
Ground Lease Representations. (a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, except as described on Schedule IV hereof, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord thereunder, and, to the best of Borrower’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, and (iv) neither Mortgage Borrower nor the landlord under any each Ground Lease has commenced any action or given or received any notice for the purpose of terminating any such Ground Lease, (v) each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each Fee Owner under each Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;.
(b) Each Intentionally Deleted;
(c) The Ground Lease or a memorandum thereof has have been duly recorded, each the Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Security Instrument. There applicable Mortgage, and there has not been any modifications, amendments or other changes change in the terms of any the Ground Lease since its their recordation other than those that have been disclosed to Lender in writingexcept as set forth on Schedule IV hereof;
(cd) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each the Ground Lease is are not subject to any lien Liens superior to, or of equal priority with, the related Security Instrument;
(d) Either (i) each Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of Lender, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Leaseapplicable Mortgage;
(e) Except as set forth on Schedule XXIX hereof, each Ground Lease does not impose any restrictions on subleasing, provided the tenant under Borrower’s interest in the Ground Lease remains primarily liable for are assignable upon notice to, but without the consent of, the lessor thereunder and, in the event that it is so assigned, it is further assignable upon notice to, but without the need to obtain the consent of, such tenant’s obligations thereunderlessor;
(f) Except as set forth on Schedule XXIX hereof, each The Ground Lease requires the related Fee Owner lessor thereunder to give notice of any default by Mortgage Borrower to Lender prior provided Borrower gives such lessor written notice of Lender’s address, and the Ground Lease further provide that any right of Borrower to Fee Owner exercising its remedies thereunderterminate the applicable Ground Lease shall not be effectively exercised by Borrower, nor honored by the lessor unless such right of termination shall be joined in and consented to by Lender;
(g) Lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of Borrower under the Ground Leases) to cure any default under the Ground Lease, which is curable after the receipt of notice of any default before the lessor thereunder may terminate such Ground Lease;
(h) Each Ground Lease has a term (including any extension option periods) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); andDate;
(hi) Except as set forth on Schedule XXIX hereto, each The Ground Lease requires the related Fee Owner lessor to enter into a new lease with any mortgagee upon termination of such the applicable Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceeding;
(j) Under the terms of each Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the Properties or to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon; and
(k) The Ground Lease does not impose restrictions on subletting.
Appears in 1 contract
Samples: Loan Agreement (Capital Lodging)
Ground Lease Representations. (a) (i) Each The Ground Lease is in full force and effect and has not been modified (other than the modifications described in the Ground Lease Estoppel) or amended (other than the modifications described in the Ground Lease Estoppel) in any manner whatsoever, (ii) there are no defaults under any the Ground Lease by Mortgage Borrower, or, to the best of Borrower’s actual knowledge, the applicable landlord thereunder, and, to the best of Borrower’s actual knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any Ground Lease, (iii) all rents, additional rents and other sums due and payable under each the Ground Lease have been paid in full, (iv) neither Mortgage Borrower nor the landlord under any the Ground Lease has commenced any action or given or received any notice for the purpose of terminating any the Ground Lease, (v) each the Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any the Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each to Borrower’s actual knowledge, the Fee Owner under each the Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each the Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;
(b) Each The Ground Lease or a memorandum thereof has been duly recorded, each the Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Security Instrument. There Instrument and does not restrict the use of the related Individual Property by such lessee, its successors or assigns in a manner that would adversely affect the security provided by the related Security Instrument and there has not been any modifications, amendments or other changes in the terms of any the Ground Lease since its recordation other than those that have been disclosed to Lender in writingrecordation;
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the The applicable Mortgage Borrower’s interest in each the Ground Lease is not subject to any lien superior to, or of equal priority with, the related Security InstrumentInstrument (other than the Permitted Encumbrances);
(d) Either (i) each The Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of Lender, its successors and assigns that such the Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Leaseassigns;
(e) Except as set forth on Schedule XXIX hereof, each The Ground Lease does not impose any place commercially unreasonable restrictions on subleasing, provided the tenant under identity of Lender and Borrower’s interest in the Ground Lease remains primarily liable for such tenant’s obligations thereunderis assignable upon notice to, but without the consent of, the Fee Owner and, in the event that it is so assigned, it is further assignable upon notice to, but without the need to obtain the consent of, the Fee Owner;
(f) Except as set forth on Schedule XXIX hereof, each The Ground Lease requires the related Fee Owner to give notice of any default by Mortgage Borrower to Lender prior and the Ground Lease further provides that notice of default or termination given under the Ground Lease is not effective against Lender unless a copy of the notice has been delivered to Lender in the manner described in the Ground Lease, and requires that the Fee Owner exercising its remedies thereunderwill supply an estoppel certificate containing such information as Lender may reasonably request;
(g) Each Lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of Borrower under each Ground Lease has a term (including Lease) to cure any extension option periods) default by Borrower under the Ground Lease, which extends not less than twenty (20) years beyond is curable after the Maturity Date (including receipt of notice of any extensions thereof in accordance with default before the terms and conditions of this Agreement); andFee Owner may terminate such Ground Lease;
(h) Except as set forth on Schedule XXIX hereto, each The Ground Lease requires the related Fee Owner to enter into a new lease upon termination of such Ground Lease for any reason, including and/or upon rejection of such Ground Lease in a bankruptcy proceeding;
(i) Under the terms of the Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the related Individual Property, with Lender having the right to hold and disburse such Net Proceeds as the Restoration progresses, or to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon; and
(j) To Borrower’s actual knowledge, the Ground Lease does not impose restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender.
Appears in 1 contract
Ground Lease Representations. (a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s 's knowledge, the applicable landlord thereunder, and, to the best of Borrower’s 's knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, (iv) neither Mortgage Borrower nor the landlord under any each Ground Lease has commenced any action or given or received any notice for the purpose of terminating any such Ground Lease, (v) each no Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to sell or transfer any the related Fee Estate free and clear of the such Ground Lease under section Section 363(f) (or any similar provision) of the Bankruptcy Code, and (vi) each to the best of Borrower's knowledge, no Fee Owner under each any Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable no Fee Estate under each with respect to any Ground Lease is not an asset being administered in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;.
(b) Each The Ground Lease does not by its terms provide that it will be subordinated to the Lien of any other mortgage or other Lien upon the related fee interest;
(c) The Ground Leases or a memorandum thereof has have been duly recorded, each the Ground Lease Leases permits the interest of the lessee thereunder to be encumbered by the related applicable Security Instrument. There , and there has not been any modifications, amendments or other changes change in the terms of any the Ground Lease Leases since its recordation other than those that have been disclosed to Lender in writingtheir recordation;
(cd) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s 's interest in each the Ground Lease is Leases are not subject to any lien Liens superior to, or of equal priority with, the related applicable Security Instrument;
(de) Either (i) each Borrower's interest in the Ground Lease itself provides and/or Leases are assignable upon notice to, but without the related consent of, Fee Owner has agreed thereunder and, in a writing for the benefit of Lenderevent that it is so assigned, its successors and assigns that such Ground Lease may not be amendedit is further assignable upon notice to, modified, canceled, surrendered or terminated but without the prior written need to obtain the consent of Lender and that any of, such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Lease;
(e) Except as set forth on Schedule XXIX hereof, each Ground Lease does not impose any restrictions on subleasing, provided the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunderFee Owner;
(f) Except as set forth on Schedule XXIX hereof, each The Ground Lease requires the related Leases require Fee Owner thereunder to give notice of any default by Mortgage Borrower to Lender prior and the Ground Lease Estoppel provides that notice of termination given under the Ground Leases are not effective against Lender unless a copy of the notice has been delivered to Fee Owner exercising its remedies thereunderLender in the manner described in the applicable Ground Lease;
(g) Lender is permitted the opportunity (including, where necessary, sufficient time to gain possession of the interest of Borrower under the Ground Leases) to cure any default under the Ground Leases, which is curable after the receipt of notice of any default before Fee Owner thereunder may terminate such Ground Lease;
(h) Each Ground Lease has a term (including any extension option periodsoptions) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); andDate;
(hi) Except as set forth on Schedule XXIX hereto, each The Ground Lease requires the related Estoppel provides that Fee Owner to thereunder shall enter into a new lease with Lender upon termination of such the applicable Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceeding;
(j) Under the terms of each Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the Properties, with Lender or a trustee appointed by Lender having the right to hold and disburse such Net Proceeds as the Restoration progresses, or to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon; and
(k) The Ground Leases do not impose restrictions on subletting.
Appears in 1 contract
Samples: Loan Agreement (U-Store-It Trust)
Ground Lease Representations. (a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord thereunder, and, to the best of Borrower’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, (iv) neither Mortgage Borrower nor the landlord under any Ground Lease has commenced any action or given or received any notice for the purpose of terminating any Ground Lease, (v) each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and neither Mortgage Borrower nor Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) to Borrower’s knowledge, each Fee Owner under each Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;
(b) Each Ground Lease or a memorandum thereof has been duly recorded, each Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Security Instrument. There Instrument and does not restrict the use of the related Individual Property by such lessee, its successors or assigns in a manner that would adversely affect the security provided by the related Security Instrument and there has not been any modifications, amendments or other changes in the terms of any Ground Lease since its recordation other than those that have been disclosed to Lender in writingrecordation;
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each Ground Lease is not subject to any lien superior to, or of equal priority with, the related Security Instrument;
(d) Either (i) each Each Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of Lender, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Leaseassigns;
(e) Except as set forth on Schedule XXIX hereofindicated in each such Ground Lease, each Ground Lease does not impose any place commercially unreasonable restrictions on subleasing, provided the tenant under the identity of Lender and Mortgage Borrower’s interest in each Ground Lease remains primarily liable for such tenant’s obligations thereunderis assignable upon notice to, but without the consent of, the related Fee Owner and, in the event that it is so assigned, it is further assignable upon notice to, but without the need to obtain the consent of, the related Fee Owner;
(f) Except as set forth on Schedule XXIX hereofTo the extent provided in each such Ground Lease, each Ground Lease requires the related Fee Owner to give notice of any default by Mortgage Borrower to Lender prior and each Ground Lease further provides that notice of default or termination given under such Ground Lease is not effective against Lender unless a copy of the notice has been delivered to Lender in the manner described in such Ground Lease, and requires that the related Fee Owner exercising its remedies thereunderwill supply an estoppel certificate to Lender in form and substance acceptable to Lender;
(g) To the extent provided in each such Ground Lease and subject to the rights of Mortgage Lender pursuant to the Mortgage Loan Documents and the rights of Mezzanine A Lender pursuant to the Mezzanine A Loan Documents and except as indicated in each such Ground Lease, Lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of Borrower under each Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any default before the related Fee Owner may terminate such Ground Lease;
(h) Each Ground Lease has a term (including any extension option periods) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); and;
(hi) Except as set forth on Schedule XXIX heretoindicated in each such Ground Lease, each Ground Lease requires the related Fee Owner to enter into a new lease upon termination of such Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceeding;
(j) Under the terms of each Ground Lease and the applicable Mortgage Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the related Individual Property, with Mortgage Lender having the right to hold and disburse such Net Proceeds as the Restoration progresses, or to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon; and
(k) To Borrower’s knowledge, each Ground Lease does not impose restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender.
Appears in 1 contract
Ground Lease Representations. (a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoeverwhatsoever except by amendment previously provided to Lender, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord thereunder, and, to the best of Borrower’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, (iv) neither Mortgage Borrower nor the landlord under any Ground Lease has commenced any action or given or received any notice for the purpose of terminating any Ground Lease, (v) each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) to Borrower’s knowledge, each Fee Owner under each Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;
(b) Each Ground Lease or a memorandum thereof has been duly recorded, each Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Security Instrument. There Instrument and does not restrict the use of the related Individual Property by such lessee, its successors or assigns in a manner that would adversely affect the security provided by the related Security Instrument and there has not been any modifications, amendments or other changes in the terms of any Ground Lease since its recordation other than those that have been disclosed previously provided to Lender in writingLender;
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each Ground Lease is not subject to any lien superior to, or of equal priority with, the related Security Instrument;
(d) Either (i) each Each Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of Lender, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Leaseassigns;
(e) Except as set forth on Schedule XXIX hereof, Borrower’s interest in each Ground Lease does not impose any restrictions on subleasingis assignable upon notice to, provided but without the tenant under consent of, the Ground Lease remains primarily liable for such tenant’s obligations thereunderrelated Fee Owner and, in the event that it is so assigned, it is further assignable upon notice to, but without the need to obtain the consent of, the related Fee Owner;
(f) Except as set forth on Schedule XXIX hereof, each Each Ground Lease requires the related Fee Owner to give notice of any default by Mortgage Borrower to Lender prior and each Ground Lease further provides that notice of default or termination given under such Ground Lease is not effective against Lender unless a copy of the notice has been delivered to Lender in the manner described in such Ground Lease, and requires that the related Fee Owner exercising its remedies thereunderwill supply an estoppel certificate to Lender in form and substance acceptable to Lender;
(g) Lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of Borrower under each Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any default before the related Fee Owner may terminate such Ground Lease;
(h) Each Ground Lease has a term (including any extension option periods) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); and;
(hi) Except as set forth on Schedule XXIX hereto, each Each Ground Lease requires the related Fee Owner to enter into a new lease upon termination of such Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceeding;
(j) Under the terms of each Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the related Individual Property, with Lender or a trustee appointed by Lender having the right to hold and disburse such Net Proceeds as the Restoration progresses, or to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon; and
(k) Each Ground Lease does not impose restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender.
Appears in 1 contract
Ground Lease Representations. (a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord thereunder, and, to the best of Borrower’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, (iv) neither Mortgage Borrower nor the landlord under any each Ground Lease has commenced any action or given or received any notice for the purpose of terminating any such Ground Lease, (v) each no Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any the related Fee Estate free and clear of the such Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each to the best of Borrower’s knowledge, no Fee Owner under each any Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable no Fee Estate under each with respect to any Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;.
(b) Each The Ground Lease Leases or a memorandum thereof has have been duly recorded, each the Ground Lease Leases permits the interest of the lessee thereunder to be encumbered by the related applicable Security Instrument. There , and, except as disclosed to Lender in writing prior to the date hereof, there has not been any modifications, amendments or other changes change in the terms of any the Ground Lease Leases since its recordation other than those that have been disclosed to Lender in writingtheir recordation;
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each the Ground Lease is Leases are not subject to any lien Liens superior to, or of equal priority with, the related applicable Security Instrument;
(d) Either (i) each Borrower’s interest in the Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of LenderLeases are assignable upon notice to, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated but without the prior written consent of Lender and of, the lessor thereunder and, in the event that any such action without such consent it is not binding on Lenderso assigned, its successors or assigns or (ii) Mortgage Borrower it is not permittedfurther assignable upon notice to, but without the prior written need to obtain the consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereofof, to amend, modify, cancel or terminate each Ground Leasesuch lessor;
(e) Except as set forth on Schedule XXIX hereof, each The Ground Lease does not impose any restrictions on subleasing, provided Leases require the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunder;
(f) Except as set forth on Schedule XXIX hereof, each Ground Lease requires the related Fee Owner lessor thereunder to give notice of any default by Mortgage Borrower to Lender prior and the Ground Leases further provide that notice of termination given under the Ground Leases are not effective against Lender unless a copy of the notice has been delivered to Fee Owner exercising its remedies thereunderLender in the manner described in the applicable Ground Lease;
(f) Lender is permitted to cure any default under the Ground Leases pursuant to the terms thereof, which is curable after the receipt of notice of any default before the lessor thereunder may terminate such Ground Lease;
(g) Each Ground Lease has a term (including any extension option periodsoptions) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); andDate;
(h) Except as set forth on Schedule XXIX hereto, each The Ground Lease requires Leases require the related Fee Owner lessor to enter into a new lease upon termination of such the applicable Ground Lease for any reason, including in the event of a rejection of such Ground Lease in a bankruptcy proceeding; and
(i) The Ground Leases do not impose restrictions on subletting.
Appears in 1 contract
Samples: Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Ground Lease Representations. (a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of BorrowerPledgor’s knowledge, the applicable landlord thereunder, and, to the best of BorrowerPledgor’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, (iv) neither Mortgage Borrower nor the landlord under any each Ground Lease has commenced any action or given or received any notice for the purpose of terminating any such Ground Lease, (v) each no Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Mortgage Borrower has not consented to, any attempt to transfer any the related Fee Estate free and clear of the such Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each to the best of Pledgor’s knowledge, no Fee Owner under each any Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable no Fee Estate under each with respect to any Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;.
(b) Each The Ground Lease Leases or a memorandum thereof has have been duly recorded, each the Ground Lease Leases permits the interest of the lessee thereunder to be encumbered by the related applicable Security Instrument. There , and, except as disclosed to Lender in writing prior to the Closing Date, there has not been any modifications, amendments or other changes change in the terms of any the Ground Lease Leases since its recordation other than those that have been disclosed to Lender in writingtheir recordation;
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each the Ground Lease is Leases are not subject to any lien Liens superior to, or of equal priority with, the related applicable Security Instrument;
(d) Either (i) each Mortgage Borrower’s interest in the Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of LenderLeases are assignable upon notice to, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated but without the prior written consent of Lender and of, the lessor thereunder and, in the event that any such action without such consent it is not binding on Lenderso assigned, its successors or assigns or (ii) Mortgage Borrower it is not permittedfurther assignable upon notice to, but without the prior written need to obtain the consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereofof, to amend, modify, cancel or terminate each Ground Leasesuch lessor;
(e) Except as set forth on Schedule XXIX hereof, each The Ground Lease does not impose any restrictions on subleasing, provided Leases require the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunder;
(f) Except as set forth on Schedule XXIX hereof, each Ground Lease requires the related Fee Owner lessor thereunder to give notice of any default by Mortgage Borrower to Lender prior and the Ground Leases further provide that notice of termination given under the Ground Leases are not effective against Lender unless a copy of the notice has been delivered to Fee Owner exercising its remedies thereunderLender in the manner described in the applicable Ground Lease;
(f) Lender is permitted to cure any default under the Ground Leases pursuant to the terms thereof, which is curable after the receipt of notice of any default before the lessor thereunder may terminate such Ground Lease;
(g) Each Ground Lease has a term (including any extension option periodsoptions) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); andDate;
(h) Except as set forth on Schedule XXIX hereto, each The Ground Lease requires Leases require the related Fee Owner lessor to enter into a new lease upon termination of such the applicable Ground Lease for any reason, including in the event of a rejection of such Ground Lease in a bankruptcy proceeding; and
(i) The Ground Leases do not impose restrictions on subletting.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Ground Lease Representations. (a) (i) Each The Ground Lease is Leases are in full force and effect and has have not been modified or amended amended, except as reflected in any manner whatsoeverthe definition thereof, (ii) there are no existing defaults under any the Ground Lease Leases by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord lessor thereunder, and, to the best of Borrower’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any the Ground LeaseLeases, (iii) all rents, additional rents and other sums due and payable under each the Ground Lease Leases have been paid in full, (iv) neither Mortgage Borrower nor the landlord lessor under any Ground Lease Leases has commenced any action or given or received any notice for the purpose of terminating any Ground Lease, (v) each to Borrower’s knowledge, no Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to sell or transfer any the applicable Fee Estate free and clear of the applicable Ground Lease under section Section 363(f) (or any similar provision) of the U.S. Bankruptcy Code, and (vi) each to Borrower’s knowledge, no Fee Owner under each any Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable no Fee Estate under each Ground Lease is not an asset being administered in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;
(b) Each The Ground Lease or a memorandum thereof has been duly recorded, each Ground Lease permits Leases permit the interest of the lessee thereunder to be encumbered by the related Security Instrument. There has not been any modifications, amendments or other changes in the terms of any Ground Lease since its recordation other than those that have been disclosed to Lender in writingMortgages;
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each the Ground Lease Leases is not subject to any lien Lien superior to, or of equal priority with, the related Security InstrumentMortgages;
(d) Either (i) each Borrower’s interest in the Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of LenderLeases is assignable upon notice to, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated but without the prior written consent of Lender and of, the lessor thereunder and, in the event that any such action without such consent it is not binding on Lenderso assigned, its successors or assigns or (ii) Mortgage Borrower it is not permittedfurther assignable upon notice to, but without the prior written need to obtain the consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereofof, to amend, modify, cancel or terminate each Ground Leasesuch lessor;
(e) Except as set forth on Schedule XXIX hereof, each Ground Lease does not impose any restrictions on subleasing, provided the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunder;
(f) Except as set forth on Schedule XXIX hereof, each Each Ground Lease requires the related Fee Owner lessor thereunder to give notice of any default by Mortgage Borrower to Lender prior provided Borrower gives such lessor written notice of Lender’s address, and each Ground Lease further provides that any right of Borrower to Fee Owner exercising its remedies thereunderterminate such Ground Lease shall not be effectively exercised by Borrower, nor honored by the lessor unless such right of termination shall be joined in and consented to by Lender;
(f) Lender is permitted an opportunity (including, where necessary, sufficient time to gain possession of the interest of Borrower under any Ground Lease) to cure any default under any Ground Lease, which is curable after the receipt of notice of any default before the lessor thereunder may terminate such Ground Lease;
(g) Each The Hotel Ground Lease has a term that extends fourteen (14) years beyond the Maturity Date. The Parking Ground Lease has a term (including any extension option periodswith extensions) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); andDate;
(h) Except as set forth on Schedule XXIX hereto, each The Hotel Ground Lease requires the related Fee Owner Hotel Ground Lessor to enter into a new lease (on substantially the same terms as the existing Hotel Ground Lease) with Lender upon termination of such the Hotel Ground Lease for any reason, including rejection of such the Ground Lease in a bankruptcy proceeding. The Parking Ground Lease requires the Parking Ground Lessor to enter into a new lease (on substantially the same terms as the existing Parking Ground Lease) with Lender if any default by Hilton Fort Worth Borrower under the Parking Ground Lease is not capable of being cured by Lender or if Fort Worth Borrower elects to terminate the Parking Ground Lease;
(i) Under the terms of each Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the applicable Individual Property or to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon in the manner, and subject to the provisions of, such Ground Lease;
(j) The Ground Leases do not impose restrictions on subletting that would be viewed as commercially unreasonable; and
(k) As of the Closing Date, Borrower has (i) invested the entire Lessee Investment (as defined in the Parking Ground Lease) required pursuant to Section 8 of the Parking Ground Lease and (ii) completed the work required in connection with the Lessee Investment pursuant to the terms of the Parking Ground Lease.
Appears in 1 contract
Ground Lease Representations. (a) (i) Each The Ground Lease is in full force and effect and has not been modified (other than the modifications described in the Ground Lease Estoppel) or amended (other than the modifications described in the Ground Lease Estoppel) in any manner whatsoever, (ii) there are no defaults under any the Ground Lease by Mortgage Borrower, or, to the best of Borrower’s actual knowledge, the applicable landlord thereunder, and, to the best of Borrower’s actual knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any Ground Lease, (iii) all rents, additional rents and other sums due and payable under each the Ground Lease have been paid in full, (iv) neither Mortgage Borrower nor the landlord under any the Ground Lease has commenced any action or given or received any notice for the purpose of terminating any the Ground Lease, (v) each the Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower Bxxxxxxx has not consented to, any attempt to transfer any the Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each to Borrower’s actual knowledge, the Fee Owner under each the Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each the Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;
(b) Each The Ground Lease or a memorandum thereof has been duly recorded, each the Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Security Instrument. There Instrument and does not restrict the use of the related Individual Property by such lessee, its successors or assigns in a manner that would adversely affect the security provided by the related Security Instrument and there has not been any modifications, amendments or other changes in the terms of any the Ground Lease since its recordation other than those that have been disclosed to Lender in writingrecordation;
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the The applicable Mortgage Borrower’s interest in each the Ground Lease is not subject to any lien superior to, or of equal priority with, the related Security InstrumentInstrument (other than the Permitted Encumbrances);
(d) Either (i) each The Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of LenderLxxxxx, its successors and assigns that such the Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Leaseassigns;
(e) Except as set forth on Schedule XXIX hereof, each The Ground Lease does not impose any place commercially unreasonable restrictions on subleasing, provided the tenant under identity of Lxxxxx and Bxxxxxxx’s interest in the Ground Lease remains primarily liable for such tenant’s obligations thereunderis assignable upon notice to, but without the consent of, the Fee Owner and, in the event that it is so assigned, it is further assignable upon notice to, but without the need to obtain the consent of, the Fee Owner;
(f) Except as set forth on Schedule XXIX hereof, each The Ground Lease requires the related Fee Owner to give notice of any default by Mortgage Borrower to Lender prior and the Ground Lease further provides that notice of default or termination given under the Ground Lease is not effective against Lender unless a copy of the notice has been delivered to Lender in the manner described in the Ground Lease, and requires that the Fee Owner exercising its remedies thereunderwill supply an estoppel certificate containing such information as Lender may reasonably request;
(g) Each Lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of Borrower under each Ground Lease has a term (including Lease) to cure any extension option periods) default by Borrower under the Ground Lease, which extends not less than twenty (20) years beyond is curable after the Maturity Date (including receipt of notice of any extensions thereof in accordance with default before the terms and conditions of this Agreement); andFee Owner may terminate such Ground Lease;
(h) Except as set forth on Schedule XXIX hereto, each The Ground Lease requires the related Fee Owner to enter into a new lease upon termination of such Ground Lease for any reason, including and/or upon rejection of such Ground Lease in a bankruptcy proceeding;
(i) Under the terms of the Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the related Individual Property, with Lender having the right to hold and disburse such Net Proceeds as the Restoration progresses, or to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon; and
(j) To Borrower’s actual knowledge, the Ground Lease does not impose restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender.
Appears in 1 contract
Samples: Loan Agreement (Istar Inc.)
Ground Lease Representations. 50
(a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord thereunder, and, to the best of Borrower’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, (iv) neither Mortgage Borrower nor the landlord under any each Ground Lease has commenced any action or given or received any notice for the purpose of terminating any such Ground Lease, (v) each no Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to sell or transfer any the related Fee Estate free and clear of the such Ground Lease under section Section 363(f) (or any similar provision) of the Bankruptcy Code, and (vi) each to the best of Borrower’s knowledge, no Fee Owner under each any Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable no Fee Estate under each with respect to any Ground Lease is not an asset being administered in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;.
(b) Each The Ground Lease does not by its terms provide that it will be subordinated to the Lien of any other mortgage or other Lien upon the related fee interest;
(c) The Ground Leases or a memorandum thereof has have been duly recorded, each the Ground Lease Leases permits the interest of the lessee thereunder to be encumbered by the related applicable Security Instrument. There , and there has not been any modifications, amendments or other changes change in the terms of any the Ground Lease Leases since its recordation other than those that have been disclosed to Lender in writingtheir recordation;
(cd) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each the Ground Lease is Leases are not subject to any lien Liens superior to, or of equal priority with, the related applicable Security Instrument;
(de) Either (i) each Borrower’s interest in the Ground Lease itself provides and/or Leases are assignable upon notice to, but without the related consent of, Fee Owner has agreed thereunder and, in a writing for the benefit of Lenderevent that it is so assigned, its successors and assigns that such Ground Lease may not be amendedit is further assignable upon notice to, modified, canceled, surrendered or terminated but without the prior written need to obtain the consent of Lender and that any of, such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Lease;
(e) Except as set forth on Schedule XXIX hereof, each Ground Lease does not impose any restrictions on subleasing, provided the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunderFee Owner;
(f) Except as set forth on Schedule XXIX hereof, each The Ground Lease requires the related Leases require Fee Owner thereunder to give notice of any default by Mortgage Borrower to Lender prior and the Ground Lease Estoppel provides that notice of termination given under the Ground Leases are not effective against Lender unless a copy of the notice has been delivered to Fee Owner exercising its remedies thereunderLender in the manner described in the applicable Ground Lease;
(g) Lender is permitted the opportunity (including, where necessary, sufficient time to gain possession of the interest of Borrower under the Ground Leases) to cure any default under the Ground Leases, which is curable after the receipt of notice of any default before Fee Owner thereunder may terminate such Ground Lease;
(h) Each Ground Lease has a term (including any extension option periodsoptions) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); andDate;
(hi) Except as set forth on Schedule XXIX hereto, each The Ground Lease requires the related Estoppel provides that Fee Owner to thereunder shall enter into a new lease with Lender upon termination of such the applicable Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceeding;
(j) Under the terms of each Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the Properties, with Lender or a trustee appointed by Lender having the right to hold and disburse such Net Proceeds as the Restoration progresses, or to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon; and
(k) The Ground Leases do not impose restrictions on subletting.
Appears in 1 contract
Samples: Loan Agreement (U-Store-It Trust)
Ground Lease Representations. (a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to Borrower or the best of Borrower’s knowledge, the applicable landlord thereunder, and, to the best of Borrower’s knowledge, and no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, and (iv) neither Mortgage Borrower nor the landlord Ground Lessor under any each Ground Lease has commenced any action or given or received any notice for the purpose of terminating any such Ground Lease, (v) each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each Fee Owner under each Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;
(b) Each Security Instrument which is secured by Borrower's interest in a Ground Lease is also secured by the related fee interest in the applicable Property, and the fee interest is subject and subordinate of record to the applicable Security Instrument, and such Security Instrument does not by its terms provide that it will be subordinated to the Lien of any other mortgage or other Lien upon such fee interest, and upon the occurrence of an Event of Default, Lender has the right to foreclose or otherwise exercise its rights with respect to the fee interest within a commercially reasonable time;
(c) The Ground Leases or a memorandum thereof has have been duly recorded, each the Ground Lease permits Leases permit the interest of the lessee thereunder to be encumbered by the related applicable Security Instrument. There , and there has not been any modifications, amendments or other changes change in the terms of any the Ground Lease Leases since its recordation other than those that have been disclosed to Lender in writingtheir recordation. The Ground Leases cannot be cancelled, terminated, surrendered or amended without the prior written consent of Lender;
(cd) Except for Permitted Encumbrances and as indicated Borrower's interest in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each Ground Lease is Leases are not subject to any lien Liens superior to, or of equal priority with, the related applicable Security Instrument;
(de) Either (i) each Borrower's interest in the Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of LenderLeases are assignable upon notice to, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated but without the prior written consent of Lender and of, the lessor thereunder and, in the event that any such action without such consent it is not binding on Lenderso assigned, its successors or assigns or (ii) Mortgage Borrower it is not permittedfurther assignable upon notice to, but without the prior written need to obtain the consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereofof, to amend, modify, cancel or terminate each Ground Lease;
(e) Except as set forth on Schedule XXIX hereof, each Ground Lease does not impose any restrictions on subleasing, provided the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunderlessor;
(f) Except as set forth on Schedule XXIX hereof, each The Ground Lease requires Leases require the related Fee Owner lessor thereunder to give notice of any default by Mortgage Borrower to Lender prior and the Ground Leases further provide that notice of termination given under the Ground Leases are not effective against Lender unless a copy of the notice has been delivered to Fee Owner exercising its remedies thereunderLender in the manner described in the applicable Ground Lease;
(g) Each Lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of Borrower under the Ground Lease has Leases) to cure any default under the Ground Leases, which is curable after the receipt of notice of any default before the lessor thereunder may terminate such Ground Lease;
(h) The Ground Leases have a term (including any extension option periods) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); andDate;
(hi) Except as set forth on Schedule XXIX hereto, each The Ground Lease requires Leases require the related Fee Owner lessor to enter into a new lease upon termination of such the applicable Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceeding;
(j) Under the terms of each Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the Properties, with Lender or a trustee appointed by Lender having the right to hold and disburse such Net Proceeds as the Restoration progresses, or to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon; and
(k) The Ground Leases do not impose restrictions on subletting.
Appears in 1 contract
Ground Lease Representations. (a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, effect.
(iib) there There are no defaults or terminating events under any Ground Lease by Mortgage Borrowerany Loan Party, or, to the best of Borrowereach Loan Party’s knowledge, the applicable landlord any ground lessor thereunder, and, to the best of Borrowereach Loan Party’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default or terminating event under any Ground Lease, Lease except for such defaults or terminating events specifically disclosed to Administrative Agent in writing as of the Closing Date or which could not reasonably be expected to cause a Material Property Event.
(iiic) all All rents, additional rents rents, and other sums due and payable under each Ground Lease have been paid in full, .
(ivd) neither Mortgage Borrower No Loan Party nor the landlord ground lessor under any Ground Lease has commenced any action or given or received any notice for the purpose of terminating any Ground Lease, (v) each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each Fee Owner under each Ground Lease is not subject which could reasonably be expected to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;cause a Material Property Event.
(be) Each Ground Lease or a memorandum thereof has been duly recorded, each . Each Ground Lease permits the interest of the lessee thereunder applicable Loan Party to be encumbered by the related Security Instrument. There has not been any modifications, amendments or other changes in the terms of any Ground Lease since its recordation other than those that have been disclosed to Lender in writing;a mortgage.
(cf) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage BorrowerEach Loan Party’s interest in each Ground Lease is not subject to any lien Liens or encumbrances superior to, or of equal priority with, the related Security Instrument;
(d) Either (i) each Ground Lease itself provides and/or Mortgage other than the ground lessor’s related Fee Owner has agreed in a writing fee interest and Liens for the benefit of Lender, its successors taxes not yet due and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender payable and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as otherwise set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Lease;
(e) Except as set forth on Schedule XXIX hereof, each Ground Lease does not impose any restrictions on subleasing, provided the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunder;
(f) Except as set forth on Schedule XXIX hereof, each Ground Lease requires the related Fee Owner to give notice of any default by Mortgage Borrower to Lender prior to Fee Owner exercising its remedies thereunder;Title Insurance.
(g) Each Ground Lease has a term (including any extension option periods) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof Loan Party’s interest in accordance with the terms and conditions of this Agreement); and
(h) Except as set forth on Schedule XXIX hereto, each Ground Lease requires is assignable to Administrative Agent upon notice to, but without the related Fee Owner consent of, the ground lessor thereunder (or, if any such consent is required, it has been obtained prior to enter into the date hereof) except to the extent non-assignability could not reasonably be expected to cause a new lease upon termination of such Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceedingMaterial Property Event.
Appears in 1 contract
Ground Lease Representations. Except as set forth on Schedule 6.38:
(a) Each Collateral Property that is subject to a Ground Lease, and the applicable Ground Lessor thereof and the title and dates with respect to any agreements, amendments or assignments comprising such Ground Lease, are set forth on Schedule 6.15, and (i) Each Borrower has delivered a true and correct copy of each Ground Lease to Administrative Agent prior to or simultaneously with its execution of the applicable Mortgage, (ii) each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, except as identified on Schedule 6.15, (iiiii) each Ground Lessee enjoys the quiet and peaceful possession of the property demised thereby, (iv) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord any party thereunder, and, to the best of Borrower’s Borrowers’ knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iiiv) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, and (ivvi) neither Mortgage Borrower no Ground Lessee or any Affiliate nor the landlord applicable Ground Lessor under any each Ground Lease has commenced any action or given or received any notice for the purpose of terminating such Ground Lease, (vii) the consummation of the transactions contemplated hereby will not result in any breach of, or constitute a default under, any Ground Lease, (vviii) all actions which must be taken for Administrative Agent to have the rights of a leasehold mortgagee or mortgagee pursuant to each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy CodeLeases have been taken and completed, and (viix) each Fee Owner no Ground Lessee or Affiliate has granted any other leasehold mortgage or made any other assignment, pledge or hypothecation of its interest under each any of the Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceedingLeases;
(b) Each The Ground Lease Leases or a memorandum thereof has have been duly recorded, each the Ground Lease permits Leases permit the interest of the lessee thereunder to be encumbered by the related Security Instrumentapplicable Mortgage. There Except as identified on Schedule 6.15, there has not been any modifications, amendments or other changes change in the terms of any the Ground Leases since their recordation. Each of the Ground Leases (except for the Vinoy Hotel Ground Lease since and the Vinoy Golf Course Ground Lease), either by its recordation other than those that have been disclosed express terms or after giving effect to Lender any estoppel and consent agreement described in writingSection 5.01(a)(xii)(C), cannot be canceled, terminated, surrendered or amended without the prior written consent of Administrative Agent;
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each The Ground Lease is Leases are not subject to any lien Liens (other than Permitted Liens) superior to, or of equal priority with, the related Security Instrumentapplicable Mortgage;
(d) Either (i) The applicable Ground Lessee’s interest in each of the Ground Leases, either by the express terms of the Ground Leases or after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xii)(C), are assignable upon notice to, but without the consent of, the lessor thereunder and, in the event that it is so assigned, it is further assignable upon notice to, but without the need to obtain the consent of, such lessor; provided however, in the case of the Vinoy Hotel Ground Lease itself provides and/or and the related Fee Owner has agreed Vinoy Golf Course Ground Lease, such assignment (without consent) may only be made in a writing for connection with an exercise of remedies by the benefit of Lender, its successors Administrative Agent and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as otherwise set forth in accordance with the terms applicable estoppel and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Leaseconsent agreement;
(e) Except as set forth on Schedule XXIX hereofThe Ground Leases, each Ground Lease does not impose either by their express terms or after giving effect to any restrictions on subleasingestoppel and consent agreement described in Section 5.01(a)(xii)(C), provided require the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunder;
(f) Except as set forth on Schedule XXIX hereof, each Ground Lease requires the related Fee Owner lessor thereunder to give notice of any default by Mortgage Borrower the applicable Ground Lessee to Administrative Agent; and the Ground Leases, either by their express terms or after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xii)(C), further provide that notice of termination given under the Ground Leases are not effective against Administrative Agent or any Lender prior unless a copy of the notice has been delivered to Fee Owner exercising its remedies thereunderAdministrative Agent or the Lenders in the manner described in the applicable Ground Lease;
(f) Either under the express terms of the Ground Leases or after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xii)(C), Administrative Agent is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the applicable Ground Lessee under the Ground Leases) to cure any default under the Ground Leases, which is curable after the receipt of notice of any default before the lessor thereunder may terminate such Ground Lease;
(g) Each The Ground Lease has Leases have a term (including any extension option periods) which extends not less than twenty twenty-five (2025) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); andDate;
(h) Except as set forth on Schedule XXIX heretoAfter giving effect to any estoppel and consent agreement described in Section 5.01(a)(xii)(C), each the Ground Lease requires Leases, require the related Fee Owner lessor to enter into a new lease on similar terms and conditions upon termination of such the applicable Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceedingproceeding under any Debtor Relief Law;
(i) Under the terms of each Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the Collateral Properties, with Administrative Agent or a trustee appointed by Administrative Agent having the right to hold and disburse such Net Proceeds as the Restoration progresses, or, after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xii)(C), to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon; and
(j) Either under the express terms of the Ground Leases or after giving effect to any estoppel and consent agreement described in Section 5.01(a)(xii)(C), the Ground Leases do not impose restrictions on subletting.
Appears in 1 contract
Samples: Revolving Credit Agreement (FelCor Lodging Trust Inc)
Ground Lease Representations. Except as expressly set forth in an estoppel certificate received by Lender from a Fee Owner:
(a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s actual knowledge, the applicable landlord thereunder, and, to the best of Borrower’s actual knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, (iv) neither Mortgage Borrower nor nor, to Borrower’s actual knowledge, the landlord under any each Ground Lease has commenced any action or given or received any notice for the purpose of terminating any such Ground Lease, (v) each to Borrower’s actual knowledge, no Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any the related Fee Estate free and clear of the such Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each to Borrower’s actual knowledge, no Fee Owner under each any Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable no Fee Estate under each with respect to any Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;.
(b) Each The Ground Lease Leases or a memorandum thereof has have been duly recorded, each the Ground Lease permits Leases do not prohibit the interest of the lessee thereunder to be encumbered by the related applicable Security Instrument. There , and to Borrower’s actual knowledge based on estoppel letters with respect to such Ground Lease, there has not been any modifications, amendments or other changes change in the such terms of any the Ground Lease Leases since its recordation other than those that have been disclosed to Lender in writing;their recordation; and
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each the Ground Lease is Leases are not subject to any lien Liens superior to, or of equal priority with, the related applicable Security Instrument;
(d) Either (i) each Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of Lender, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without the prior written consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Lease;
(e) Except as set forth on Schedule XXIX hereof, each Ground Lease does not impose any restrictions on subleasing, provided the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunder;
(f) Except as set forth on Schedule XXIX hereof, each Ground Lease requires the related Fee Owner to give notice of any default by Mortgage Borrower to Lender prior to Fee Owner exercising its remedies thereunder;
(g) Each Ground Lease has a term (including any extension option periods) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); and
(h) Except as set forth on Schedule XXIX hereto, each Ground Lease requires the related Fee Owner to enter into a new lease upon termination of such Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceeding.
Appears in 1 contract
Samples: Loan Agreement (Spirit Finance Corp)
Ground Lease Representations. (a) Each Collateral Property that is subject to a Ground Lease, and, other than with respect to the Sheraton Burlington Parking Lease, the applicable Fee Owner thereof, is set forth on Schedule 6.15, and (i) Each each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord any party thereunder, and, to the best of Borrower’s knowledge, and no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, (iv) neither Mortgage Borrower nor none of Owner, applicable Fee Owner, or the landlord Ground Lessor under any Ground Lease the Sheraton Burlington Parking Lease, has commenced any action or given or received any notice for the purpose of terminating any such Ground Lease, Lease and (v) the certificate delivered pursuant to Section 5.1(a)(xxi)contains attached thereto true, correct and complete copies of each Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any Fee Estate free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code, Leases and (vi) each Fee Owner under each Ground Lease is not subject to any voluntary all modifications or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable Fee Estate under each Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceedingamendments thereto;
(b) Each Other than with respect to the Sheraton Burlington Parking Lease, each Mortgage which is secured by Owner’s interest in a Ground Lease is also secured by the related Fee Owner’s interest in the applicable Collateral Property, and the fee interest is subject and subordinate of record to the Lien of the applicable Mortgage, and such Mortgage does not by its terms provide that it will be subordinated to the Lien of any other mortgage or other Lien upon such fee interest, and upon the occurrence of an Event of Default, Administrative Agent has the right to foreclose or otherwise exercise its rights with respect to the Fee Owner’s fee simple interest;
(c) The Ground Leases or a memorandum thereof has have been duly recorded, each the Ground Lease permits Leases permit the interest of the lessee thereunder to be encumbered by the related Security Instrumentapplicable Mortgage. There has not been any modifications, amendments or other changes change in the terms of any the Ground Lease Leases since its recordation other than those that have been disclosed to Lender in writingtheir recordation. The Ground Leases cannot be cancelled, terminated, surrendered or amended without the prior written consent of Administrative Agent;
(cd) Except for Permitted Encumbrances The applicable interests of Owner and as indicated the applicable Fee Owners in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each Ground Lease is Leases are not subject to any lien Liens (other than Permitted Liens and statutory landlord liens, if applicable) superior to, or of equal priority with, the related Security Instrument;
(d) Either (i) applicable Mortgage; provided, however, that the Fee Owners, to the extent permitted by Law, each Ground Lease itself provides and/or hereby subordinates the related Fee Owner has agreed in a writing for the benefit Lien of Lender, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated without the prior written consent of Lender and that any such action without such consent is not binding on Lender, its successors or assigns or (ii) Mortgage Borrower is not permitted, without statutory landlord lien to the prior written consent Lien of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereof, to amend, modify, cancel or terminate each Ground Leaseapplicable Mortgage;
(e) Except as The applicable Owner’s interest in the Ground Leases (other than with respect to Reciprocal Right of Refusal set forth on Schedule XXIX hereofin Section 7 of the Sheraton Burlington Parking Lease) are assignable upon notice to, each Ground Lease does not impose any restrictions on subleasingbut without the consent of, provided the tenant under lessor thereunder and, in the Ground Lease remains primarily liable for event that it is so assigned, it is further assignable upon notice to, but without the need to obtain the consent of, such tenant’s obligations thereunderlessor;
(f) Except as set forth on Schedule XXIX hereof, each The Ground Lease requires Leases require the related Fee Owner lessor thereunder to give notice of any default by Mortgage the applicable Borrower to Administrative Agent and the Ground Leases further provide that notice of termination given under the Ground Leases are not effective against Administrative Agent or any Lender prior unless a copy of the notice has been delivered to Fee Owner exercising its remedies thereunderAdministrative Agent or Lenders in the manner described in the applicable Ground Lease;
(g) Under the terms of the Ground Leases, Administrative Agent is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the applicable Borrower under the Ground Leases) to cure any default under the Ground Leases, which is curable after the receipt of notice of any default before the lessor thereunder may terminate such Ground Lease;
(h) Each Ground Lease (other than the Sheraton Burlington Parking Lease) has a term (including any extension option periods) which extends not less than twenty to at least the lesser of (20x) fifty (50) years beyond the Maturity Date Date, and (including any extensions thereof in accordance with y) the terms and conditions maximum lease term which would not subject the entering into or modification of this Agreementsuch Ground Lease to real property transfer tax (as determined based on the applicable laws of the applicable jurisdiction); andprovided, however, that the Ground Leases shall in no event have a term which is less than fifteen (15) years beyond the Maturity Date;
(hi) Except as set forth on Schedule XXIX hereto, each The Ground Lease requires Leases require the related Fee Owner lessor to enter into a new lease on similar terms and conditions upon termination of such the applicable Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceedingproceeding under any Debtor Relief Law;
(j) Under the terms of each Ground Lease and the applicable Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the Collateral Properties, with Administrative Agent or a trustee appointed by Administrative Agent having the right to hold and disburse such Net Proceeds as the Restoration progresses, or to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon; and
(k) The Ground Leases do not impose restrictions on subletting.
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Ground Lease Representations. (a) (i) Each Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, (ii) there are no defaults under any Ground Lease by Mortgage Borrower, or, to the best of Borrower’s knowledge, the applicable landlord thereunder, and, to the best of Borrower’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under any such Ground Lease, (iii) all rents, additional rents and other sums due and payable under each Ground Lease have been paid in full, (iv) neither Mortgage Borrower nor the landlord under any each Ground Lease has commenced any action or given or received any notice for the purpose of terminating any such Ground Lease, (v) each no Fee Owner, as debtor in possession or by a trustee for such Fee Owner, has not given any notice of, and Borrower has not consented to, any attempt to transfer any the related Fee Estate free and clear of the such Ground Lease under section 363(f) of the Bankruptcy Code, and (vi) each to the best of Borrower’s knowledge, no Fee Owner under each any Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the applicable no Fee Estate under each with respect to any Ground Lease is not an asset in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;.
(b) Each The Ground Lease Leases or a memorandum thereof has have been duly recorded, each the Ground Lease Leases permits the interest of the lessee thereunder to be encumbered by the related applicable Security Instrument. There , and, except as disclosed to Lender in writing prior to the Closing Date, there has not been any modifications, amendments or other changes change in the terms of any the Ground Lease Leases since its recordation other than those that have been disclosed to Lender in writingtheir recordation;
(c) Except for Permitted Encumbrances and as indicated in the related Title Insurance Policy, the applicable Mortgage Borrower’s interest in each the Ground Lease is Leases are not subject to any lien Liens superior to, or of equal priority with, the related applicable Security Instrument;
(d) Either (i) each Borrower’s interest in the Ground Lease itself provides and/or the related Fee Owner has agreed in a writing for the benefit of LenderLeases are assignable upon notice to, its successors and assigns that such Ground Lease may not be amended, modified, canceled, surrendered or terminated but without the prior written consent of Lender and of, the lessor thereunder and, in the event that any such action without such consent it is not binding on Lenderso assigned, its successors or assigns or (ii) Mortgage Borrower it is not permittedfurther assignable upon notice to, but without the prior written need to obtain the consent of Lender as set forth in accordance with the terms and conditions of Section 4.23 hereofof, to amend, modify, cancel or terminate each Ground Leasesuch lessor;
(e) Except as set forth on Schedule XXIX hereof, each The Ground Lease does not impose any restrictions on subleasing, provided Leases require the tenant under the Ground Lease remains primarily liable for such tenant’s obligations thereunder;
(f) Except as set forth on Schedule XXIX hereof, each Ground Lease requires the related Fee Owner lessor thereunder to give notice of any default by Mortgage Borrower to Lender prior and the Ground Leases further provide that notice of termination given under the Ground Leases are not effective against Lender unless a copy of the notice has been delivered to Fee Owner exercising its remedies thereunderLender in the manner described in the applicable Ground Lease;
(f) Lender is permitted to cure any default under the Ground Leases pursuant to the terms thereof, which is curable after the receipt of notice of any default before the lessor thereunder may terminate such Ground Lease;
(g) Each Ground Lease has a term (including any extension option periodsoptions) which extends not less than twenty (20) years beyond the Maturity Date (including any extensions thereof in accordance with the terms and conditions of this Agreement); andDate;
(h) Except as set forth on Schedule XXIX hereto, each The Ground Lease requires Leases require the related Fee Owner lessor to enter into a new lease upon termination of such the applicable Ground Lease for any reason, including in the event of a rejection of such Ground Lease in a bankruptcy proceeding; and
(i) The Ground Leases do not impose restrictions on subletting.
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Samples: Loan Agreement (KBS Real Estate Investment Trust, Inc.)
