Ground Lease. (a) Borrower shall not permit any Leasehold Borrower, without Lender’s prior written consent, to fail to exercise any option or right to renew or extend the term of the applicable Ground Lease in accordance with the terms of such Ground Lease, and shall give immediate notice to Lender thereof and shall execute, acknowledge, deliver and record any document requested by Lender to evidence the Lien of the Mortgage on such extended or renewed lease term. (b) Borrower shall not permit any Leasehold Borrower to waive, excuse, or in any way release or discharge the ground lessor under any Ground Lease of or from such ground lessor’s material obligations, covenants and/or conditions under the related Ground Lease without the prior written consent of Lender. (c) Borrower shall not permit any Leasehold Borrower to, without Lender’s prior written consent, surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modify, amend, supplement or restate, any Ground Lease. Consent to one change, modification, amendment, supplement or restatement shall not be deemed to be a waiver of the right to require consent to other, future or successive changes, modifications, amendments, supplements or restatements. Any acquisition of ground lessor’s interest in any Ground Lease by Mortgage Borrower, Maryland Owner or any Affiliate thereof shall be accomplished by Mortgage Borrower or Maryland Owner in such a manner so as to avoid a merger of the interests of ground lessor and ground lessee in such Ground Lease, unless consent to such merger is granted by Lender. (d) Borrower shall not permit any Leasehold Borrower to fail to pay any rent, additional rent or other charge payable under any Ground Lease as and when such rent or other charge is due (unless waived in writing by the ground lessor under such Ground Lease). (e) Borrower shall not permit to occur any event of default (beyond any applicable notice, grace or cure periods) by any Leasehold Borrower, as tenant under the related Ground Lease, in the observance or performance of any term, covenant or condition of such Ground Lease on the part of such Leasehold Borrower, to be observed or performed (unless waived in writing by the ground lessor under such Ground Lease).
Appears in 1 contract
Samples: Loan Agreement (Hcp, Inc.)
Ground Lease. (a) Borrower will comply in all material respects with the terms and conditions of the Ground Lease. Borrower will not do or permit anything to be done, the doing of which, or refrain from doing anything, the omission of which, will impair or tend to impair the security of the Premises under the Ground Lease or will be grounds for declaring a forfeiture of the Ground Lease.
(b) Borrower shall enforce the Ground Lease and will not terminate, modify, cancel, change, supplement, alter or amend the Ground Lease, or waive, excuse, condone or in any way release or discharge Ground Lessor of or from any of the material covenants and conditions to be performed or observed by Ground Lessor. Borrower does hereby bargain, sell, assign and set over to Lender, all of Borrower’s interests in the Ground Lease. The assignment of Borrower’s interest set forth in this Section 2.12(b) is an absolute, unconditional and present assignment from Borrower to Lender and not an assignment for security and the existence or exercise of Borrower’s revocable license to take all actions with respect to the Ground Lease shall not permit operate to subordinate this assignment to any Leasehold subsequent assignment. The exercise by Lender of any of its rights or remedies pursuant to this Section 2.12(b) shall not be deemed to make Lender a mortgagee-in-possession. So long as there is no existing or continuing Event of Default, Borrower shall have a revocable license to take all actions with respect to the Ground Lease subject to the terms of this Security Instrument. Any surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease without the prior written consent of Lender shall be void and of no force and effect.
(c) Lender shall have the right, but not the obligation, to perform any obligations of Borrower under the terms of the Ground Lease during the continuance of an Event of Default. All costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) so incurred, shall be treated as an advance secured by this Security Instrument, shall bear interest thereon at the Default Rate from the date of payment by Lender until paid in full and shall be paid by Borrower to Lender during the continuance of an Event of Default within five (5) Business Days after demand. No performance by Lender of any obligations of Borrower shall constitute a waiver of any Event of Default arising by reason of Borrower’s failure to perform the same. If Lender shall make any payment or perform any act or take action in accordance with this Section 2.12(c), Lender will notify Borrower of the making of any such payment, the performance of any such act, or the taking of any such action. In any such event, subject to the rights of lessees, sublessees and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action.
(d) To the extent permitted by law, the price payable by Borrower or any other Person in the exercise of any right of redemption following foreclosure of the Property shall include all rents paid and other sums advanced by Lender on behalf of Borrower, together with interest thereon at the Default Rate.
(e) Unless Lender shall otherwise consent, the fee title and the leasehold estate in the Premises shall not merge but shall always be kept separate and distinct, notwithstanding the union of said estates either in Ground Lessor or in Borrower, or in a third party, by purchase or otherwise.
(f) If the Ground Lessor shall deliver to Lender a copy of any notice of default sent by the Ground Lessor to Borrower, as tenant under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith in accordance with this Security Instrument, in reliance thereon.
(g) Borrower shall exercise each individual option, if any, to extend or renew the term of the Ground Lease not less than thirty (30) days prior to the last day upon which any such option may be exercised (and in all events within five (5) days after demand by Lender made at any time within one (1) year of the last day upon which any such option may be exercised), and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower to so exercise such option if Borrower fails to exercise as herein required, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Borrower shall give Lender notice of Borrower’s exercise of any such option to extend or renew the term of the Ground Lease within five (5) days of the exercise of any such option.
(h) Each Space Lease hereafter made and each renewal of any existing Space Lease shall provide that, in the event of any action for the foreclosure of this Security Instrument, such Space Lease shall not terminate or be terminable by the lessee by reason of the termination of the Ground Lease unless the lessee is specifically named and joined in any such action and unless a judgment is obtained therein against the lessee.
(i) Borrower hereby assigns, transfers and sets over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by the Ground Lessor of the Ground Lease under the Bankruptcy Code. Borrower shall notify Lender promptly (and in any event within ten (10) days) of any claim, suit, action or proceeding relating to the rejection of the Ground Lease. Lender is hereby irrevocably appointed as Borrower’s attorney-in-fact, coupled with an interest, with exclusive power to file and prosecute, to the exclusion of Borrower, any proofs of claim, complaints, motions, applications, notices and other documents, in any case in respect of the Ground Lessor under the Bankruptcy Code during the continuance of an Event of Default. Borrower may make any compromise or settlement in connection with such proceedings (subject to Lender’s reasonable approval); provided, however, that Lender shall be authorized and entitled to compromise or settle any such proceeding if such compromise or settlement is made after the occurrence and during the continuance of an Event of Default. Borrower shall promptly execute and deliver to Lender any and all instruments reasonably required in connection with any such proceeding after request therefor by Lender. Except as set forth above, Borrower shall not adjust, compromise, settle or enter into any agreement with respect to such proceedings without the prior written consent of Lender, which consent shall not be unreasonably withheld or delayed.
(j) Borrower shall not, without Lender’s prior written consent, elect to fail to exercise any option or right to renew or extend treat the term Ground Lease as terminated under Section 365(h)(1) of the applicable Ground Lease in accordance with the terms of Bankruptcy Code. Any such Ground Lease, and shall give immediate notice to Lender thereof and shall execute, acknowledge, deliver and record any document requested by Lender to evidence the Lien of the Mortgage on such extended or renewed lease term.
(b) Borrower shall not permit any Leasehold Borrower to waive, excuse, or in any way release or discharge the ground lessor under any Ground Lease of or from such ground lessor’s material obligations, covenants and/or conditions under the related Ground Lease without the prior written consent of Lender.
(c) Borrower shall not permit any Leasehold Borrower to, election made without Lender’s prior written consentconsent shall be void.
(k) If pursuant to Section 365(h)(2) of the Bankruptcy Code, surrenderBorrower seeks to offset against the rent reserved in the Ground Lease the amount of any damages caused by the non-performance by the Ground Lessor of any of the Ground Lessor’s obligations under the Ground Lease after the rejection by the Ground Lessor of the Ground Lease under the Bankruptcy Code, terminateBorrower shall, forfeitprior to effecting such offset, notify Lender of its intention to do so, setting forth the amounts proposed to be so offset and the basis therefor. If Lender has failed to object as aforesaid within ten (10) days after notice from Borrower in accordance with the first sentence of this Section 2.12(k), Borrower may proceed to effect such offset in the amounts set forth in Borrower’s notice. Neither Lender’s failure to object as aforesaid nor any objection or suffer other communication between Lender and Borrower relating to such offset shall constitute an approval of any such offset by Lender. Borrower shall indemnify and save Lender harmless from and against any and all claims, demands, actions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever (including, without limitation, reasonable attorneys’ fees and disbursements) arising from or permit relating to any such offset by Borrower against the surrenderrent reserved in the Ground Lease.
(l) Borrower shall immediately, termination after obtaining knowledge thereof, notify Lender of any filing by or forfeiture ofagainst the Ground Lessor of a petition under the Bankruptcy Code. Borrower shall thereafter forthwith give written notice of such filing to Lender, setting forth any information available to Borrower as to the date of such filing, the court in which such petition was filed, and the relief sought therein. Borrower shall promptly deliver to Lender following receipt any and all notices, summonses, pleadings, applications and other documents received by Borrower in connection with any such petition and any proceedings relating thereto.
(m) If there shall be filed by or changeagainst Borrower a petition under the Bankruptcy Code, modifyand Borrower, amendas the tenant under the Ground Lease, supplement or restateshall determine to reject the Ground Lease pursuant to Section 365(a) of the Bankruptcy Code, any then Borrower shall give Lender not less than ten (10) days prior notice of the date on which Borrower shall apply to the bankruptcy court for authority to reject the Ground Lease. Consent Lender shall have the right, but not the obligation, to one changeserve upon Borrower within such 10-day period a notice stating that (i) Lender demands that Borrower assume and assign the Ground Lease to Lender pursuant to Section 365 of the Bankruptcy Code and (ii) Lender covenants to cure or provide adequate assurance of prompt cure of all defaults and provide adequate assurance of future performance under the Ground Lease. If Lender serves upon Borrower the notice described in the preceding sentence, modification, amendment, supplement or restatement Borrower shall not be deemed seek to be a waiver reject the Ground Lease and shall comply with the demand provided for in clause (i) of the right preceding sentence within thirty (30) days after the notice shall have been given, subject to require consent to other, future or successive changes, modifications, amendments, supplements or restatements. Any acquisition of ground lessor’s interest in any Ground Lease the performance by Mortgage Borrower, Maryland Owner or any Affiliate thereof shall be accomplished by Mortgage Borrower or Maryland Owner in such a manner so as to avoid a merger Lender of the interests covenant provided for in clause (ii) of ground lessor and ground lessee in such Ground Lease, unless consent to such merger is granted by Lenderthe preceding sentence.
(dn) Effective upon the entry of an order for relief in respect of Borrower shall not permit any Leasehold under the Bankruptcy Code, Borrower hereby assigns and transfers to fail Lender a non-exclusive right to pay any rent, additional rent or other charge payable apply to the appropriate bankruptcy court under any Section 365(d)(4) of the Bankruptcy Code for an order extending the period during which the Ground Lease as and when such rent may be rejected or other charge is due (unless waived in writing by the ground lessor under such Ground Lease)assumed.
(eo) Borrower will give Lender prompt (and in all events within five (5) Business Days) notice of any default under the Ground Lease or of the receipt by Borrower of any notice of default from Ground Lessor. Borrower will promptly (and in all events within (5) Business Days) furnish to Lender copies of all information furnished to Ground Lessor by the terms of the Ground Lease or the provisions of this Section 2.12. Borrower will deposit with Lender an exact copy of any notice, communication, plan, specification or other instrument or document received or given by Borrower in any way relating to or affecting the Ground Lease which may concern or affect the estate of Ground Lessor or Borrower thereunder in or under the Ground Lease or in the real estate thereby demised.
(p) Upon acquisition of the fee title or any other estate, title or interest in the Premises by Borrower, this Security Instrument shall, automatically and without the necessity of execution of any other documents, attach to and cover and be a lien upon such other estate so acquired, and such other estate shall be considered as mortgaged, assigned and conveyed to Lender and the lien hereof spread to cover such estate with the same force and effect as though specifically herein mortgaged, assigned and conveyed. The provisions of this subsection shall not permit apply if Lender acquires title to occur any event of default (beyond any applicable notice, grace or cure periods) by any Leasehold Borrower, as tenant under the related Ground Lease, in the observance or performance of any term, covenant or condition of such Ground Lease on the part of such Leasehold Borrower, to be observed or performed (Premises unless waived in writing by the ground lessor under such Ground Lease)Lender shall so elect.
Appears in 1 contract
Samples: Deed of Trust, Security Agreement, Assignment of Rents and Fixture Filing (Pebblebrook Hotel Trust)
Ground Lease. (a) Borrower shall not permit any Leasehold Borrower, without Lender’s prior written consent, to fail to exercise any option or right to renew or extend the term of the applicable Ground Lease will comply in accordance all material respects with the terms and conditions of such the Ground Lease. Borrower will not do or permit anything to be done, and shall give immediate notice the doing of which, or refrain from doing anything, the omission of which, will impair or tend to Lender thereof and shall execute, acknowledge, deliver and record any document requested by Lender to evidence impair the Lien security of the Mortgage on such extended Property under the Ground Lease or renewed lease termwill be grounds for declaring a forfeiture of the Ground Lease.
(b) Borrower shall enforce the Ground Lease and will not permit any Leasehold Borrower to terminate, modify, cancel, change, supplement, alter or amend the Ground Lease, or waive, excuse, condone or in any way release or discharge the ground Ground Lessor of or from any of the material covenants and conditions to be performed or observed by the lessor under the Ground Lease. Borrower hereby expressly covenants with Lender not to cancel, surrender, amend, modify or alter in any way the terms of the Ground Lease. Borrower hereby assigns to Lender, as further security for the payment of the Debt and for the performance and observance of the terms, covenants and conditions of the Mortgage, all of the rights, privileges and prerogatives of Borrower as tenant under the Ground Lease to surrender the leasehold estate created by the Ground Lease or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease, and any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease without the prior consent of Lender shall be void and of no force and effect.
(c) Borrower will give Lender prompt (and in all events within three (3) Business Days) notice of any default under the Ground Lease of which it has knowledge or of the receipt by Borrower of any notice of default from such ground lessor’s material obligationsGround Lessor. Borrower will promptly (and in all events within three (3) days) furnish to Lender copies of all information furnished to Ground Lessor by the terms of the Ground Lease or the provisions of this Section. Borrower will deliver to Lender an exact copy of any notice, covenants and/or conditions communication, plan, specification or other instrument or document received or given by Borrower in any way relating to or affecting the Ground Lease which may concern or affect the estate of Ground Lessor or Borrower thereunder in or under the related Ground Lease or in the real estate thereby demised.
(d) Lender shall have the right, but not the obligation, to perform any obligations of Borrower under the terms of the Ground Lease during the continuance of a default thereunder. All costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) so incurred, shall be treated as an advance secured by the Mortgage, shall bear interest thereon at the Default Rate from the date of payment by Lender until paid in full and shall be paid by Borrower to Lender during the continuance of a default within five (5) days after demand. No performance by Lender of any obligations of Borrower shall constitute a waiver of any default arising by reason of Borrower's failure to perform the same. If Lender shall make any payment or perform any act or take action in accordance with this provision, Lender will notify Borrower of the making of any such payment, the performance of any such act, or the taking of any such action. In any such event, Lender and any person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action.
(e) To the extent permitted by law, the price payable by Borrower or any other person or entity in the exercise of any right of redemption following foreclosure of the Property shall include all rents paid and other sums advanced by Lender, together with interest thereon at the Default Rate as ground lessee under the Ground Lease, on behalf of Borrower on account of the Property.
(f) Unless Lender shall otherwise consent, the fee title and the leasehold estate in the Property shall not merge but shall always be kept separate and distinct, notwithstanding the union of said estates either in Ground Lessor or in Borrower, or in a third party, by purchase or otherwise.
(g) Upon acquisition by Borrower of the fee title or any other estate, title or interest in the Property, the Mortgage shall, automatically and without the necessity of execution of any other documents, attach to and cover and be a lien upon such other estate so acquired, and such other estate shall be considered as mortgaged, assigned and conveyed to Lender and the lien hereof spread to cover such estate with the same force and effect as though specifically herein mortgaged, assigned and conveyed. The provisions of this subsection (g) shall not apply if Lender acquires fee title to the Property unless Lender shall so elect.
(h) If the Ground Lessor shall deliver to Lender a copy of any notice of default sent by the Ground Lessor to Borrower, as tenant under the Ground Lease, such notice 36 shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in reliance thereon.
(i) Borrower shall exercise each individual option, if any, to extend or renew the term of the Ground Lease promptly (and in all events within five (5) days) after demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower to so exercise such option if Borrower fails to exercise as herein required, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
(j) Borrower shall use commercially reasonable efforts to provide that each Lease hereafter made and each renewal of any existing Lease affecting the Property shall provide that, (i) in the event of the termination of the Ground Lease, the Lease shall not terminate or be terminable by the lessee; (ii) in the event of any action for the foreclosure of the Mortgage, the Lease shall not terminate or be terminable by the lessee by reason of the termination of the Ground Lease unless the lessee is specifically named and joined in any such action and unless a judgment is obtained therein against the lessee; and (iii) in the event that the Ground Lease is terminated as aforesaid, the lessee under the Lease shall attorn to the lessor under the Ground Lease or to the purchaser at the sale of the Property on such foreclosure, as the case may be.
(k) Borrower hereby assigns, transfers and sets over to Lender all of Borrower's claims and rights to the payment of damages arising from any rejection by the Ground Lessor of the Ground Lease under the Bankruptcy Code. Borrower shall notify Lender promptly (and in any event within five (5) days) of any claim, suit action or proceeding relating to the rejection of the Ground Lease. Lender is hereby irrevocably appointed as Borrower's attorney-in-fact, coupled with an interest, with exclusive power to file and prosecute, to the exclusion of Borrower, any proofs of claim, complaints, motions, applications, notices and other documents, in any case in respect of the Ground Lessor under the Bankruptcy Code during the continuance of any default. Borrower may make any compromise or settlement in connection with such proceedings (subject to Lender's approval); provided, however, that Lender shall be authorized and entitled to compromise or settle any such proceeding if such compromise or settlement is made after the occurrence of an Event of Default. Borrower shall promptly execute and deliver to Lender any and all instruments reasonably required in connection with any such proceeding after request therefor by Lender. Except as set forth above, Borrower shall not adjust, compromise, settle or enter into any agreement with respect to such proceedings without the prior written consent of Lender.
(cl) Borrower shall not permit any Leasehold Borrower tonot, without Lender’s 's prior written consent, surrenderelect to treat the Ground Lease as terminated under Section 365(h)(1) of the Bankruptcy Code. Any such election made without Lender's prior written consent shall be void.
(m) If pursuant to Section 365(h)(2) of the Bankruptcy Code, terminateBorrower seeks to offset against the rent reserved in the Ground Lease the amount of any damages caused by the non-performance by the Ground Lessor of any of the Ground Lessor's obligations under the Ground Lease after the rejection by the Ground Lessor of the Ground Lease under the 37 Bankruptcy Code, forfeitBorrower shall, prior to effecting such offset, notify Lender of its intention to do so, setting forth the amounts proposed to be so offset and the basis therefor. If Lender has failed to object as aforesaid within ten (10) days after notice from Borrower in accordance with the first sentence of this subsection (m), Borrower may proceed to effect such offset in the amounts set forth in Borrower's notice. Neither Lender's failure to object as aforesaid nor any objection or other communication between Lender and Borrower relating to such offset shall constitute an approval of any such offset by Lender. Borrower shall indemnify and save Lender harmless from and against any and all claims, demands, actions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever (including, without limitation, reasonable attorneys' fees and disbursements) arising from or relating to any such offset by Borrower against the rent reserved in the Ground Lease.
(n) If any action, proceeding, motion or notice shall be commenced or filed in respect of Borrower or, following an Event of Default, the Property in connection with any case under the Bankruptcy Code, Lender shall have the option, to the exclusion of Borrower, exercisable upon notice from Lender to Borrower, to conduct and control any such litigation with counsel of Lender's choice. Lender may proceed in its own name or in the name of Borrower in connection with any such litigation, and Borrower agrees to execute any and all powers, authorizations, consents and other documents required by Lender in connection therewith. Borrower shall pay to Lender all costs and expenses (including, without limitation, reasonable attorneys' fees and disbursements) paid or incurred by Lender in connection with the prosecution or conduct of any such proceedings within five (5) days after notice from Lender setting forth such costs and expenses in reasonable detail. Any such costs or expenses not paid by Borrower as aforesaid shall be secured by the lien of the Mortgage, shall be added to the principal amount of the Debt and shall bear interest at the Default Rate. Borrower shall not commence any action, suit, proceeding or case, or suffer file any application or permit the surrendermake any motion, termination or forfeiture of, or change, modify, amend, supplement or restate, any Ground Lease. Consent to one change, modification, amendment, supplement or restatement shall not be deemed to be a waiver in respect of the right to require consent to other, future or successive changes, modifications, amendments, supplements or restatements. Any acquisition of ground lessor’s interest Ground Lease in any Ground Lease by Mortgage Borrower, Maryland Owner or any Affiliate thereof shall be accomplished by Mortgage Borrower or Maryland Owner in such a manner so as to avoid a merger case under the Bankruptcy Code without the prior written consent of the interests of ground lessor and ground lessee in such Ground Lease, unless consent to such merger is granted by Lender.
(do) Borrower shall immediately, after obtaining knowledge thereof, notify Lender of any filing by or against the Ground Lessor of a petition under the Bankruptcy Code. Borrower shall thereafter forthwith give written notice of such filing to Lender, setting forth any information available to Borrower as to the date of such filing, the court in which such petition was filed, and the relief sought therein. Borrower shall promptly deliver to Lender following receipt any and all notices, summonses, pleadings, applications and other documents received by Borrower in connection with any such petition and any proceedings relating thereto.
(p) If there shall be filed by or against Borrower a petition under the Bankruptcy Code, and Borrower, as the tenant under the Ground Lease, shall determine to reject the Ground Lease pursuant to Section 365(a) of the Bankruptcy Code, then Borrower shall give Lender not permit less than ten (10) days' prior written notice of the date on which Borrower shall apply to the bankruptcy court for authority to reject the Ground Lease. Lender shall have the right, but not the obligation, to serve upon Borrower within such 10-day period a notice stating that (i) Lender demands that Borrower assume and assign the Ground Lease to Lender pursuant to Section 365 of the Bankruptcy Code and (ii) Lender covenants to cure or provide adequate assurance of prompt cure of all defaults and provide adequate assurance of future performance under the Ground Lease. If Lender serves upon Borrower the notice described in the preceding 38 sentence, Borrower shall not seek to reject the Ground Lease and shall comply with the demand provided for in clause (i) of the preceding sentence within thirty (30) days after the notice shall have been given, subject to the performance by Lender of the covenant provided for in clause (ii) of the preceding sentence.
(q) Effective upon the entry of an order for relief in respect of Borrower under the Bankruptcy Code, Borrower hereby assigns and transfers to Lender a non-exclusive right to apply to the Bankruptcy Court under Section 365(d)(4) of the Bankruptcy Code for an order extending the period during which the Ground Lease may be rejected or assumed.
(r) Borrower represents and warrants that (i) the Ground Lease may be assigned from time to time with the consent of Ground Lessor, which consent has properly been obtained; (ii) Borrower has the right under the Ground Lease to mortgage the Ground Lease and the leasehold estate thereby created without the prior consent of Ground Lessor of such if consent is required, it has properly been obtained; (iii) if any Leasehold default by Borrower shall occur under the Ground Lease, Lender is entitled under the Ground Lease to fail receive notice of such default from Ground Lessor and an opportunity to pay cure any rentsuch default which is susceptible of cure by Lender; (iv) if the Ground Lease is terminated by reason of a default by Borrower, Lender or its designee is entitled under the Ground Lease to enter into a new lease (the "New Lease") with Ground Lessor for the remainder of the term of the Ground Lease upon the same base rent and additional rent and other terms, covenants, conditions and agreements as are contained in the Ground Lease, provided that Lender or its designee shall have cured any monetary defaults; (v) provided that Lender shall have notified the Ground Lessor of Lender's address, the Ground Lease or a supplemental agreement requires the Ground Lessor to give copies of all notices of default which are given under the Ground Lease to Borrower contemporaneously to Lender; (vi) the Ground Lease represents the entire agreement between the parties thereto and is in full force and effect and has not been modified or supplemented; (vii) the Ground Lease cannot be canceled solely by Ground Lessor, except for Borrower's defaults, and requires Borrower's consent for all material modifications; (viii) all rents (including additional rents and other charges) reserved for in the Ground Lease and payable prior to the date hereof have been paid; (ix) Borrower is not in default of any obligation Borrower has thereunder and no event has occurred which, with the giving of notice or the lapse of time, or both, would constitute such a default, and to the best of Borrower's knowledge, no other party to the Ground Lease is in default of any obligation such party has thereunder and no event has occurred which, with the giving of notice or the lapse of time, or both, would constitute such a default; and (x) no notice or other charge payable written or oral communication has been provided to any party under any the Ground Lease which alleges that, as and when such rent of the date hereof, either a default exists or other charge is due (unless waived in writing by with the ground lessor passage of time will exist under the provisions of such Ground Lease).
(e) Borrower shall not permit to occur any event of default (beyond any applicable notice, grace or cure periods) by any Leasehold Borrower, as tenant under the related Ground Lease, in the observance or performance of any term, covenant or condition of such Ground Lease on the part of such Leasehold Borrower, to be observed or performed (unless waived in writing by the ground lessor under such Ground Lease).
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Ground Lease. (a) Borrower shall not permit any Leasehold (i) pay (or cause to be paid) all rents, additional rents and other sums required to be paid by Borrower, without Lender’s prior written consent, as tenant under and pursuant to fail to exercise any option or right to renew or extend the term provisions of the applicable Ground Lease in accordance with the terms of such Ground Lease, (ii) diligently perform and shall give immediate observe all of the terms, covenants and conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed and observed, (iii) promptly notify Lender of the giving of any written notice by the landlord under the Ground Lease to Borrower of any default by Borrower in the performance or observance of any of the terms, covenants or conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed, and deliver to Lender thereof a true copy of each such notice within five (5) Business Days of receipt, and shall execute(iv) promptly notify Lender of any bankruptcy, acknowledge, deliver and record any document requested by Lender to evidence the Lien reorganization or insolvency of the Mortgage on landlord under the Ground Lease or of any notice thereof, and deliver to Lender a true copy of such extended or renewed lease term.
notice within five (b5) Business Days of Borrower’s receipt. Borrower shall not permit any Leasehold Borrower to waivenot, excuse, or in any way release or discharge the ground lessor under any Ground Lease of or from such ground lessor’s material obligations, covenants and/or conditions under the related Ground Lease without the prior written consent of Lender.
(c) Borrower shall not permit any Leasehold Borrower to, without Lender’s prior written consentsurrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modifysupplement, amend, supplement alter or restate, any Ground Lease. Consent to one change, modification, amendment, supplement or restatement shall not be deemed to be a waiver of amend the right to require consent to other, future or successive changes, modifications, amendments, supplements or restatements. Any acquisition of ground lessor’s interest in any Ground Lease by Mortgage Borrower, Maryland Owner or any Affiliate thereof shall be accomplished by Mortgage Borrower or Maryland Owner in such a manner so as to avoid a merger of the interests of ground lessor and ground lessee in such Ground Lease, unless consent either orally or in writing. Borrower hereby assigns to such merger is granted by Lender.
(d) Borrower shall not permit any Leasehold Borrower to fail to pay any rent, additional rent or as further security for the payment and performance of the obligations and for the performance and observance of the terms, covenants and conditions of the Security Instrument, this Agreement and the other charge payable under any Ground Lease as Loan Documents, all of the rights, privileges and when such rent or other charge is due (unless waived in writing by the ground lessor under such Ground Lease).
(e) Borrower shall not permit to occur any event prerogatives of default (beyond any applicable notice, grace or cure periods) by any Leasehold Borrower, as tenant under the related Ground Lease, to surrender the leasehold estate created by the Ground Lease or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease in any material respect, and any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease in any material respect without the prior consent of Lender shall be void and of no force and effect. If Borrower shall default in the performance or observance or performance of any term, covenant or condition of such the Ground Lease on the part of such Leasehold Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then, without limiting the generality of the other provisions of the Security Instrument, this Agreement and the other Loan Documents, and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Ground Lease on the part of Borrower to be performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Ground Lease shall be observed kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or performed omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time not more than one (unless waived 1) year prior to, and not less than one (1) month prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in- fact to exercise any such option in writing the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Borrower will not consent to any mortgage, security deed, lease or other interest on or in the landlord’s interest in all or any part of the Property, nor will it subordinate or consent to the subordination of the Ground Lease to any such interest, unless, in each such case, the written consent of Lender shall have been first had and obtained. Notwithstanding anything contained in the Ground Lease to the contrary, Borrower shall not further sublet any portion of the Property (other than as permitted pursuant to Section 4.14 hereof) without prior written consent of Lender. Each such sublease hereafter made shall provide that (i) in the event of the termination of the Ground Lease, the sublease shall not terminate or be terminable by the ground lessee thereunder; (ii) in the event of any action for the foreclosure of the Security Instrument, the sublease shall not terminate or be terminable by the lessee thereunder by reason of the termination of the Ground Lease unless such lessee is specifically named and joined in any such action and unless a judgment is obtained therein against such lessee; and (iii) in the event that the Ground Lease is terminated as aforesaid, the lessee under the sublease shall attorn to the lessor under the Ground Lease or to the purchaser at the sale of the Property on such Ground Lease)foreclosure, as the case may be. In the event that any portion of the Property shall be sublet pursuant to the terms of this subsection, such sublease shall be deemed to be included in the Property.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital Trust III, Inc.)
Ground Lease. Mortgagor shall (ai) Borrower shall not permit any Leasehold Borrowerpay all rents, without Lender’s prior written consent, to fail to exercise any option or right to renew or extend the term of the applicable Ground Lease in accordance with the terms of such Ground Lease, additional rents and shall give immediate notice to Lender thereof and shall execute, acknowledge, deliver and record any document requested by Lender to evidence the Lien of the Mortgage on such extended or renewed lease term.
(b) Borrower shall not permit any Leasehold Borrower to waive, excuse, or in any way release or discharge the ground lessor under any Ground Lease of or from such ground lessor’s material obligations, covenants and/or conditions under the related Ground Lease without the prior written consent of Lender.
(c) Borrower shall not permit any Leasehold Borrower to, without Lender’s prior written consent, surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modify, amend, supplement or restate, any Ground Lease. Consent to one change, modification, amendment, supplement or restatement shall not be deemed other sums required to be a waiver paid by Mortgagor, as tenant under and pursuant to the provisions of the right to require consent to other, future or successive changes, modifications, amendments, supplements or restatements. Any acquisition of ground lessor’s interest in any Ground Lease by Mortgage Borrower, Maryland Owner or any Affiliate thereof shall be accomplished by Mortgage Borrower or Maryland Owner in such a manner so as to avoid a merger of the interests of ground lessor and ground lessee in such Ground Lease, unless consent to such merger is granted by Lender.
(d) Borrower shall not permit any Leasehold Borrower to fail to pay any rent, additional rent or other charge payable under any each Ground Lease as and when such rent or other charge is due payable, (unless waived ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgagor, as tenant thereunder, to be performed and observed prior to the expiration of any applicable grace period therein provided, and (iii) promptly notify Mortgagee of the receipt by Mortgagor of any notice by the Ground Lessor to Mortgagor of any default by Mortgagor in the performance or observance of any of the terms, covenants or conditions of any Ground Lease on the part of Mortgagor, as tenant thereunder, to be performed or observed and deliver to Mortgagee a true copy of each such notice. Mortgagor shall not, without the prior consent of Mortgagee, surrender the leasehold estate created by any Ground Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend any Ground Lease, in any respect, either orally or in writing by and Mortgagor hereby assigns to Mortgagee, as further security for the ground lessor under such Ground Lease).
(e) Borrower shall not permit to occur any event payment and performance of default (beyond any applicable noticeall Secured Indebtedness, grace or cure periods) by any Leasehold Borrowerall of the rights, privileges and prerogatives of Mortgagor, as tenant under the related Ground Leases, to surrender the leasehold estate created by any Ground Lease or to terminate, cancel, modify, change, supplement, alter or amend any Ground Lease, and any such surrender of such leasehold estate or termination, cancellation, modification, change, supplement, alteration or amendment of any Ground Lease without the prior consent of Mortgagee shall be void and of no force and effect. If Mortgagor shall default, beyond any applicable grace period, in the performance or observance or performance of any term, covenant or condition of any Ground Lease on the part of Mortgagor, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of this Mortgage, and without waiving or releasing Mortgagor from any of its obligations hereunder, Mortgagee shall have the right upon notice to Mortgagor, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Ground Lease on the part of such Leasehold BorrowerMortgagor, as tenant thereunder, to be performed or observed or to be promptly performed (unless waived or observed on behalf of Mortgagor, to the end that the rights of Mortgagor in, to and under the Ground Lease shall be kept unimpaired and free from default, even though the existence of such event of default or the nature thereof be questioned or denied by Mortgagor or by any party on behalf of Mortgagor. If Mortgagee shall make any payment or perform any act or take action in writing accordance with the preceding sentence, Mortgagee will notify Mortgagor of the making of any such payment, the performance of any such act, or the taking of any such action. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Mortgagee and any person designated by Mortgagee shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. Mortgagee may pay and expend such sums of money as Mortgagee deems necessary for any such purpose and upon so doing shall be subrogated to any and all rights of the Ground Lessor. Mortgagor hereby agrees to pay to Mortgagee immediately and without demand, all such sums so paid and expended by Mortgagee, together with interest thereon from the day of such payment at the Default Rate. All sums so paid and expended by Mortgagee and the interest thereon shall be secured by the ground lessor legal operation and effect of the Mortgage. If the Ground Lessor shall deliver to Mortgagee a copy of any notice of default sent by said Ground Lessor to Mortgagor, as tenant under such the Ground Lease), such notice shall constitute full protection to Mortgagee for any action taken or omitted to be taken by Mortgagee, in good faith, in reliance thereon. Mortgagor will not subordinate or consent to the subordination of any Ground Lease to any mortgage, security deed, lease or other interest on or in the Ground Lessor’s interest in all or any part of the Property, unless, in each such case, the written consent of Mortgagee shall have been first had and obtained. Each Lease hereafter made and each renewal of any existing Lease shall provide that, (a) in the event of the termination of the applicable Ground Lease, the Lease shall not terminate or be terminated by the tenant; and (b) in the event of any action for the foreclosure of the Mortgage, the Lease shall not terminate or be terminable by the subtenant by reason of the termination of the applicable Ground Lease unless the tenant is specifically named and joined in any such action and unless a judgment is obtained therein against the tenant.
Appears in 1 contract
Samples: Mortgage, Security Agreement and Fixture Filing (Taubman Centers Inc)
Ground Lease. (a) Borrower shall not permit any Leasehold (i) pay all rents, additional rents and other sums required to be paid by Borrower, without Lender’s prior written consent, as tenant under and pursuant to fail to exercise any option or right to renew or extend the term provisions of the applicable Ground Lease in accordance with the terms of such Ground Lease, (ii) diligently perform and shall give immediate observe all of the terms, covenants and conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed and observed, and (iii) promptly notify Lender of the giving of any written notice by the landlord under the Ground Lease to Borrower of any default by Borrower in the performance or observance of any of the terms, covenants or conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed, and deliver to Lender thereof a true copy of each such notice within five (5) Business Days of receipt and shall execute(iv) promptly notify Lender of any bankruptcy, acknowledge, deliver and record any document requested by Lender to evidence the Lien reorganization or insolvency of the Mortgage on landlord under the Ground Lease or of any notice thereof, and deliver to Lender a true copy of such extended or renewed lease term.
notice within five (b5) Business Days of Borrower’s receipt. Borrower shall not permit any Leasehold Borrower to waivenot, excuse, or in any way release or discharge the ground lessor under any Ground Lease of or from such ground lessor’s material obligations, covenants and/or conditions under the related Ground Lease without the prior written consent of Lender.
(c) Borrower shall not permit any Leasehold Borrower to, without Lender’s prior written consentsurrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modifysupplement, amend, supplement alter or restate, any Ground Lease. Consent to one change, modification, amendment, supplement or restatement shall not be deemed to be a waiver of amend the right to require consent to other, future or successive changes, modifications, amendments, supplements or restatements. Any acquisition of ground lessor’s interest in any Ground Lease by Mortgage Borrower, Maryland Owner or any Affiliate thereof shall be accomplished by Mortgage Borrower or Maryland Owner in such a manner so as to avoid a merger of the interests of ground lessor and ground lessee in such Ground Lease, unless consent either orally or in writing. Borrower hereby assigns to such merger is granted by Lender.
(d) Borrower shall not permit any Leasehold Borrower to fail to pay any rent, additional rent or as further security for the payment and performance of the obligations and for the performance and observance of the terms, covenants and conditions of the Security Instrument, this Agreement and the other charge payable under any Ground Lease as Loan Documents, all of the rights, privileges and when such rent or other charge is due (unless waived in writing by the ground lessor under such Ground Lease).
(e) Borrower shall not permit to occur any event prerogatives of default (beyond any applicable notice, grace or cure periods) by any Leasehold Borrower, as tenant under the related Ground Lease, to surrender the leasehold estate created by the Ground Lease or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease in any material respect, and any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease in any material respect without the prior consent of Lender shall be void and of no force and effect. If Borrower shall default in the performance or observance or performance of any term, covenant or condition of such the Ground Lease on the part of such Leasehold Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then, without limiting the generality of the other provisions of the Security Instrument, this Agreement and the other Loan Documents, and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Ground Lease on the part of Borrower to be performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Ground Lease shall be observed kept unimpaired and free from default. If the landlord under the Ground Lease shall deliver to Lender a copy of any notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or performed omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (unless waived 1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in writing the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Borrower will not subordinate or consent to the subordination of the Ground Lease to any mortgage, security deed, lease or other interest on or in the landlord’s interest in all or any part of the Property, unless, in each such case, the written consent of Lender shall have been first had and obtained.
(b) Notwithstanding anything contained in the Ground Lease to the contrary, Borrower shall not further sublet any portion of the Property (other than pursuant to the Operating Lease or as permitted pursuant to Section 4.1.9 hereof) without prior written consent of Lender. Each such sublease hereafter made shall provide that (i) in the event of the termination of the Ground Lease, the sublease shall not terminate or be terminable by the lessee thereunder; (ii) in the event of any action for the foreclosure of the Security Instrument, the sublease shall not terminate or be terminable by the lessee thereunder by reason of the termination of the Ground Lease unless such lessee is specifically named and joined in any such action and unless a judgment is obtained therein against such lessee; and (iii) in the event that the Ground Lease is terminated as aforesaid, the lessee under the sublease shall attorn to the lessor under the Ground Lease or to the purchaser at the sale of the Property on such foreclosure, as the case may be. In the event that any portion of the Property shall be sublet pursuant to the terms of this subsection, such sublease shall be deemed to be included in the Property.
(c) Borrower hereby agrees that it shall not consent to the sub-ground lessor under such the Ground Lease)Lease electing to treat the Ground Lease as terminated under Section 365(h) of the Bankruptcy Code pursuant to Section 11.06 of the Ground Lease without obtaining Lender’s prior written consent.
Appears in 1 contract
Ground Lease. (a) Borrower Mortgagor shall (i) pay all rents, additional rents and other sums required to be paid by the tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of the tenant thereunder to be performed and observed, unless such performance or observance shall be waived or not permit any Leasehold Borrower, without Lender’s prior written consentrequired by the landlord under the Ground Lease, to fail the end that all things shall be done which are necessary to exercise any option or right to renew or extend keep unimpaired the term rights of the applicable Ground Lease in accordance with tenant under the terms of such Ground Lease, and shall give immediate notice to Lender thereof and shall execute, acknowledge, deliver and record any document requested by Lender to evidence the Lien (iii) promptly notify Mortgagee of the Mortgage on such extended or renewed lease term.
(b) Borrower shall not permit giving of any Leasehold Borrower to waive, excuse, or in any way release or discharge notice by the ground lessor landlord under any the Ground Lease of any default in the performance or from such ground lessor’s material obligationsobservance of any of the terms, covenants and/or or conditions of the Ground Lease on the part of the tenant thereunder to be performed or observed and deliver to Mortgagee a true copy of each such notice. Mortgagor shall not, without the prior consent of Mortgagee, which consent shall not be unreasonably withheld, conditioned or delayed, surrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend the Ground Lease, in any respect, either orally or in writing, and Mortgagor hereby assigns to Mortgagee, as further security for the payment of the Debt and for the performance and observance of the terms, covenants and conditions of this Mortgage, the Credit Agreement and the other Loan Instruments, all of the rights, privileges and prerogatives of the tenant under the related Ground Lease to surrender any leasehold estate or easement interests created by the Ground Lease or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease, and any such surrender of the leasehold estate or easement interests created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease without the prior written consent of Lender.
(c) Borrower shall not permit any Leasehold Borrower toMortgagee, without Lender’s prior written consent, surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modify, amend, supplement or restate, any Ground Lease. Consent to one change, modification, amendment, supplement or restatement shall not be deemed to be a waiver of the right to require consent to other, future or successive changes, modifications, amendments, supplements or restatements. Any acquisition of ground lessor’s interest in any Ground Lease by Mortgage Borrower, Maryland Owner or any Affiliate thereof shall be accomplished by Mortgage Borrower or Maryland Owner in such a manner so as to avoid a merger void and of the interests of ground lessor no force and ground lessee in such Ground Lease, unless consent to such merger is granted by Lender.
(d) Borrower effect. If Mortgagor shall not permit any Leasehold Borrower to fail to pay any rent, additional rent or other charge payable under any Ground Lease as and when such rent or other charge is due (unless waived in writing by the ground lessor under such Ground Lease).
(e) Borrower shall not permit to occur any event of default (beyond any applicable notice, grace or cure periods) by any Leasehold Borrower, as tenant under the related Ground Lease, in the performance or observance or performance of any term, covenant or condition of such the Ground Lease to be performed or observed by the tenant thereunder, then, without limiting the generality of the other provisions of this Mortgage, and without waiving or releasing Mortgagor from any of its obligations hereunder, Mortgagee shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Ground Lease on the part of such Leasehold Borrowerthe tenant thereunder to be performed or observed, to be promptly performed or observed on behalf of Mortgagor, to the end that the rights of Mortgagor in, to and under the Ground Lease shall be kept unimpaired and free from default. If Mortgagee shall make any payment or performed (unless waived perform any act or take action in writing accordance with the preceding sentence, Mortgagee will notify Mortgagor of the making of any such payment, the performance of any such act, or taking of any such action. In any such event, subject to the rights of lessees, and other occupants under the Other Leases, Mortgagee and any person designated by Mortgagee shall have, and are hereby granted, the ground lessor right to enter upon the Mortgaged Property at any time and from time to time for the purpose of taking any such action. If the landlord under the Ground Lease shall deliver to Mortgagee a copy of any notice of default sent by said landlord to Mortgagor, as tenant under such Ground Lease, such notice shall constitute full protection to Mortgagee for any action taken or omitted to be taken by Mortgagee, in good faith, in reliance thereon. Mortgagor shall, from time to time, use its reasonable efforts to obtain from the landlord under the Ground Lease such certificates of estoppel with respect to compliance by Mortgagor with the terms of the Ground Lease as may be reasonably requested by Mortgagee. Mortgagor shall exercise each individual option, if any, to extend or renew the term of the Ground Lease, or option to purchase or right of first refusal with respect to purchase of the Leasehold Premises, as the case may be, upon demand by Mortgagee made at any time within one (1) year of the last day upon which any such option may be exercised, and Mortgagor hereby expressly authorizes and appoints Mortgagee its attorney-in-fact to exercise, either jointly or individually, any such option or right of first refusal in the name of and upon behalf of Mortgagor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
(b) Mortgagor shall not, without Mortgagee's prior written consent, elect to treat either the Ground Lease or the leasehold estate created thereby as terminated under Subsection 365(h)(1) of the Bankruptcy Code, after rejection or disaffirmance of the Ground Lease by the landlord thereunder or by any trustee of such party, and any such election made without such consent shall be void and ineffective.
(c) Subject to the Mortgagor's right to seek and retain certain offsets as permitted hereunder, Mortgagor hereby unconditionally assigns, transfers and sets over to Mortgagee all of Mortgagor's claims and rights to the payment of damages that may hereafter arise as a result of any rejection or disaffirmance of the Ground Lease by the landlord thereunder or by any trustee of such party, pursuant to the Bankruptcy Code. Mortgagee shall have and is hereby granted the right to proceed, in its own name or in the name of the Mortgagor, in respect of any claim, suit, action or proceeding relating to the rejection or disaffirmance of the Ground Lease (including, without limitation, the right to file and prosecute, to the exclusion of Mortgagor, any proofs of claim, complaints, motions, applications, notices and other documents) in any case in respect of the landlord under the Bankruptcy Code. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until the Debt secured by this Mortgage shall have been satisfied and discharged in full. Any amounts received by Mortgagee as damages arising out of any such rejection of the Ground Lease shall be applied toward payment of the Debt in such order and priority as contemplated under the Credit Agreement.
(d) In the event that, pursuant to Subsection 365(h)(2) of the Bankruptcy Code, Mortgagor seeks to offset against the rent payable under the Ground Lease the amount of any damages caused by the nonperformance by the landlord of such party's obligations under the Ground Lease after rejection or disaffirmance thereof under the Bankruptcy Code, Mortgagor shall, prior to effecting such offset, notify Mortgagee in writing of Mortgagor's intent to do so, setting forth the amounts proposed to be so offset and the basis therefor. Mortgagee shall have the right to object in writing (stating the reasons therefor) to all or any part of such offset, and, in the event of such objection, Mortgagor shall not effect any offset of the amounts so objected to by Mortgagee. If Mortgagee shall have failed to object as aforesaid within twenty (20) days after such notice, Mortgagor may proceed to effect such offset in the amounts set forth in such notice. Neither Mortgagee's failure to object as aforesaid nor any objection or other communication between Mortgagor and Mortgagee relating to such offset shall constitute an approval by Mortgagee of any such offset. If, in the best business judgment of the Mortgagor, such offset is justified and Mortgagee has received the aforesaid notices and has not objected but its time to do so has not expired, the Mortgagor shall have the right to make such offset and shall set aside t@,- offset amount as a reserve to be paid only if Mortgagee objects within the aforesaid time. Mortgagor shall indemnify and hold Mortgagee and its officers, directors, employees and agents harmless from and against any and all claims, demands, actions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever actually incurred (including, without limitation, reasonable legal fees and disbursements) arising from or relating to any such offset by Mortgagor.
(e) Mortgagor shall, promptly after obtaining knowledge thereof, use its best efforts to give prompt oral notice to Mortgagee of any actual or contemplated filing by or against the landlord under the Ground Lease of a petition under the Bankruptcy Code, and give prompt written notice thereof to Mortgagee of such actual or contemplated filing. The aforesaid written notice shall set forth any information available to Mortgagor concerning the date or anticipated date of such filing, the court in which such petition was filed or is expected to be filed, and the relief sought or reasonably expected to be sought therein. Mortgagor shall, promptly after receipt thereof, deliver to Mortgagee any and all notices, summonses, pleadings, applications and other documents received by Mortgagor in connection with any such petition and any proceedings related thereto.
(f) In the event that any action, proceeding, motion or notice shall be commenced or filed in respect of the landlord under the Ground Lease or the Mortgaged Property or any part thereof, in connection with any case under the Bankruptcy Code, Mortgagee shall have, and is hereby granted, the option, to the exclusion of Mortgagor, exercisable upon notice from Mortgagee to Mortgagor, to conduct and control any such litigation with counsel of Mortgagee's choice. Mortgagee may proceed, in its own name or in the name of Mortgagor, in connection with any such litigation, and Mortgagor agrees to execute any and all powers, authorizations, consents and other documents required by Mortgagee in connection therewith. Mortgagor shall, upon demand, pay to Mortgagee all costs and expenses (including without limitation, legal fees and disbursements) paid or incurred by Mortgagee in connection with the prosecution or conduct of any such proceedings, and, to the extent permitted by law, such costs and expenses shall be deemed expenses incurred in upholding the lien of this Mortgage and added to the indebtedness secured by this Mortgage. Mortgagor shall not, without the prior written consent of Mortgagee, commence any action, suit, proceeding or case, or file any application or make any motion, in respect of the Ground Lease in any such case under the Bankruptcy Code.
(g) In the event that a petition under the Bankruptcy Code shall be filed by or against Mortgagor, and Mortgagor, or anyone claiming through or under Mortgagor or a trustee in bankruptcy shall have the right to reject the Ground Lease pursuant to Section 365(a) of the Bankruptcy Code or a successor statute, Mortgagor shall give Mortgagee at least ten (10) days' prior written notice of the date on which application shall be made to the court for authority to reject the Ground Lease; provided, however, that if a trustee in bankruptcy shall have a right to reject the Ground Lease in less than ten (10) days, then Mortgagor shall give such notice to Mortgagee immediately upon Mortgagor's knowledge of such application. Mortgagee shall have the exclusive right, but not the obligation (subject to the rights of a trustee in bankruptcy), to exercise said right and Mortgagor hereby assigns said right to Mortgagee. If at any time the landlord under the Ground Lease, or anyone holding by, through or under the landlord under the Ground Lease or a trustee in bankruptcy shall elect to reject the Ground Lease pursuant to Section 365(a) of the Bankruptcy Code, or a successor statute, thereby giving to Mortgagor the right to elect to treat the Ground Lease as terminated pursuant to Section 365(h)(1) of the Bankruptcy Code, or a successor statute, Mortgagee shall have the exclusive right to exercise said right and Mortgagor hereby assigns said right to Mortgagee. If either of the assignments provided for in this paragraph is held to be enforceable, then Mortgagor, anyone claiming by, through or under Mortgagor or a trustee in bankruptcy, shall not exercise rights purportedly assigned to Mortgagee without the prior written consent of Mortgagee, and if Mortgagee shall give such consent, Mortgagor, anyone claiming by, through or under Mortgagor or a trustee in bankruptcy shall promptly exercise either of said rights.
(h) To the extent permitted by applicable law, Mortgagor hereby assigns, transfers and sets over to Mortgagee an exclusive right to apply to the Bankruptcy Court under Subsection 365(d)(4) of the Bankruptcy Code for an order extending the period during which the Ground Lease may be rejected or assumed after the entry of any order for relief in respect of Mortgagor under Chapter 7 or Chapter 11 of the Bankruptcy Code.
Appears in 1 contract
Samples: Leasehold Mortgage, Assignment of Leases and Rents and Security Agreement (NRG Generating U S Inc)
Ground Lease. (a) Borrower shall not permit any Leasehold cause Mortgage Borrower to (i) pay all rents, additional rents and other sums required to be paid by Borrower, without Lender’s prior written consentas tenant under and pursuant to the provisions of the Ground Lease (for the avoidance of doubt, Borrower hereby covenants and agrees that it shall cause Mortgage Borrower to pay 100% of all rents, additional rents and other sums due and payable under the Ground Lease notwithstanding the existence or obligations of any co-tenant thereunder (if any)), (ii) diligently perform and observe, in all material respects, all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to fail to exercise any option or right to renew or extend the term be performed and observed, and (iii) promptly notify Agent of the applicable receipt of any written notice given by the landlord under the Ground Lease to Borrower or Mortgage Borrower with respect to the Ground Lease Put or the Ground Lease ROFR and any notice of any default by Mortgage Borrower in accordance with the terms performance or observance of any of the terms, covenants or conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed or observed, and deliver to Agent a true copy of each such notice within three (3) Business Days of receipt and (iv) promptly notify Agent of any bankruptcy, reorganization or insolvency of the landlord under the Ground Lease or of any notice thereof, and deliver to Agent a true copy of such Ground Leasenotice within three (3) Business Days of Borrower’s or Mortgage Borrower’s receipt. Borrower shall not, and shall give immediate notice to Lender thereof and shall execute, acknowledge, deliver and record any document requested by Lender to evidence the Lien of the Mortgage on such extended or renewed lease term.
(b) Borrower shall not permit any Leasehold Borrower to waive, excuse, or in any way release or discharge the ground lessor under any Ground Lease of or from such ground lessor’s material obligations, covenants and/or conditions under the related Ground Lease without the prior written consent of Lender.
(c) Borrower shall not permit any Leasehold Mortgage Borrower to, without Lender’s the prior written consentconsent of Agent (not to be unreasonably withheld, surrenderconditioned or delayed), terminatesurrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modifysupplement, amend, supplement alter or restate, any Ground Lease. Consent to one change, modification, amendment, supplement or restatement shall not be deemed to be a waiver of amend the right to require consent to other, future or successive changes, modifications, amendments, supplements or restatements. Any acquisition of ground lessor’s interest in any Ground Lease by Mortgage Borrower, Maryland Owner or any Affiliate thereof shall be accomplished by Mortgage Borrower or Maryland Owner in such a manner so as to avoid a merger of the interests of ground lessor and ground lessee in such Ground Lease, unless consent either orally or in writing. Subject to such merger is granted by Lender.
(d) the rights of Mortgage Agent, Borrower shall not permit any Leasehold Borrower hereby assigns to fail to pay any rentAgent, additional rent or as further security for the payment and performance of the obligations and for the performance and observance of the terms, covenants and conditions of the Pledge Agreement, this Agreement and the other charge payable under any Ground Lease as Loan Documents, all of the rights, privileges and when such rent or other charge is due (unless waived in writing by the ground lessor under such Ground Lease).
(e) Borrower shall not permit to occur any event prerogatives of default (beyond any applicable notice, grace or cure periods) by any Leasehold Mortgage Borrower, as tenant under the related Ground Lease, to surrender the leasehold estate created by the Ground Lease or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease in any respect, and any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease in any respect without the prior consent of Agent (not to be unreasonably withheld, conditioned or delayed) shall be void and of no force and effect. Furthermore, Borrower shall not permit to Mortgage Borrower to elect not to restore the Property pursuant to the terms of the Ground Lease without Agent’s consent. If Mortgage Borrower shall default in the performance or observance or performance of any material term, covenant or condition of such the Ground Lease on the part of such Leasehold Mortgage Borrower, as tenant thereunder (including, without limitation, any obligations under the Ground Lease or the Agreement Concerning Interests with respect to the Ground Lease Put and the Ground Lease ROFR), and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then, without limiting the generality of the other provisions of the Pledge Agreement, this Agreement and the other Loan Documents, and without waiving or releasing Borrower from any of its obligations hereunder, Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Ground Lease on the part of Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be observed kept unimpaired and free from default. Notwithstanding the foregoing or performed (unless waived anything herein or in writing the Ground Lease or the Agreement Concerning Interests to the contrary, Borrower shall cause Mortgage Borrower to perform as required by the ground lessor Ground Lease with respect to the Ground Lease Put on or before the date that is ten (10) days prior to the date the Association (as defined in the Agreement Concerning Interests) may compel Mortgage Borrower to perform under such the Ground Lease Put on the Association’s behalf under the Agreement Concerning Interests. If the landlord under the Ground Lease shall deliver to Agent a copy of any notice of default under the Ground Lease), such notice shall constitute full protection to Agent for any reasonable action taken or omitted to be taken by Agent, in good faith, in reliance thereon. Borrower shall, or shall cause Mortgage Borrower to, exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Agent made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Agent its attorney-in-fact to exercise any such option in the name of and upon behalf of Mortgage Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Borrower will not subordinate or consent and shall not permit Mortgage Borrower to subordinate or consent to the subordination of the Ground Lease to any mortgage, security deed, lease or other interest on or in the landlord’s interest in all or any part of the Property, unless, in each such case, the written consent (not to be unreasonably withheld, conditioned or delayed) of Agent shall have been first had and obtained.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Black Creek Diversified Property Fund Inc.)
Ground Lease. (a) Borrower shall not permit any Leasehold shall:
(i) pay all rents, additional rents and other sums required to be paid by Borrower, without Lender’s prior written consent, as tenant under and pursuant to fail to exercise any option or right to renew or extend the term provisions of the applicable Ground Lease in accordance with the terms of such Ground Lease, as and shall give immediate notice to Lender thereof when such rent, additional rents and shall execute, acknowledge, deliver other sums are payable;
(ii) diligently perform and record any document requested by Lender to evidence the Lien observe all of the Mortgage other terms, covenants and conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed and observed, at least three (3) days prior to the expiration of any applicable grace period therein provided; and
(iii) promptly notify Administrative Agent of the receipt by Borrower of any written notice by the lessor under the Ground Lease to Borrower of any default by Borrower in the performance or observance of any of the material terms, covenants or conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed, and deliver to Administrative Agent a true copy of each such extended or renewed lease termnotice.
(b) Borrower shall not permit any Leasehold Borrower to waivenot, excuse, or in any way release or discharge the ground lessor under any Ground Lease of or from such ground lessor’s material obligations, covenants and/or conditions under the related Ground Lease without the prior written consent of Lender.
(c) Borrower shall not permit any Leasehold Borrower toAdministrative Agent, without Lender’s prior written consentsurrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modifysupplement, amend, supplement alter or restate, any Ground Lease. Consent to one change, modification, amendment, supplement or restatement shall not be deemed to be a waiver of amend the right to require consent to other, future or successive changes, modifications, amendments, supplements or restatements. Any acquisition of ground lessor’s interest in any Ground Lease by Mortgage Borrower, Maryland Owner or any Affiliate thereof shall be accomplished by Mortgage Borrower or Maryland Owner in such a manner so as to avoid a merger of the interests of ground lessor and ground lessee in such Ground Lease, unless consent in any material respect, either orally or in writing, and Borrower hereby assigns to such merger is granted by Lender.
(d) Borrower shall not permit any Leasehold Borrower to fail to pay any rentAdministrative Agent, additional rent or other charge payable under any Ground Lease as further security for the payment and when such rent or other charge is due (unless waived in writing by performance of the ground lessor under such Ground Lease).
(e) Borrower shall not permit to occur any event Obligations, all of default (beyond any applicable noticethe rights, grace or cure periods) by any Leasehold privileges and prerogatives of Borrower, as tenant under the related Ground Lease, to surrender the leasehold estate created by the Ground Lease or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease in any material respect, and any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease in any material respect without the prior consent of Administrative Agent shall be void and of no force and effect.
(c) If Borrower shall default in the performance or observance or performance of any material term, covenant or condition of such the Ground Lease on the part of such Leasehold Borrower, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of the Security Instrument, this Agreement and the other Loan Documents, and without waiving or releasing Borrower from any of its Obligations, Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the material terms, covenants and conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Ground Lease shall be observed kept unimpaired as a result thereof and free from default, even though the existence of such event of default or performed the nature thereof be questioned or denied by Borrower or by any party on behalf of Borrower. If Administrative Agent shall make any payment or perform any act or take action in accordance with the preceding sentence, Administrative Agent will notify Borrower of the making of any such payment, the performance of any such act or the taking of any such action. In any such event, subject to the rights of Tenants, subtenants and other occupants under the Leases or of parties to any reciprocal easement agreement, Administrative Agent and any Person designated as Administrative Agent’s agent by Administrative Agent shall have, and are hereby granted, the right to enter upon the Property at any reasonable time, on reasonable notice (unless waived in writing which may be given verbally) and from time to time for the purpose of taking any such action. Administrative Agent may pay and expend such sums of money as Administrative Agent reasonably deems necessary for any such purpose and upon so doing shall be subrogated to any and all rights of the landlord under the Ground Lease. Borrower hereby agrees to pay to Administrative Agent within five (5) days after demand, all such sums so paid and expended by Administrative Agent, together with interest thereon from the day of such payment at the Default Rate. All sums so paid and expended by Administrative Agent and the interest thereon shall be secured by the ground Security Instrument and the other Loan Documents.
(d) If the lessor under such the Ground Lease shall deliver to Administrative Agent a copy of any notice of default sent by said lessor to Borrower, as tenant under the Ground Lease), such notice shall constitute full protection to Administrative Agent for any action taken or omitted to be taken by Administrative Agent, in good faith, in reliance thereon. Borrower shall exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Administrative Agent made at any time within one (1) year prior to the last day upon which any such option may be exercised, and if Borrower shall fail to do so, Borrower hereby expressly authorizes and appoints Administrative Agent its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Borrower will not subordinate or consent to the subordination of the Ground Lease to any mortgage, security deed, lease or other interest on or in the landlord’s interest in all or any part of the Property, unless, in each such case, the written consent of Administrative Agent shall have been first had and obtained.
Appears in 1 contract
Samples: Loan and Security Agreement (Morgans Hotel Group Co.)
Ground Lease. (a) Borrower shall not permit any Leasehold Borrower, without Lender’s prior written consent, to fail to exercise any option or right to renew or extend the term of the applicable Ground Lease will comply in accordance all material respects with the terms and conditions of such the Ground Lease. Borrower will not do or permit anything to be done, and shall give immediate notice the doing of which, or refrain from doing anything, the omission of which, will impair or tend to Lender thereof and shall execute, acknowledge, deliver and record any document requested by Lender to evidence impair the Lien security of the Mortgage on such extended Property under the Ground Lease or renewed lease termwill be grounds for declaring a forfeiture of the Ground Lease.
(b) Borrower shall enforce the Ground Lease and will not permit any Leasehold Borrower to terminate, modify, cancel, change, supplement, alter or amend the Ground Lease, or waive, excuse, condone or in any way release or discharge the ground lessor lessors under each Ground Lease (individually and collectively, the "GROUND LESSOR") of or from any of the material covenants and conditions to be performed or observed by the lessors under each Ground Lease. Borrower hereby expressly covenants with Lender not to cancel, surrender, amend, modify or alter in any way the terms of the Ground Lease. Borrower hereby assigns to Lender, as further security for the payment of the Debt and for the performance and observance of the terms, covenants and conditions of the Mortgage, all of the rights, privileges and prerogatives of Borrower as tenant under the Ground Lease to surrender the leasehold estate created by the Ground Lease or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease, and any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease without the prior consent of Lender shall be void and of no force and effect.
(c) Borrower will give Lender prompt (and in all events within three (3) days) notice of any default under the Ground Lease of which it has knowledge or of the receipt by Borrower of any notice of default from such ground lessor’s material obligationsGround Lessor. Borrower will promptly (and in all events within three (3) days) furnish to Lender copies of all information furnished to Ground Lessor by the terms of the Ground Lease or the provisions of this Section. Borrower will deliver to Lender an exact copy of any notice, covenants and/or conditions communication, plan, specification or other instrument or document received or given by Borrower in any way relating to or affecting the Ground Lease which may concern or affect the estate of Ground Lessor or Borrower thereunder in or under the related Ground Lease or in the real estate thereby demised.
(d) Lender shall have the right, but not the obligation, to perform any obligations of Borrower under the terms of the Ground Lease during the continuance of a default thereunder. All costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) so incurred, shall be treated as an advance secured by the Mortgage, shall bear interest thereon at the Default Rate from the date of payment by Lender until paid in full and shall be paid by Borrower to Lender during the continuance of a default within five (5) days after demand. No performance by Lender of any obligations of Borrower shall constitute a waiver of any default arising by reason of Borrower's failure to perform the same. If Lender shall make any payment or perform any act or take action in accordance with this provision, Lender will notify Borrower of the making of any such payment, the performance of any such act, or the taking of any such action. In any such event, Lender and any person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action.
(e) To the extent permitted by law, the price payable by Borrower or any other person or entity in the exercise of any right of redemption following foreclosure of the Property shall include all rents paid and other sums advanced by Lender, together with interest thereon at the Default Rate as ground lessee under the Ground Lease, on behalf of Borrower on account of the Property.
(f) Unless Lender shall otherwise consent, the fee title and the leasehold estate in the Property shall not merge but shall always be kept separate and distinct, notwithstanding the union of said estates either in Ground Lessor or in Borrower, or in a third party, by purchase or otherwise.
(g) Upon acquisition by Borrower of the fee title or any other estate, title or interest in the Property, the Mortgage shall, automatically and without the necessity of execution of any other documents, attach to and cover and be a lien upon such other estate so acquired, and such other estate shall be considered as mortgaged, assigned and conveyed to Lender and the lien hereof spread to cover such estate with the same force and effect as though specifically herein mortgaged, assigned and conveyed. The provisions of this subsection (g) shall not apply if Lender acquires fee title to the Property unless Lender shall so elect.
(h) In the event there is a conflict between any notice sent by Ground Lessor to Borrower and Lender and any notice sent by Borrower to Lender, Lender may rely on such notice sent by Ground Lessor.
(i) Borrower shall exercise each individual option, if any, to extend or renew the term of the Ground Lease promptly (and in all events within five (5) days) after demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower to so exercise such option if Borrower fails to exercise as herein required, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
(j) Each Lease hereafter made and each renewal of any existing Lease affecting the Property shall provide that, (i) in the event of the termination of the Ground Lease, the Lease shall not terminate or be terminable by the lessee; (ii) in the event of any action for the foreclosure of the Mortgage, the Lease shall not terminate or be terminable by the lessee by reason of the termination of the Ground Lease unless the lessee is specifically named and joined in any such action and unless a judgment is obtained therein against the lessee; and (iii) in the event that the Ground Lease is terminated as aforesaid, the lessee under the Lease shall attorn to the lessor under the Ground Lease or to the purchaser at the sale of the Property on such foreclosure, as the case may be.
(k) Borrower hereby assigns, transfers and sets over to Lender all of Borrower's claims and rights to the payment of damages arising from any rejection by the Ground Lessor of the Ground Lease under the Bankruptcy Code. Borrower shall notify Lender promptly (and in any event within five (5) days) of any claim, suit action or proceeding relating to the rejection of the Ground Lease. Lender is hereby irrevocably appointed as Borrower's attorney-in-fact, coupled with an interest, with exclusive power to file and prosecute, to the exclusion of Borrower, any proofs of claim, complaints, motions, applications, notices and other documents, in any case in respect of the Ground Lessor under the Bankruptcy Code during the continuance of any default. Borrower may make any compromise or settlement in connection with such proceedings (subject to Lender's approval); provided, however, that Lender shall be authorized and entitled to compromise or settle any such proceeding if such compromise or settlement is made after the occurrence of an Event of Default. Borrower shall promptly execute and deliver to Lender any and all instruments reasonably required in connection with any such proceeding after request therefor by Lender. Except as set forth above, Borrower shall not adjust, compromise, settle or enter into any agreement with respect to such proceedings without the prior written consent of Lender.
(cl) Borrower shall not permit any Leasehold Borrower tonot, without Lender’s 's prior written consent, surrenderelect to treat the Ground Lease as terminated under Section 365(h)(1) of the Bankruptcy Code. Any such election made without Lender's prior written consent shall be void.
(m) If pursuant to Section 365(h)(2) of the Bankruptcy Code, terminateBorrower seeks to offset against the rent reserved in the Ground Lease the amount of any damages caused by the non-performance by the Ground Lessor of any of the Ground Lessor's obligations under the Ground Lease after the rejection by the Ground Lessor of the Ground Lease under the 38 Bankruptcy Code, forfeitBorrower shall, prior to effecting such offset, notify Lender of its intention to do so, setting forth the amounts proposed to be so offset and the basis therefor. If Lender has failed to object as aforesaid within ten (10) days after notice from Borrower in accordance with the first sentence of this subsection (m), Borrower may proceed to effect such offset in the amounts set forth in Borrower's notice. Neither Lender's failure to object as aforesaid nor any objection or other communication between Lender and Borrower relating to such offset shall constitute an approval of any such offset by Lender. Borrower shall indemnify and save Lender harmless from and against any and all claims, demands, actions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever (including, without limitation, reasonable attorneys' fees and disbursements) arising from or relating to any such offset by Borrower against the rent reserved in the Ground Lease.
(n) If any action, proceeding, motion or notice shall be commenced or filed in respect of Borrower or, following an Event of Default, the Property in connection with any case under the Bankruptcy Code, Lender shall have the option, to the exclusion of Borrower, exercisable upon notice from Lender to Borrower, to conduct and control any such litigation with counsel of Lender's choice. Lender may proceed in its own name or in the name of Borrower in connection with any such litigation, and Borrower agrees to execute any and all powers, authorizations, consents and other documents required by Lender in connection therewith. Borrower shall pay to Lender all costs and expenses (including, without limitation, reasonable attorneys' fees and disbursements) paid or incurred by Lender in connection with the prosecution or conduct of any such proceedings within five (5) days after notice from Lender setting forth such costs and expenses in reasonable detail. Any such costs or expenses not paid by Borrower as aforesaid shall be secured by the lien of the Mortgage, shall be added to the principal amount of the Debt and shall bear interest at the Default Rate. Borrower shall not commence any action, suit, proceeding or case, or suffer file any application or permit the surrendermake any motion, termination or forfeiture of, or change, modify, amend, supplement or restate, any Ground Lease. Consent to one change, modification, amendment, supplement or restatement shall not be deemed to be a waiver in respect of the right to require consent to other, future or successive changes, modifications, amendments, supplements or restatements. Any acquisition of ground lessor’s interest Ground Lease in any Ground Lease by Mortgage Borrower, Maryland Owner or any Affiliate thereof shall be accomplished by Mortgage Borrower or Maryland Owner in such a manner so as to avoid a merger case under the Bankruptcy Code without the prior written consent of the interests of ground lessor and ground lessee in such Ground Lease, unless consent to such merger is granted by Lender.
(do) Borrower shall immediately, after obtaining knowledge thereof, notify Lender of any filing by or against the Ground Lessor of a petition under the Bankruptcy Code. Borrower shall thereafter forthwith give written notice of such filing to Lender, setting forth any information available to Borrower as to the date of such filing, the court in which such petition was filed, and the relief sought therein. Borrower shall promptly deliver to Lender following receipt any and all notices, summonses, pleadings, applications and other documents received by Borrower in connection with any such petition and any proceedings relating thereto.
(p) If there shall be filed by or against Borrower a petition under the Bankruptcy Code, and Borrower, as the tenant under the Ground Lease, shall determine to reject the Ground Lease pursuant to Section 365(a) of the Bankruptcy Code, then Borrower shall give Lender not permit less than ten (10) days' prior written notice of the date on which Borrower shall apply to the bankruptcy court for authority to reject the Ground Lease. Lender shall have the right, but not the obligation, to serve upon Borrower within such 10-day period a notice stating that (i) Lender demands that Borrower assume and assign the Ground Lease to Lender pursuant to Section 365 of the Bankruptcy Code and (ii) Lender covenants to cure or provide adequate assurance of prompt cure of all defaults and provide adequate assurance of future performance under the Ground Lease. If Lender serves upon Borrower the notice described in the preceding sentence, Borrower shall not seek to reject the Ground Lease and shall comply with the demand provided for in clause (i) of the preceding sentence within thirty (30) days after the notice shall have been given, subject to the performance by Lender of the covenant provided for in clause (ii) of the preceding sentence.
(q) Effective upon the entry of an order for relief in respect of Borrower under the Bankruptcy Code, Borrower hereby assigns and transfers to Lender a non-exclusive right to apply to the Bankruptcy Court under Section 365(d)(4) of the Bankruptcy Code for an order extending the period during which the Ground Lease may be rejected or assumed.
(r) Borrower represents and warrants that (i) the Ground Lease may be assigned from time to time without the consent of Ground Lessor (or if such consent is required, it has properly been obtained); (ii) Borrower has the right under the Ground Lease to mortgage the Ground Lease and the leasehold estate thereby created without the prior consent of Ground Lessor of such if consent is required, it has properly been obtained; (iii) if any Leasehold default by Borrower shall occur under the Ground Lease, Lender is entitled under the Ground Lease to fail receive notice of such default from Ground Lessor and an opportunity to pay cure any rentsuch default which is susceptible of cure by Lender; (iv) if the Ground Lease is terminated by reason of a default by Borrower, Lender or its designee is entitled under the Ground Lease to enter into a new lease (the "New Lease") with Ground Lessor for the remainder of the term of the Ground Lease upon the same base rent and additional rent and other terms, covenants, conditions and agreements as are contained in the Ground Lease; (v) the Ground Lease or a supplemental agreement requires the Ground Lessor to give copies of all notices of default which are given under the Ground Lease to Borrower contemporaneously to Lender; (vi) the Ground Lease represents the entire agreement between the parties thereto and is in full force and effect and has not been modified or supplemented; (vii) the Ground Lease cannot be canceled solely by Ground Lessor and requires Borrower's consent for all material modifications; (viii) all rents (including additional rents and other charges) reserved for in the Ground Lease and payable prior to the date hereof have been paid; (ix) no party to the Ground Lease is in default of any obligation such party has thereunder and no event has occurred which, with the giving of notice or the lapse of time, or both, would constitute such a default; and (x) no notice or other charge payable written or oral communication has been provided to any party under any the Ground Lease which alleges that, as and when such rent of the date hereof, either a default exists or other charge is due (unless waived in writing by with the ground lessor passage of time will exist under the provisions of such Ground Lease).
(e) Borrower shall not permit to occur any event of default (beyond any applicable notice, grace or cure periods) by any Leasehold Borrower, as tenant under the related Ground Lease, in the observance or performance of any term, covenant or condition of such Ground Lease on the part of such Leasehold Borrower, to be observed or performed (unless waived in writing by the ground lessor under such Ground Lease).
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Ground Lease. (a) Borrower shall not permit any Leasehold Borrower, without Lender’s prior written consent, to fail to exercise any option or right to renew or extend the term of the applicable Ground Lease will comply in accordance all material respect with the terms and conditions of such the Ground Lease. Borrower will not do or permit anything to be done, and shall give immediate notice the doing of which, or refrain from doing anything, the omission of which, will impair or tend to Lender thereof and shall execute, acknowledge, deliver and record any document requested by Lender to evidence impair the Lien security of the Mortgage on such extended Property under the Ground Lease or renewed lease termwill be grounds for declaring a forfeiture of the Ground Lease.
(b) Borrower shall enforce the Ground Lease and will not permit any Leasehold Borrower to terminate, modify, cancel, change, supplement, alter or amend the Ground Lease, or waive, excuse, condone or in any way release or discharge the ground lessor lessors under any each Ground Lease (individually and collectively, the "GROUND LESSOR") of or from such ground lessor’s any of the material obligationscovenants and conditions to be performed or observed by the lessors under each Ground Lease. Borrower hereby expressly covenants with Lender not to cancel, surrender, amend, modify or alter in any way the terms of the Ground Lease. Borrower hereby assigns to Lender, as further security for the payment of the Debt and for the performance and observance of the terms, covenants and/or and conditions of the Mortgage, all of the rights, privileges and prerogatives of Borrower as tenant under the related Ground Lease to surrender the leasehold estate created by the Ground Lease or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease, and any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease without the prior written consent of LenderLender shall be void and of no force and effect.
(c) Borrower shall not permit will give Lender prompt (and in all events within three (3) days) notice of any Leasehold Borrower to, without Lender’s prior written consent, surrender, terminate, forfeit, default under the Ground Lease of which it has knowledge or suffer or permit the surrender, termination or forfeiture of, or change, modify, amend, supplement or restate, any Ground Lease. Consent to one change, modification, amendment, supplement or restatement shall not be deemed to be a waiver of the right receipt by Borrower of any notice of default from Ground Lessor. Borrower will promptly (and in all events within three (3) days) furnish to require consent Lender copies of all information furnished to otherGround Lessor by the terms of the Ground Lease or the provisions of this Section. Borrower will deliver to Lender an exact copy of any notice, future communication, plan, specification or successive changes, modifications, amendments, supplements other instrument or restatements. Any acquisition of ground lessor’s interest document received or given by Borrower in any way relating to or affecting the Ground Lease by Mortgage Borrower, Maryland Owner which may concern or any Affiliate thereof shall be accomplished by Mortgage affect the estate of Ground Lessor or Borrower thereunder in or Maryland Owner under the Ground Lease or in such a manner so as to avoid a merger of the interests of ground lessor and ground lessee in such Ground Lease, unless consent to such merger is granted by Lenderreal estate thereby demised.
(d) Lender shall have the right, but not the obligation, to perform any obligations of Borrower under the terms of the Ground Lease during the continuance of a default thereunder. All costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) so incurred, shall be treated as an advance secured by the Mortgage, shall bear interest thereon at the Default Rate from the date of payment by Lender until paid in full and shall be paid by Borrower to Lender during the continuance of a default within five (5) days after the demand. No performance by Lender of any obligations of Borrower shall not permit constitute a waver of any Leasehold default arising by reason of Borrower's failure to perform the same. If Lender shall make any payment or perform any act or take action in accordance with this provision, Lender will notify Borrower of the making of any such payment, the performance of any such act, or the taking of any such action. In any such event, Lender and any person designated by Lender shall have, and are hereby granted, the right to fail enter upon the Property at any time and from time to pay time for the purpose of taking any rent, additional rent or other charge payable under any Ground Lease as and when such rent or other charge is due (unless waived in writing by the ground lessor under such Ground Lease)action.
(e) To the extent permitted by law, the price payable by Borrower or any other person or entity in the exercise of any right or redemption following foreclosure of the Property shall not permit to occur any event of default (beyond any applicable noticeinclude all rents paid and other sums advanced by Lender, grace or cure periods) by any Leasehold Borrower, together with interest thereon at the Default Rate as tenant ground lessee under the related Ground Lease, on behalf of Borrower on account of the Property.
(f) Unless Lender shall otherwise consent, the fee title and the leasehold estate in the observance Property shall not merge but shall always be kept separate and distinct, notwithstanding the union of said estates either in Ground Lessor or performance in Borrower, or in a third party, by purchase or otherwise.
(g) Upon acquisition by Borrower of the fee title or any other estate, title or interests in the Property, the Mortgage shall, automatically and without the necessity of execution of any termother documents, covenant or condition attach to and cover and be a lien upon such other estate so acquired, and such other estate shall be considered as mortgaged, assigned and conveyed to Lender an the lien hereof spread to cover such estate with the same force and effect as though specifically herein mortgaged, assigned and conveyed. The provisions of such Ground Lease on this subsection (g) shall not apply if Lender acquires fee title to the part of such Leasehold Borrower, to be observed or performed (Property unless waived in writing by the ground lessor under such Ground Lease)Lender shall so elect.
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Ground Lease. (a) Borrower shall not permit any Leasehold (i) pay all rents, additional rents and other sums required to be paid by Borrower, without Lender’s prior written consent, as tenant under and pursuant to fail to exercise any option or right to renew or extend the term provisions of the applicable Ground Lease in accordance with the terms of such Ground Lease, (ii) diligently perform and shall give immediate observe all of the terms, covenants and conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed and observed, (iii) promptly notify Lender of the giving of any written notice by the Ground Lessor to Borrower of any default by Borrower in the performance or observance of any of the terms, covenants or conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed, and deliver to Lender thereof a true copy of each such notice within five (5) Business Days of receipt, and shall execute(iv) promptly notify Lender of any bankruptcy, acknowledge, deliver and record any document requested by Lender to evidence the Lien reorganization or insolvency of the Mortgage on Ground Lessor or of any notice thereof, and deliver to Lender a true copy of such extended or renewed lease termnotice within five (5) Business Days of Borrower’s receipt.
(b) Borrower shall not permit any Leasehold Borrower to waivenot, excuse, or in any way release or discharge the ground lessor under any Ground Lease of or from such ground lessor’s material obligations, covenants and/or conditions under the related Ground Lease without the prior written consent of Lender.
(c) Borrower shall not permit any Leasehold Borrower to, without Lender’s prior written consentsurrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modifysupplement, amend, supplement alter or restate, any Ground Lease. Consent to one change, modification, amendment, supplement or restatement shall not be deemed to be a waiver of amend the right to require consent to other, future or successive changes, modifications, amendments, supplements or restatements. Any acquisition of ground lessor’s interest in any Ground Lease by Mortgage Borrower, Maryland Owner or any Affiliate thereof shall be accomplished by Mortgage Borrower or Maryland Owner in such a manner so as to avoid a merger of the interests of ground lessor and ground lessee in such Ground Lease, unless consent either orally or in writing. Borrower hereby assigns to such merger is granted by Lender.
(d) Borrower shall not permit any Leasehold Borrower to fail to pay any rent, additional rent or as further security for the payment and performance of the obligations and for the performance and observance of the terms, covenants and conditions of the Security Instrument, this Agreement and the other charge payable under any Ground Lease as Loan Documents, all of the rights, privileges and when such rent or other charge is due (unless waived in writing by the ground lessor under such Ground Lease).
(e) Borrower shall not permit to occur any event prerogatives of default (beyond any applicable notice, grace or cure periods) by any Leasehold Borrower, as tenant under the related Ground Lease, to surrender the leasehold estate created by the Ground Lease or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease in any respect, and any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease in any respect without the prior consent of Lender shall be void and of no force and effect.
(c) If Borrower shall default in the performance or observance or performance of any term, covenant or condition of such the Ground Lease on the part of such Leasehold Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then, without limiting the generality of the other provisions of the Security Instrument, this Agreement and the other Loan Documents, and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Ground Lease on the part of Borrower to be performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Ground Lease shall be observed kept unimpaired and free from default. If the Ground Lessor shall deliver to Lender a copy of any notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or performed omitted to be taken by Lender, in good faith, in reliance thereon. Borrower shall exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (unless waived 1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in writing the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Borrower will not subordinate or consent to the subordination of the Ground Lease to any mortgage, security deed, lease or other interest on or in the landlord’s interest in all or any part of the Property, unless, in each such case, the written consent of Lender shall have been first had and obtained.
(d) Notwithstanding anything contained in the Ground Lease to the contrary, Borrower shall not further sublet any portion of the Property (other than as permitted pursuant to Section 9.3 hereof) without prior written consent of Lender. Each such sublease hereafter made shall provide that (i) in the event of the termination of the Ground Lease, upon Ground Lessor’s election, the sublease shall not terminate or be terminable by the ground lessee thereunder; (ii) in the event of any action for the foreclosure of the Security Instrument, the sublease shall not terminate or be terminable by the lessee thereunder by reason of the termination of the Ground Lease unless such lessee is specifically named and joined in any such action and unless a judgment is obtained therein against such lessee; and (iii) in the event that the Ground Lease is terminated as aforesaid, the lessee under the sublease shall attorn to the lessor under the Ground Lease or to the purchaser at the sale of the Property on such Ground Lease)foreclosure, as the case may be. In the event that any portion of the Property shall be sublet pursuant to the terms of this subsection, such sublease shall be deemed to be included in the Property.
Appears in 1 contract
Samples: Term Loan Agreement (Invesco Real Estate Income Trust Inc.)
Ground Lease. (a) Borrower shall not permit any Leasehold Borrower, without Lender’s prior written consent, to fail to exercise any option or right to renew or extend the term of the applicable Ground Lease will comply in accordance all material respects with the terms and conditions of such the Ground Lease. Borrower will not do or permit anything to be done, and shall give immediate notice the doing of which, or refrain from doing anything, the omission of which, will impair or tend to Lender thereof and shall execute, acknowledge, deliver and record any document requested by Lender to evidence impair the Lien security of the Mortgage on such extended Premises under the Ground Lease or renewed lease termwill be grounds for declaring a forfeiture of the Ground Lease.
(b) Borrower shall enforce the Ground Lease and will not permit any Leasehold Borrower to terminate, modify, cancel, change, supplement, alter or amend the Ground Lease, or waive, excuse, condone or in any way release or discharge the ground lessor under any Ground Lease Lessor of or from such ground lessorany of the material covenants and conditions to be performed or observed by Ground Lessor. Borrower does hereby bargain, sell, assign and set over to Lender, all of Borrower’s material obligationsinterests in the Ground Lease. The assignment of Borrower’s interest set forth in this Section 2.12(b) is an absolute, covenants and/or conditions under unconditional and present assignment from Borrower to Lender and not an assignment for security and the related existence or exercise of Borrower’s revocable license to take all actions with respect to the Ground Lease shall not operate to subordinate this assignment to any subsequent assignment. The exercise by Lender of any of its rights or remedies pursuant to this Section 2.12(b) shall not be deemed to make Lender a mortgagee-in-possession. So long as there is no existing or continuing Event of Default, Borrower shall have a revocable license to take all actions with respect to the Ground Lease subject to the terms of this Security Instrument. Any surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease without the prior written consent of LenderLender shall be void and of no force and effect.
(c) Lender shall have the right, but not the obligation, to perform any obligations of Borrower under the terms of the Ground Lease during the continuance of an Event of Default. All costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) so incurred, shall be treated as an advance secured by this Security Instrument, shall bear interest thereon at the Default Rate from the date of payment by Lender until paid in full and shall be paid by Borrower to Lender during the continuance of an Event of Default within five (5) Business Days after demand. No performance by Lender of any obligations of Borrower shall not permit any Leasehold Borrower to, without Lender’s prior written consent, surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modify, amend, supplement or restate, any Ground Lease. Consent to one change, modification, amendment, supplement or restatement shall not be deemed to be constitute a waiver of any Event of Default arising by reason of Borrower’s failure to perform the same. If Lender shall make any payment or perform any act or take action in accordance with this Section 2.12(c), Lender will notify Borrower of the making of any such payment, the performance of any such act, or the taking of any such action. In any such event, subject to the rights of lessees, sublessees and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to require consent enter upon the Property at any time and from time to other, future or successive changes, modifications, amendments, supplements or restatements. Any acquisition time for the purpose of ground lessor’s interest in taking any Ground Lease by Mortgage Borrower, Maryland Owner or any Affiliate thereof shall be accomplished by Mortgage Borrower or Maryland Owner in such a manner so as to avoid a merger of the interests of ground lessor and ground lessee in such Ground Lease, unless consent to such merger is granted by Lenderaction.
(d) To the extent permitted by law, the price payable by Borrower or any other Person in the exercise of any right of redemption following foreclosure of the Property shall not permit any Leasehold Borrower to fail to pay any rent, additional rent or include all rents paid and other charge payable under any Ground Lease as and when such rent or other charge is due (unless waived in writing sums advanced by the ground lessor under such Ground Lease).
(e) Borrower shall not permit to occur any event Lender on behalf of default (beyond any applicable notice, grace or cure periods) by any Leasehold Borrower, as tenant under together with interest thereon at the related Ground Lease, in the observance or performance of any term, covenant or condition of such Ground Lease on the part of such Leasehold Borrower, to be observed or performed (unless waived in writing by the ground lessor under such Ground Lease)Default Rate.
Appears in 1 contract
Samples: Deed of Trust, Security Agreement, Assignment of Rents and Fixture Filing (Pebblebrook Hotel Trust)
Ground Lease. (a) Xxxxxx Xxxxx Borrower shall not permit any Leasehold shall:
(i) pay all rents, additional rents and other sums required to be paid by Xxxxxx Xxxxx Borrower, without Lender’s prior written consent, as tenant under and pursuant to fail to exercise any option or right to renew or extend the term provisions of the applicable Ground Lease in accordance with the terms of such Ground Lease, and shall give immediate notice to Lender thereof and shall execute, acknowledge, deliver and record any document requested by Lender to evidence the Lien of the Mortgage on such extended or renewed lease term.
(b) Borrower shall not permit any Leasehold Borrower to waive, excuse, or in any way release or discharge the ground lessor under any Ground Lease of or from such ground lessor’s material obligations, covenants and/or conditions under the related Ground Lease without the prior written consent of Lender.
(c) Borrower shall not permit any Leasehold Borrower to, without Lender’s prior written consent, surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modify, amend, supplement or restate, any Ground Lease. Consent to one change, modification, amendment, supplement or restatement shall not be deemed to be a waiver of the right to require consent to other, future or successive changes, modifications, amendments, supplements or restatements. Any acquisition of ground lessor’s interest in any Ground Lease by Mortgage Borrower, Maryland Owner or any Affiliate thereof shall be accomplished by Mortgage Borrower or Maryland Owner in such a manner so as to avoid a merger of the interests of ground lessor and ground lessee in such Ground Lease, unless consent to such merger is granted by Lender.
(d) Borrower shall not permit any Leasehold Borrower to fail to pay any rent, additional rent or other charge payable under any Ground Lease as and when such rent or other charge is due payable,
(unless waived in writing ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Xxxxxx Xxxxx Borrower, as tenant thereunder, to be performed and observed prior to the expiration of any applicable grace period therein provided, and
(iii) promptly notify Agent of the giving of any written notice by the ground lessor Ground Lessor under the Ground Lease of any default by the tenant in the performance or 62383226 84 observance of any of the terms, covenants or conditions of the Ground Lease on the part of the tenant thereunder, to be performed or observed and deliver to Agent a true copy of each such Ground Lease)notice.
(eb) Xxxxxx Xxxxx Borrower shall not permit not, without the prior consent of Agent, surrender the leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or modify, change, supplement, alter or amend in any material respect the Ground Lease, either orally or in writing, and Xxxxxx Xxxxx Borrower hereby collaterally assigns to occur any event Lender, as further security for the payment of default (beyond any applicable noticethe Obligations and for the performance and observance of the terms, grace or cure periods) by any Leasehold covenants and conditions of the Loan Documents all of the rights, privileges and prerogatives of Xxxxxx Xxxxx Borrower, as tenant under the related Ground Lease. Any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, or material modification, change, supplement, alteration or amendment of the Ground Lease without the prior consent of Lender shall be void and of no force and effect.
(c) Notwithstanding the foregoing, it is expressly understood and agreed that Xxxxxx Xxxxx Borrower may enter into an agreement with Ground Lessor to extend the term of the Ground Lease; provided that (i) such extension shall be effected pursuant to an agreement reasonably approved by Agent in advance (unless such agreement does not otherwise amend, modify or supplement the terms of the Ground Lease and is limited to extending the term thereunder in which case (1) the prior approval of Agent shall not be required and (2) Borrowers shall deliver a copy of such extension agreement to Agent within ten (10) days after the execution thereof) and (ii) Borrowers shall, at Borrowers’ sole cost, execute all documents and deliver any title insurance endorsement deemed reasonably necessary by Agent to confirm that the lien of the Xxxxxx Xxxxx Mortgage remains unimpaired.
(d) If Xxxxxx Xxxxx Borrower shall default in the performance or observance or performance of any material term, covenant or condition of such the Ground Lease on the part of such Leasehold Xxxxxx Xxxxx Borrower, as the tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of the Xxxxxx Xxxxx Mortgage and this Loan Agreement and without waiving or releasing any Borrower Party from any of its obligations hereunder, Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the material terms, covenants and conditions of the Ground Lease on the part of Xxxxxx Xxxxx Borrower, as a tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Xxxxxx Xxxxx Borrower, to the end that the rights of Xxxxxx Xxxxx Borrower in, to and under the Ground Lease shall be observed kept unimpaired as a result thereof and free from default, even though the existence of such event of default or performed (unless waived the nature thereof be questioned or denied by Xxxxxx Xxxxx Borrower or by any party on behalf of Xxxxxx Xxxxx Borrower. If Agent shall make any payment or perform any act or take action in writing accordance with the preceding sentence, Agent will notify Borrowers of the making of any such payment, the performance of any such act, or the taking of any such action. If Ground Lessor shall deliver to Agent a copy of any notice of default sent by Ground Lessor to Xxxxxx Xxxxx Borrower, as tenant under the ground lessor under such Ground Lease), such notice shall constitute full protection to Agent for any action taken or omitted to be taken by Agent, in good faith, in reliance thereon. Xxxxxx Xxxxx Borrower shall not subordinate or consent to the subordination of the Ground Lease to any mortgage, security deed, lease or other interest on or in 62383226 85 the landlord’s interest in all or any part of the Xxxxxx Xxxxx Property, unless, in each such case, the written consent of Agent shall have been first had and obtained.
Appears in 1 contract
