Ground Leases. Solely with respect to Unencumbered Property, each of the Parent and the Borrower shall, and shall cause each other Loan Party to: (a) Diligently perform and observe in all material respects all of the terms, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and (b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt. (c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereon.
Appears in 14 contracts
Sources: Credit Agreement (STAG Industrial, Inc.), Term Loan Agreement (STAG Industrial, Inc.), Term Loan Agreement (STAG Industrial, Inc.)
Ground Leases. Solely with For purposes of this Exhibit B, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency (▇▇▇) or similar leases for purposes of conferring a tax abatement or other benefit. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of the Seller, its successors and shall cause each other Loan Party toassigns, the Seller represents and warrants that:
(a) Diligently perform and observe The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of any Acceptable the Ground Lease had occurred since the origination of the Mortgage Loan, except as tenant under such Acceptable Ground Lease; andreflected in any written instruments which are included in the related Mortgage File;
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by The lessor under such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to has agreed in a writing included in the Administrative Agent a true copy of each related Mortgage File (or in such notice within five (5Ground Lease) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganizationthat the Ground Lease may not be amended or modified, or insolvency canceled or terminated by agreement of lessor and lessee, without the prior written consent of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.Mortgagee;
(c) Exercise any individual option to extend or renew the term of an Acceptable The Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
(d) The Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances or (ii) is subject to a subordination, non-in-fact disturbance and attornment agreement to exercise any such option which the Mortgagee on the lessor’s fee interest in the name Mortgaged Property is subject;
(e) The Ground Lease does not place commercially unreasonably restrictions on the identity of the Mortgagee and upon behalf the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (provided that proper notice is delivered to the extent required in accordance with the Ground Lease), and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of (but with prior notice to) the lessor;
(f) The Seller has not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease. To the Seller’s knowledge, which power there is no material default under such Ground Lease and no condition that, but for the passage of attorney shall be irrevocable time or giving of notice, would result in a material default under the terms of such Ground Lease and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default Seller’s knowledge, such Ground Lease is in full force and effect as of the performance Closing Date;
(g) The Ground Lease or observance ancillary agreement between the lessor and the lessee requires the lessor to give to the Mortgagee written notice of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenantsdefault, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end provides that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any no notice of default or termination is effective against the Mortgagee unless such notice is given to the Mortgagee;
(h) The Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Acceptable the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the Mortgagee’s receipt of notice of any default before the lessor may terminate the Ground Lease;
(i) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender;
(j) Under the terms of the Ground Lease, then such notice shall constitute full protection an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the Administrative Agent ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in clause (k) below) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan documents) the Mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;
(k) In the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to the ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and
(l) Provided that the Mortgagee cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the Mortgagee upon termination of the Ground Lease for any action taken or omitted to be taken by reason, including rejection of the Administrative Agent, Ground Lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 14 contracts
Sources: Mortgage Loan Purchase Agreement (Benchmark 2023-V3 Mortgage Trust), Mortgage Loan Purchase Agreement (Benchmark 2023-B39 Mortgage Trust), Mortgage Loan Purchase Agreement (Benchmark 2023-V2 Mortgage Trust)
Ground Leases. Solely with For purposes of this Exhibit B, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency (▇▇▇) or similar leases for purposes of conferring a tax abatement or other benefit. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of the Seller, its successors and shall cause each other Loan Party toassigns, the Seller represents and warrants that:
(a) Diligently perform and observe The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of any Acceptable the Ground Lease had occurred since the origination of the Mortgage Loan, except as tenant under such Acceptable Ground Lease; andreflected in any written instruments which are included in the related Mortgage File;
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by The lessor under such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to has agreed in a writing included in the Administrative Agent a true copy of each related Mortgage File (or in such notice within five (5Ground Lease) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganizationthat the Ground Lease may not be amended or modified, or insolvency canceled or terminated by agreement of lessor and lessee, without the prior written consent of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereon.Mortgagee;
Appears in 8 contracts
Sources: Mortgage Loan Purchase Agreement (GS Mortgage Securities Trust 2020-Gsa2), Mortgage Loan Purchase Agreement (DBJPM 2020-C9 Mortgage Trust), Mortgage Loan Purchase Agreement (Benchmark 2020-B18 Mortgage Trust)
Ground Leases. Solely with For purposes of this Exhibit B, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency (▇▇▇) or similar leases for purposes of conferring a tax abatement or other benefit. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of the Seller, its successors and shall cause each other Loan Party toassigns, the Seller represents and warrants that:
(a) Diligently perform and observe The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of any Acceptable the Ground Lease had occurred since the origination of the Mortgage Loan, except as tenant under such Acceptable Ground Lease; andreflected in any written instruments which are included in the related Mortgage File;
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by The lessor under such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to has agreed in a writing included in the Administrative Agent a true copy of each related Mortgage File (or in such notice within five (5Ground Lease) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganizationthat the Ground Lease may not be amended or modified, or insolvency canceled or terminated by agreement of lessor and lessee, without the prior written consent of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.Mortgagee;
(c) Exercise any individual option to extend or renew the term of an Acceptable The Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
(d) The Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances or (ii) is subject to a subordination, non-in-fact disturbance and attornment agreement to exercise any such option which the Mortgagee on the lessor’s fee interest in the name Mortgaged Property is subject;
(e) The Ground Lease does not place commercially unreasonably restrictions on the identity of the Mortgagee and upon behalf the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (provided that proper notice is delivered to the extent required in accordance with the Ground Lease), and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of (but with prior notice to) the lessor;
(f) The Seller has not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease. To the Seller’s knowledge, which power there is no material default under such Ground Lease and no condition that, but for the passage of attorney shall be irrevocable time or giving of notice, would result in a material default under the terms of such Ground Lease and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default Seller’s knowledge, such Ground Lease is in full force and effect as of the performance Closing Date;
(g) The Ground Lease or observance ancillary agreement between the lessor and the lessee requires the lessor to give to the Mortgagee written notice of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenantsdefault, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end provides that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any no notice of default or termination is effective against the Mortgagee unless such notice is given to the Mortgagee;
(h) The Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Acceptable the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the Mortgagee’s receipt of notice of any default before the lessor may terminate the Ground Lease;
(i) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender;
(j) Under the terms of the Ground Lease, then such notice shall constitute full protection an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the Administrative Agent ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in subpart (k)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Loan Documents) the Mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;
(k) In the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to the ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and
(l) Provided that the Mortgagee cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the Mortgagee upon termination of the Ground Lease for any action taken or omitted to be taken by reason, including rejection of the Administrative Agent, Ground Lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 7 contracts
Sources: Mortgage Loan Purchase Agreement (GS Mortgage Securities Trust 2019-Gc39), Mortgage Loan Purchase Agreement (GS Mortgage Securities Trust 2019-Gc38), Mortgage Loan Purchase Agreement (GS Mortgage Securities Trust 2018-Gs10)
Ground Leases. Solely with respect (A) Each Ground Lease contains the entire agreement of the Ground Lessor and the applicable Borrower pertaining to Unencumbered Propertyeach Ground Leased Property covered thereby. The Borrowers have no estate, right, title or interest in or to the Ground Leased Properties except under and pursuant to the Ground Leases. The Borrowers have delivered true and correct copies of each of the Parent Ground Leases to Lender and the Borrower shallGround Leases have not been modified, and shall cause each other Loan Party to:amended or assigned except as set forth on SCHEDULE 4.30.
(aB) Diligently perform and observe in all material respects all To the Knowledge of the termsBorrowers, covenantseach Ground Lessor is the exclusive fee simple owner of its Ground Leased Property, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) the giving subject only to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofPermitted Encumbrances, and (ii) any bankruptcy, reorganization, or insolvency each Ground Lessor is the sole owner of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of lessor's interest in the applicable Subsidiary Guarantor’s receiptGround Lease.
(cC) Exercise There are no rights to terminate any individual option to extend or renew the term of an Acceptable Ground Lease upon demand other than any Ground Lessor's right to terminate by reason of default, casualty, condemnation or other reasons, in each case as expressly set forth in the Administrative Agent made at any time within thirty applicable Ground Lease.
(30D) days prior Each Ground Lease is in full force and effect and to the last day upon which Borrowers' Knowledge, no breach or default or event that with the giving of notice or passage of time would constitute a breach or default under any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease (a "GROUND LEASE DEFAULT") exists or has occurred on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act Borrowers or take any action as may be appropriate to cause all of the terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor any Ground Lessor under any Ground Lease. All base rent and additional rent due and payable under the Ground Leases has been paid through the date hereof and the Borrowers are not required to be performed pay any deferred or observed accrued rent after the date hereof under any of the Ground Leases. The Borrowers have not received any written notice that a Ground Lease Default has occurred or exists, or that any Ground Lessor or any third party alleges the same to have occurred or exist.
(E) The applicable Borrower set forth on behalf SCHEDULE 4.30 is the exclusive owner of such Subsidiary Guarantor, the lessee's interest under and pursuant to the end that the rights of such Subsidiary Guarantor applicable Ground Lease and has not assigned, transferred, or encumbered its interest in, to, and or under such Acceptable any Ground Lease shall be kept unimpaired (other than assignments that will terminate on or prior to Closing), except in favor of Lender pursuant to this Loan Agreement and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonother Loan Documents.
Appears in 6 contracts
Sources: Loan and Security Agreement (Lodgian Inc), Loan and Security Agreement (Lodgian Inc), Loan and Security Agreement (Lodgian Inc)
Ground Leases. Solely with respect (a) Lessee hereby acknowledges that, as to Unencumbered Propertythe Leased Property of each Leased Site or Other Interest Site, as applicable, this Agreement is subject and subordinate to all of the terms and conditions of, the applicable Ground Lease of such Leased Site or Other Interest Site, as applicable. As to any Leased Site or Other Interest Site, as applicable, neither Lessor nor any other Sprint Group Member will be deemed to have assumed any duty or obligation of the Ground Lessor under the applicable Ground Lease and will not be liable or responsible in any manner whatsoever for any failure of such Ground Lessor to perform any such duty or obligation. Lessee agrees that it will promptly pay or cause to be paid the Ground Rent under each of the Parent Ground Leases for the Leased Sites or Other Interest Sites, as applicable during the Term of this Agreement when such payments become due and payable and, if Lessee fails to pay Ground Rent under any Ground Lease on a timely basis, Lessee will be responsible for any applicable late charges, fees or interest payable to the Borrower shallGround Lessor; provided, however, that should any Ground Lessor refuse the payment of Ground Rent for an applicable Site from any Person other than Lessor or its Affiliate, as applicable, then Lessor or its Affiliate, as applicable, after written notice from Lessee of the need for payment from such Person, will promptly pay such amount, and shall cause each other Loan Party to:
(a) Diligently perform and observe in all material respects all of the terms, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to the Administrative Agent a true copy of each such notice Lessee will reimburse Lessor therefor within five (5) Business Days days after the date of Lessor's payment. Except as provided in Section 4(c), Lessee will abide by, comply in all respects with, and fully and completely perform all terms, covenants, conditions, and provisions of each Ground Lease (including, without limitation, terms, covenants, conditions, and provisions relating to maintenance, insurance and alterations) as if Lessee were the "ground lessee" under the applicable Ground Lease and, to the extent evidence of such Subsidiary Guarantor’s receipt thereofperformance must be provided to the Ground Lessor of the applicable Ground Lease, Lessee will provide such evidence to Ground Lessor. Unless otherwise directed by Lessee or upon the suspension of the limited power of attorney granted to Lessee below, neither Lessor, Sprint, nor any of their respective Affiliates shall take any actions to interfere with Lessee acting as the "ground lessee" under any Ground Leases as long as Lessee is performing its obligations with respect to Ground Leases hereunder. To the extent that any Ground Lease imposes or requires the performance of the "ground lessee" thereunder of any duty or obligation that is more stringent than or in conflict with any term, covenant, condition, or provision of this Agreement, the applicable term, covenant, condition, or provision of the Ground Lease will control and will constitute the duties and obligations of Lessee under this Agreement as to the subject matter of such term, covenant, condition, or provision. Lessee will not (and with respect to its activities on the Sprint Collocation Space, Sprint Collocator will not) engage in or permit any conduct that would: (i) constitute a breach of or default under any Ground Lease; or (ii) result in the Ground Lessor being entitled to terminate the applicable Ground Lease or to terminate Lessor's right as ground lessee under such Ground Lease, or to exercise any other rights or remedies to which the Ground Lessor may be entitled for a default or breach under the applicable Ground Lease. In no event shall Lessee have any liability to any Sprint Group Member for any breach of a Ground Lease caused by an act or omission of Lessor or any Sprint Group Member, before, on, or after the Effective Date, and Sprint Collocator hereby indemnify and hold the Lessee Indemnitees harmless from and against and in respect of any and all Claims (other than Claims, to the extent arising from actions taken by Lessee or its Affiliates) paid, suffered, incurred or sustained by any Lessee Indemnitee and in any manner arising out of, by reason of, or in connection therewith. During the Term as to any Leased Site or Other Interest Site, as applicable, and subject to Sections 4(c) and 4(f) below, Lessee agrees to exercise prior to the expiration of the applicable Ground Lease and in accordance with the provisions of the applicable Ground Lease, any and all renewal options existing as of the Effective Date and any further renewal or extension options that may be granted by any Ground Lessor after the Effective Date for any such Leased Site or Other Interest Site, as applicable, under the Ground Leases of such Leased Sites or Other Interest Sites, as applicable; provided, however, that Lessee shall not be required to exercise any Ground Lease renewal option if Sprint Collocator at the Site covered by such Ground Lease is in default of its obligations under this Agreement as to the Site beyond applicable notice and cure periods provided herein.
(b) Lessee will not be entitled to act as agent for, or otherwise on behalf of, Lessor or its Affiliates or to bind Lessor or its Affiliates in any way whatsoever in connection with any Ground Lease or otherwise except as provided in this Section 4. Lessor hereby delegates to Lessee the sole and exclusive right to perform the obligations of and assert the rights of the "ground lessee" under all Ground Leases and of the Sprint Additional Parties (or their respective Affiliates) under all Collocation Agreements with respect to Pre-Lease Sites, and to exercise all rights thereunder subject only to the other provisions of this Section 4. In accordance with the provisions of this Agreement, Lessee will have the right to review, negotiate and execute on behalf of Lessor amendments and other documentation relating to Ground Leases and to otherwise act on behalf of Lessor in dealing with the Ground Lessors under the Ground Leases, and Lessor hereby grants to Lessee a limited power of attorney and, subject to any limitation on such appointment herein, appoints Lessee as its agent and attorney to review, negotiate and execute on behalf of Lessor amendments and other documentation relating to Ground Leases and to otherwise act on behalf of Lessor in dealing with the Ground Lessors under the Ground Leases. The foregoing power of attorney and appointment are subject to the following requirements and limitations: (i) all amendments and other documentation executed by Lessee, and actions taken by Lessee on behalf of Lessor must comply in all respects with the requirements and provisions of this Agreement, (ii) upon request by Lessor, Lessee will provide Lessor with such summaries, documentation and other information relating to Lessee's negotiations and other activities pertaining to the Ground Lease and the Ground Lessors as Lessor may reasonably request, and (iiiii) the foregoing power of attorney and appointment granted herein to Lessee may be suspended by written notice from Lessor to Lessee at any bankruptcy, reorganization, time upon the occurrence of an event of default by Lessee under this Agreement or insolvency if Lessee violates or fails to comply with the foregoing requirements and limitations and until such violation or failure is cured. Lessee may use such power of the landlord under attorney to (i) negotiate and execute any Acceptable Ground Lease or renewal that is for a term of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within not more than five (5) years, which may contain successive five (5) year renewal options and otherwise shall be on commercially reasonable terms, (ii) execute other modifications, waivers and amendments to Ground Leases (including non-disturbance agreements related thereto) that are reasonably required in the normal course of business and operations of the Sites, (iii) amend, modify, enforce or waive any terms of any Collocation Agreements or enter into new site supplements or site subleases applicable to Pre-Lease Sites or (iv) enter into any collocation agreements, site supplements or site subleases out for signature on the date hereof or partially executed on the date hereof applicable to Master Lease Sites and Pre-Lease Sites. Lessor shall, from time to time and upon reasonable request from Lessee, execute documentation reasonably necessary to confirm Lessee's rights hereunder to a counterparty under a Collocation Agreement, within ten (10) Business Days of receipt of a request therefor by Lessee, provided, that Lessor and each Sprint Additional Party will not be required to obtain any new board resolutions from any Person that is a corporation or similar resolutions or approvals from any Person that is a limited liability company, partnership or trust. Lessee will, and does hereby agree to, indemnify, defend and hold the applicable Subsidiary Guarantor’s receiptSprint Indemnitees harmless from, against and in respect of any and all Claims paid, suffered, incurred or sustained by any Sprint Indemnitee and in any manner arising out of, by reason of, or in connection with all deeds and activities performed by Lessee pursuant to and under the authority granted by the power of attorney granted in this Section 4(b) (including, without limitation, a violation failure to comply with the foregoing requirements and limitations), provided, however, that such indemnity shall not be for amounts payable under a Ground Lease after the Site Expiration Outside Date, unless Lessee exercises its rights under Section 36 with respect to a Site or the terms and provisions of such Ground Lease that extends beyond the Site Expiration Outside Date are not commercially reasonable. Except as expressly provided in this Agreement, no amendment, renewal, extension or other change to any Ground Lease desired by Lessee during the Term pursuant to this Section 4 will be effected without the prior consent of Lessor, such consent not to be unreasonably withheld, conditioned or delayed. Lessor or the Sprint Additional Parties, as applicable, shall respond to any written request that they execute or consent to the execution of a Ground Lease amendment within ten (10) Business Days of written notice thereof, with a failure to respond being deemed a consent to the execution of such Ground Lease amendment by Lessee.
(c) Exercise With respect to any individual option to extend negotiations with a Ground Lessor of the terms of a renewal or renew the term extension of an Acceptable a Ground Lease upon demand (other than a renewal or extension pursuant to an option contained in such Ground Lease which Lessor is obligated to exercise pursuant to Section 4(a)), Lessee will, at Lessee's sole cost and expense, use commercially reasonable efforts to negotiate and obtain an extension or renewal of all Ground Leases of the Leased Sites and Other Interest Sites on behalf of and for the benefit of Lessor, and Lessor, if requested by Lessee, will make commercially reasonable efforts to assist Lessee in obtaining such extension or renewal; provided, however, that such renewal or extension does not impose any liability or obligation on Lessor, Sprint Collocator or any of their respective Affiliates during the Term as to the applicable Site for which Lessee is not responsible (or subsequently agrees to be responsible) under the terms of this Agreement. If, at the conclusion of any such negotiations by Lessee (a "LESSEE NEGOTIATED RENEWAL"), Lessee has obtained a proposal from the applicable Ground Lessor for the renewal or extension of such Ground Lease that provides for Renewal Ground Rent under such renewal or extension that does not exceed one hundred sixty percent (160%) of the Expiring Ground Rent, does not increase any revenue sharing thereunder and does not impose any other conditions or responsibilities on the Lessee thereunder materially more onerous than in such Ground Lease prior to the renewal thereof for such Site, Lessee agrees that Lessee will be required to accept such proposal and use commercially reasonable efforts to cause such renewal or extension to be entered into (subject to Sprint Collocator not being in default hereunder at such Site beyond applicable notice and cure periods provided herein); provided, however, that in such event the Sprint Collocation Charge payable by Sprint Collocator under this Agreement for the Sprint Collocation Space at the Site that is subject to such renewal or extension will increase during the entire period of such renewal or extension (and any subsequent renewals or extensions thereof exercised prior to the applicable Withdrawal Date) by the Administrative Agent made at amount of the Shared Ground Rent Increase Payment. If the proposed Lessee Negotiated Renewal provides for Renewal Ground Rent that exceeds one hundred sixty percent (160%) of the Expiring Ground Rent or otherwise increases any time revenue sharing thereunder or otherwise imposes any other conditions materially more onerous than those contained in such Ground Lease prior to the renewal thereof for such Site, and Lessee does not desire to accept Renewal Ground Rent, Lessee shall so notify Lessor in writing of the Renewal Ground Rent provided for in such Lessee Negotiated Renewal, and Lessor shall have right (exercisable by written notice from Lessor to Lessee within thirty (30) days after receipt of such notice from Lessee to Lessor) to either (i) require Lessee to accept such proposal and use commercially reasonable efforts to cause such Lessee Negotiated Renewal to be entered into (but only at a Renewal Ground Rent not exceeding the amount of the Renewal Ground Rent contained in the proposed Lessee Negotiated Renewal of which Lessor was so notified) or (ii) attempt to negotiate the Renewal Ground Rent for the period of such renewal or extension directly with the applicable Ground Lessor; provided, however, that in either of such events, if any renewal or extension is thereafter entered into, the Sprint Collocation Charge payable by Sprint Collocator under this Agreement for the Sprint Collocation Space at the Site that is subject to such renewal or extension will increase during the entire period of such renewal or extension (and any subsequent renewals or extensions thereof exercised prior to the last day upon which applicable Withdrawal Date) by the amount of the Shared Ground Rent Increase Payment. Lessee at any such option time may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise enter into any such option in the name renewal or extension of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable a Ground Lease on any commercially reasonable terms as it may elect. To the part extent that Lessee or any Affiliate of Lessee succeeds to the interest of any Ground Lessor in and to the Ground Lease located at any Site, upon the expiration of the term of such Subsidiary Guarantor Ground Lease (and any renewal options contained therein), the term of such Ground Lease shall fail to cure thereafter be automatically renewed for additional five (5) year terms on the same terms and conditions as the immediately preceding renewal or extension term of the Ground Lease, provided, however, that the Ground Rent thereunder shall be increased by an amount equal to the product of (x) the Ground Rent in the term then expiring and (y) a fraction (but not less than one), the numerator of which is the aggregate base Ground Rent payable during the final term of said Ground Lease (prior to renewal in accordance with this sentence) and the denominator of which is the aggregate base Ground Rent payable during the term immediately preceding the final term of said Ground Lease (prior to renewal in accordance with this sentence), assuming such terms are of equivalent length (or, if not of equivalent length, then the period over which the base Ground Rent for the expiring Ground Lease shall be calculated shall match the length of the renewal or extension, as applicable), or if such Ground Lease had only one term thereto, then the base Ground Rent shall increase during each year of the renewal or extension at the periodic escalations, if any, provided for in the immediately previous five (5) years of the term of such Ground Lease.
(d) Commencing from and after January 1, 2007, if on the date that is six (6) months prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection Ground Lease has not been renewed or extended, Lessee will so notify Lessor in writing, and Lessor, at its option, may attempt to negotiate such renewal or extension and if Lessee has not previously used commercially reasonable efforts pursuant to Section 4(c) to obtain such renewal or extension, Lessee will reimburse Lessor for its reasonable out of pocket expenses relating to such negotiation; provided, however, that Lessor will not in connection with such renewal or extension, without the Administrative Agent for approval of Lessee, agree to any action taken or omitted to be taken by the Administrative Agent, revenue sharing in good faith, in reliance thereon.excess of existing revenue sharing arrangements. If Lessor c
Appears in 6 contracts
Sources: Master Lease and Sublease (Global Signal Inc), Master Lease and Sublease (Global Signal Inc), Master Lease and Sublease (Global Signal Inc)
Ground Leases. Solely with For purposes of this Exhibit D, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency (▇▇▇) or similar leases for purposes of conferring a tax abatement or other benefit. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of the Mortgage Loan Seller, its successors and shall cause each other assigns, the Mortgage Loan Party toSeller represents and warrants that:
(a) Diligently perform and observe The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of any Acceptable the Ground Lease had occurred since the origination of the Mortgage Loan, except as tenant under such Acceptable Ground Lease; andreflected in any written instruments which are included in the related Mortgage File;
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by The lessor under such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to has agreed in a writing included in the Administrative Agent a true copy of each related Mortgage File (or in such notice within five (5Ground Lease) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganizationthat the Ground Lease may not be amended or modified, or insolvency canceled or terminated by agreement of lessor and lessee, without the prior written consent of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereon.Mortgagee;
Appears in 5 contracts
Sources: Mortgage Loan Purchase Agreement (Benchmark 2024-V8 Mortgage Trust), Mortgage Loan Purchase Agreement (Benchmark 2024-V5 Mortgage Trust), Mortgage Loan Purchase Agreement (Benchmark 2023-B38 Mortgage Trust)
Ground Leases. Solely with For purposes of this paragraph, a “ground lease” shall mean a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a Mortgage on a ground leasehold estate in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent ground lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of Seller, its successors and shall cause each other Loan Party toassigns, Seller represents and warrants that:
(a) Diligently perform and observe 1.54.1. The ground lease or a memorandum regarding such ground lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The ground lease or an estoppel or other agreement received from the ground lessor permits the interest of the lessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially and adversely affect the security provided by the related Mortgage. No material change in the terms of the ground lease had occurred since its recordation, except by any written instruments which are included in the related Mortgage Loan File;
1.54.2. The lessor under such ground lease has agreed in a writing included in the related Mortgage Loan File (or in such ground lease) that the ground lease may not be amended, modified, canceled or terminated without the prior written consent of the agent or lender (unless in connection with an amendment to correct typographical errors or are otherwise de minimis in nature) and that any such action without such consent is not binding on the agent or lender, its successors or assigns;
1.54.3. The ground lease has an original term (or an original term plus one or more optional renewal terms, covenantswhich, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofall circumstances, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either borrower or the mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
1.54.4. The ground lease is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as Permitted Liens;
1.54.5. The ground lease does not place commercially unreasonable restrictions on the identity of the mortgagee and the ground lease is assignable to the holder of the Mortgage Loan and its attorney-in-fact to exercise any successors and assigns without the consent of the lessor thereunder (provided that proper notice is delivered (if required) in accordance with such option ground lease), and in the name of and upon behalf of such Subsidiary Guarantorevent it is so assigned, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If it is further assignable by the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 holder of the terms, covenants, Mortgage Loan and conditions its successors and assigns without the consent of such Acceptable Ground Lease on (but with prior notice to) the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from defaultlessor;
1.54.6. If the landlord under The Seller has not received any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any written notice of default under or notice of termination of such Acceptable Ground Leaseground lease. To the Seller’s knowledge, then there is no default under such ground lease and no condition that, but for the passage of time or giving of notice, would result in a default under the terms of such ground lease and to the Seller’s knowledge, such ground lease is in full force and effect;
1.54.7. The ground lease or ancillary agreement between the lessor and the lessee requires the lessor to give to the agent or lender written notice of any material default, provides that no notice of default or termination is effective unless such notice shall constitute full protection is given to the Administrative Agent agent or lender;
1.54.8. The agent or lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the ground lease through legal proceedings) to cure any default under the ground lease which is curable after the agent’s or lender’s receipt of notice of any default before the lessor may terminate the ground lease;
1.54.9. The ground lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by a prudent residential mortgage lender;
1.54.10. Under the terms of the ground lease, an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than in respect of a total or substantially total loss or taking as addressed in section 1.54.11 below) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan Documents) the agent, lender or a trustee duly appointed having the right to hold and disburse such proceeds if in excess of 10% of the principal amount of the related Mortgage Loans as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;
1.54.11. Under the terms of the ground lease and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of all or substantially all of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and
1.54.12. Provided that the agent or lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with agent or lender upon termination of the ground lease for any action taken or omitted to be taken by reason, including rejection of the Administrative Agent, ground lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 5 contracts
Sources: Securities Transfer Agreement (loanDepot, Inc.), Master Repurchase Agreement (loanDepot, Inc.), Master Repurchase Agreement (loanDepot, Inc.)
Ground Leases. Solely with For purposes of this Exhibit B, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency (IDA) or similar leases for purposes of conferring a tax abatement or other benefit. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of the Seller, its successors and shall cause each other Loan Party toassigns, the Seller represents and warrants that:
(a) Diligently perform and observe The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of any Acceptable the Ground Lease had occurred since the origination of the Mortgage Loan, except as tenant under such Acceptable Ground Lease; andreflected in any written instruments which are included in the related Mortgage File;
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by The lessor under such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to has agreed in a writing included in the Administrative Agent a true copy of each related Mortgage File (or in such notice within five (5Ground Lease) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganizationthat the Ground Lease may not be amended or modified, or insolvency canceled or terminated by agreement of lessor and lessee, without the prior written consent of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.Mortgagee;
(c) Exercise any individual option to extend or renew the term of an Acceptable The Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
(d) The Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances or (ii) is subject to a subordination, non-in-fact disturbance and attornment agreement to exercise any such option which the Mortgagee on the lessor’s fee interest in the name Mortgaged Property is subject;
(e) The Ground Lease does not place commercially unreasonably restrictions on the identity of the Mortgagee and upon behalf the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (provided that proper notice is delivered to the extent required in accordance with the Ground Lease), and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of (but with prior notice to) the lessor;
(f) The Seller has not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease. To the Seller’s knowledge, which power there is no material default under such Ground Lease and no condition that, but for the passage of attorney shall be irrevocable time or giving of notice, would result in a material default under the terms of such Ground Lease and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default Seller’s knowledge, such Ground Lease is in full force and effect as of the performance Closing Date;
(g) The Ground Lease or observance ancillary agreement between the lessor and the lessee requires the lessor to give to the Mortgagee written notice of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenantsdefault, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end provides that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any no notice of default or termination is effective against the Mortgagee unless such notice is given to the Mortgagee;
(h) The Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Acceptable the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the Mortgagee’s receipt of notice of any default before the lessor may terminate the Ground Lease;
(i) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender;
(j) Under the terms of the Ground Lease, then such notice shall constitute full protection an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the Administrative Agent ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in clause (k) below) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan documents) the Mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;
(k) In the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to the ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and
(l) Provided that the Mortgagee cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the Mortgagee upon termination of the Ground Lease for any action taken or omitted to be taken by reason, including rejection of the Administrative Agent, Ground Lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 5 contracts
Sources: Mortgage Loan Purchase Agreement (Benchmark 2025-V18 Mortgage Trust), Mortgage Loan Purchase Agreement (Benchmark 2025-B41 Mortgage Trust), Mortgage Loan Purchase Agreement (Benchmark 2025-V15 Mortgage Trust)
Ground Leases. Solely with For purposes of these representations and warranties, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a Ground Leasehold estate in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of Mortgage Loan Seller, its successors and shall cause each other assigns (collectively, the “Ground Lease and Related Documents”), Mortgage Loan Party to:
Seller represents and warrants that: (aA) Diligently perform The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease and observe in all material respects all Related Documents permit the interest of the terms, covenants, lessee to be encumbered by the related Mortgage and conditions do not restrict the use of any Acceptable the 36a Review the appraisal to determine if the Mortgage Loan is secured by a Ground Lease (as tenant defined in representation and warranty 36), in whole or in part. If so, review the Title Policy and Mortgage Loan Documents for an indication that the related Mortgage does not also encumber the lessor’s fee interest in the Mortgaged Property. If such an indication exists, proceed to Tests 36b through 36r. Appraisal; Title Policy; Mortgage Loan Documents 36b Review the Title Policy and Mortgage Loan Documents for an indication that the Ground Lease or memorandum has been recorded or submitted for recordation. If such indication is found, it will be a Test pass. Title Policy; Mortgage Loan Documents 36c Review the Ground Lease and Related Documents for an indication that the interest of the lessee is permitted to be encumbered by the Mortgage and does not restrict the use of the Mortgaged Property by such lessee, its successors or assigns in a manner that would adversely affect the security provided by the Mortgage. If such indication is found, it will be a Test pass. Ground Lease and Related Documents 36d Review the MS Servicer Notices for notation that, as of the Closing Date, there was a material change in the terms of the Ground Lease since its recordation. If no such notation is found, it will be a Test pass. If such notation is found, review the Mortgage File for a MS Servicer Notices; Mortgage File related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of the Ground Lease had occurred since its recordation, except by any written instruments which are included in the related Mortgage File; (B) The lessor under such Acceptable Ground Lease has agreed in a writing included in the related Mortgage File (or in such Ground Lease and Related Documents) that the Ground Lease may not be amended, modified, canceled or terminated by agreement of lessor and lessee without the prior written consent of the Mortgagee and that any such action without such consent is not binding on the Mortgagee, its successors or assigns, provided that the Mortgagee has provided lessor with notice of its lien in accordance with the terms of the Ground Lease; and
(bC) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable The Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five has an original term (5) Business Days of such Subsidiary Guarantor’s receipt thereofor an original term plus one or more optional renewal terms, and (ii) any bankruptcywhich, reorganizationunder all circumstances, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints will be enforceable, by either the Administrative Agent as its attorney-in-fact Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to exercise a Mortgage Loan that accrues on an actual/360 basis, substantially amortizes); (D) The Ground Lease either (i) is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee modification agreement or other such option instrument is in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interestMortgage File. If the applicable Subsidiary Guarantor shall default modification agreement or instrument is in the performance Mortgage File, it will be a Test pass. 36e Review the Ground Lease and Related Documents for a provision that the Ground Lease may not be amended, modified, canceled or observance terminated without the prior written consent of the Mortgagee and that any termsuch action without such consent is not binding on the Mortgagee, covenantits successors or assigns, provided that Mortgagee has provided lessor with notice of its lien in accordance with the terms of the Ground Lease. If such a provision is found, it will be a Test pass. Ground Lease and Related Documents 36f Review the Ground Lease and Related Documents for an indication that it has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by either Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or condition of any Acceptable ten years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes). If such an indication is found, it will be a Test pass. Ground Lease on and Related Documents 36g Review the part Title Policy for an indication that the Ground Lease is either (i) is not subject to any interests, estates, liens or encumbrances superior to, or of such Subsidiary Guarantor and shall fail to cure equal priority with, the same prior to Mortgage, except for the expiration of any applicable cure period provided thereunder, then the 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 related fee interest of the termsground lessor and the Permitted Encumbrances and Title Exceptions, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereon.(ii) Title Policy; SNDA
Appears in 5 contracts
Sources: Pooling and Servicing Agreement (BMO 2025-C13 Mortgage Trust), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2025-C35), Pooling and Servicing Agreement (BBCMS Mortgage Trust 2025-C35)
Ground Leases. Solely (a) Subject to Section 7.3(b) and Section 7.3(c) below, in the event of cancellation or termination of any Ground Lease for any reason whatsoever whether voluntary or involuntary (by operation of law or otherwise) prior to the Expiration Date (other than the cancellation or termination of a Ground Lease entered into in connection with a sale-leaseback transaction by Owner (other than if such cancellation or termination resulted from User’s default under this Agreement), which cancellation or termination results in the Golf Course leased under such Ground Lease no longer being subject to this Agreement), then this Agreement shall remain in full force and effect and User’s obligation to pay each of the Golf Course Use Payments (excluding the portion of the Complimentary Golf Rounds Fee attributable to such Ground Leased Golf Course) and all Additional Charges required by this Agreement, and all other obligations of User hereunder (other than such obligations of User hereunder that concern solely the applicable Ground Leased Golf Course demised under the affected Ground Lease (including, without limitation, the obligations of User hereunder with respect to Unencumbered Property, each the portion of the Parent Complimentary Golf Rounds Fee attributable to such Ground Leased Golf Course), which, for the avoidance of doubt, shall under no circumstances include or be deemed to include the obligations of User hereunder with respect to all or any portion of the Membership Fee), shall continue unabated (and, for the avoidance of doubt, the Minimum Rounds Per Month and the Borrower shallMinimum Rounds Per Year shall each be adjusted in accordance with the Minimum Rounds Reduction Amount (and the Complimentary Golf Rounds Fee shall be re-determined in connection therewith)); provided that if Owner enters into a replacement lease with respect to the applicable Ground Leased Golf Course on substantially similar terms to those of such cancelled or terminated Ground Lease, then such replacement lease shall automatically become a Ground Lease hereunder and such Ground Leased Golf Course shall cause each other Loan Party to:
(a) Diligently perform and observe in all material respects all remain part of the termsGolf Courses hereunder. Nothing contained in this Agreement shall create, covenantsor be construed as creating, and conditions any privity of contract or privity of estate between the lessor under any Acceptable applicable Ground Lease as tenant under such Acceptable (in each case, the “Ground Lease; andLessor”) and User.
(b) Promptly notify With respect to any Ground Leased Golf Course, the Administrative Agent Ground Lease for which has an expiration date (taking into account any renewal options exercised thereunder as of (ithe Commencement Date or hereafter exercised) the giving prior to the applicable Subsidiary Guarantor of any notice of any default by Expiration Date, this Agreement shall expire solely with respect to such Subsidiary Guarantor under any Acceptable Ground Leased Golf Course concurrently with such Ground Lease expiration date (taking into account the following sentences of this Section 7.3(b)). There shall be no reduction in any of the Golf Course Use Payments by reason of such expiration with respect to, and deliver the corresponding removal from this Agreement of, any such Ground Leased Golf Course, except that the portion of the Complimentary Golf Rounds Fee attributable to such Ground Leased Golf Course shall no longer constitute a part of the Administrative Agent a true copy Golf Course Use Payments (and, for the avoidance of doubt, the Minimum Rounds Per Month and the Minimum Rounds Per Year shall each be adjusted in accordance with the Minimum Rounds Reduction Amount (and the Complimentary Golf Rounds Fee shall be re-determined in connection therewith)). Unless all of the rights to extend the terms of the Leases fail to be validly and timely exercised pursuant to Section 1.4 of each such notice within five of the Leases, Owner (5as ground lessee) Business Days of such Subsidiary Guarantor’s receipt shall be required to (at the appropriate times) exercise all renewal options contained in each Ground Lease so as to extend the term thereof, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent Owner shall provide User with a true copy of Owner’s exercise of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receiptrenewal option.
(c) Exercise Notwithstanding anything to the contrary set forth in this Agreement, in the event that, despite any individual option to extend cancellation or renew the term termination of an Acceptable any Ground Lease upon demand for any reason whatsoever whether voluntary or involuntary (by operation of law or otherwise), Owner continues to be able to make available to User use of the Administrative Agent made at any time within thirty applicable Ground Leased Golf Course demised under the affected Ground Lease for the Primary Intended Use, then all rights and obligations of Owner and User with respect to such Ground Leased Golf Course shall continue in full force and effect.
(30d) days prior to the last day upon which any such option may be exercisedNothing contained in this Agreement amends, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney or shall be irrevocable and shall be deemed construed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of amend, any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 provision of the terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonLeases.
Appears in 4 contracts
Sources: Golf Course Use Agreement (Caesars Entertainment, Inc.), Golf Course Use Agreement (Vici Properties Inc.), Golf Course Use Agreement (CAESARS ENTERTAINMENT Corp)
Ground Leases. Solely with With respect to Unencumbered any Purchased Asset where the underlying Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related underlying Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of Seller, its successors and shall cause each other Loan Party toassigns, Seller represents and warrants that:
(a) Diligently perform and observe (i) the Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction; (ii) the Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage and conditions (iii) no material change in the terms of any Acceptable the Ground Lease as tenant under such Acceptable Ground Lease; andhad occurred since its recordation, except by any written instrument which are included in the related Purchased Asset File;
(b) Promptly notify the Administrative Agent lessor under such Ground Lease has agreed in a writing included in the related Purchased Asset File (or in such Ground Lease) that the Ground Lease may not be amended or modified in any material respect, or canceled or terminated, without the prior written consent of the mezzanine lender (except termination or cancellation if (i) the giving to the applicable Subsidiary Guarantor of any notice of any a default by such Subsidiary Guarantor under any Acceptable the Ground Lease and deliver is provided to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, mezzanine lender and (ii) any bankruptcysuch default is curable by mezzanine lender as provided in the Ground Lease but remains uncured beyond the applicable cure period), reorganization, or insolvency and no such consent has been granted by Seller since the origination of the landlord under Purchased Asset except as reflected in any Acceptable Ground Lease or of any notice thereof, and deliver to written instruments which are included in the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.related Purchased Asset File;
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either the underlying Mortgagor or the mortgagee) that extends not less than 20 years beyond the stated maturity of the related Purchased Asset, or 10 years past the stated maturity if such Purchased Asset fully amortizes by the stated maturity (or with respect to a Purchased Asset that accrues on an actual 360 basis, substantially amortizes);
(d) the Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the underlying Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances, or (ii) is subject to a subordination, non-in-fact disturbance and attornment agreement to exercise any such option which the mortgagee on the lessor’s fee interest in the name underlying Mortgaged Property is subject;
(e) the Ground Lease does not place commercially unreasonable restrictions on the identity of the mortgagee and upon behalf the Ground Lease is assignable to the holder of the Purchased Asset and its successors and assigns without the consent of the lessor thereunder, and in the event it is so assigned, it is further assignable by the holder of the Purchased Asset and its successors and assigns without the consent of the lessor;
(f) Seller has not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease and, to Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease and to Seller’s knowledge, such Ground Lease is in full force and effect;
(g) the Ground Lease or ancillary agreement between the lessor and the lessee requires the lessor to give to the lender written notice of any default, and provides that no notice of default or termination is effective against the lender unless such notice is given to the lender;
(h) a lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings) to cure any default under the Ground Lease which power is curable after the lender’s receipt of attorney shall notice of any default before the lessor may terminate the Ground Lease;
(i) the Ground Lease does not impose any restrictions on subletting that would be irrevocable viewed as commercially unreasonable by a prudent commercial mortgage lender;
(j) under the terms of the Ground Lease, an estoppel or other agreement received from the ground lessor and shall the related underlying Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in Paragraph (26)(k) below) will be deemed applied either to the repair or to restoration of all or part of the related underlying Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Purchased Asset Documents) the lender or a trustee appointed by it or the ground lessor having the right to hold and disburse such proceeds as repair or restoration progresses, or, to the payment of the outstanding principal balance of the underlying Mortgage Loan, together with any accrued interest, with excess, if any, applied to the Mezzanine Loan;
(k) in the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related underlying Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related underlying Mortgaged Property to the extent not applied to restoration, will be coupled applied first, pro rata, to the payment of the outstanding principal balance of the underlying Mortgage Loan and the Purchased Asset, together with an any accrued interest; and
(l) provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the lender upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a bankruptcy proceeding. If applicable, the applicable Subsidiary Guarantor shall ground lessor consented to and acknowledged that (i) the Mezzanine Loan is permitted / approved, (ii) any foreclosure of the Mezzanine Loan and related change in ownership of the ground lessee will not require the consent of the ground lessor or constitute a default under the ground lease, (iii) copies of default notices would be sent to mezzanine lender (or, in the performance or observance of any termalternative, covenant, or condition of any Acceptable Ground Lease on the part of mortgage lender has agreed to send such Subsidiary Guarantor and shall fail notice to cure the same prior mezzanine lender pursuant to the expiration of any applicable related intercreditor agreement) and (iv) it would accept cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed from mezzanine lender on behalf of the ground lessee (or, in the alternative, mortgage lender has agreed to tender such Subsidiary Guarantor, cure on behalf of mezzanine lender pursuant to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonrelated intercreditor agreement).
Appears in 4 contracts
Sources: Omnibus Amendment to Transaction Documents and Release Agreement (BrightSpire Capital, Inc.), Ninth Omnibus Amendment to Transaction Documents and Release Agreement (BrightSpire Capital, Inc.), Tenth Omnibus Amendment to Transaction Documents (BrightSpire Capital, Inc.)
Ground Leases. Solely with respect Except as disclosed on Schedule V and except to Unencumbered Property, each the extent failure of the Parent and the Borrower shall, and shall cause each other Loan Party tosame to be true would not have a Material Adverse Effect:
(a) Diligently perform the lien of any mortgage now or hereafter placed on the fee title to the CIGNA Mortgage Loan Property is and observe will be subject and subordinate to the Ground Lease and to any New Lease (hereinafter defined); (b) if there shall be a condemnation or taking in all material respects all lieu of a condemnation of the fee title to the CIGNA Mortgage Loan Property, subject to amounts which are applied to restoration, CIGNA Mortgage Loan Borrower is entitled under the Ground Lease to receive such portion of the Award for such condemnation or taking in lieu of condemnation as equals the value of CIGNA Mortgage Loan Borrower’s estate under the Ground Lease and improvements made by CIGNA Mortgage Loan Borrower and if there shall be a casualty under a Ground Lease, either there is an obligation to use insurance proceeds for a full restoration or CIGNA Mortgage Loan Borrower is entitled to receive such portion of such proceeds as equals the value of improvements made by CIGNA Mortgage Loan Borrower; (c) CIGNA Mortgage Loan Borrower is authorized to assign its interest in any Award which CIGNA Mortgage Loan Borrower is entitled to receive pursuant to the Ground Lease; (d) the Ground Lease may be assigned from time to time without the consent of Ground Lessor and upon an assignment of CIGNA Mortgage Loan Borrower’s interest in the Ground Lease, the assignor may, by the terms of the assignment, be released from all obligations on the part of the ground lessee under the Ground Lease arising thereafter; (e) CIGNA Mortgage Loan 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; (f) CIGNA Mortgage Loan Borrower has the right to sublease or otherwise encumber, subject to matters disclosed pursuant to Schedule V without restriction, all or any part of the CIGNA Mortgage Loan Property without the consent of Ground Lessor; (h) if any default by CIGNA Mortgage Loan Borrower shall occur under the Ground Lease, any fee mortgagee is entitled under the Ground Lease to receive notice of such default from Ground Lessor and a commercially reasonable opportunity to cure any such default which is susceptible of cure by a fee mortgagee, which, in the case of any non-monetary default susceptible of cure by a fee mortgagee, includes the right of a fee mortgagee or its designee to acquire possession of the CIGNA Mortgage Loan Property by means of foreclosure of the Mortgage or by other means and to become the lessee under the related Ground Lease, and so long as such fee mortgagee has agreed to effectuate a cure and is proceeding to cure any such non-monetary default and no monetary default remains uncured beyond any applicable notice and grace periods to which CIGNA Mortgage Loan Borrower and such fee mortgagee are entitled, Ground Lessor may not terminate the related Ground Lease; (i) provided that no monetary default remains uncured beyond any applicable notice and grace periods to which CIGNA Mortgage Loan Borrower and a fee mortgagee are entitled, the Ground Lease may not be terminated by Ground Lessor by reason of any default by CIGNA Mortgage Loan Borrower which is not susceptible of cure by Lender; (j) if the Ground Lease is terminated by reason of a default by CIGNA Mortgage Loan Borrower, a fee mortgagee 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 conditions of any Acceptable Ground Lease agreements as tenant under such Acceptable are contained in the Ground Lease; and
(b) Promptly notify the Administrative Agent of (ik) the giving Ground Lease requires the Ground Lessor to give copies of all notices of default which are given under the applicable Subsidiary Guarantor of any notice of any default Ground Lease to CIGNA Mortgage Loan Borrower contemporaneously to each fee mortgagee; (l) each Ground Lease represents the entire agreement between the parties thereto and is in full force and effect and has not been modified or supplemented; (m) no Ground Lease cannot be canceled solely by such Subsidiary Guarantor under any Acceptable Ground Lessor and requires CIGNA Mortgage Loan Borrower’s consent for all modifications, amendments or restatements thereof; (n) all rents (including additional rents and other charges) reserved for in each Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days payable prior to the last day upon date hereof have been paid; (o) no party to any 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; (p) no notice or other written or oral communication has been provided to any party under the Ground Lease which alleges that, as of the date hereof, either a default exists or with the passage of time will exist under the provisions of any such option may be exercised, Ground Lease; and (q) the Ground Lessor under each applicable Subsidiary Guarantor hereby expressly authorizes and appoints of the Administrative Agent as its attorney-in-fact to exercise any such option Ground Leases is the fee owner of the underlying fee interest in the name of CIGNA Mortgage Loan Property and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable no Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent creates a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonsubleasehold interest.
Appears in 4 contracts
Sources: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Ground Leases. Solely The Mortgage Loans that are identified on the Mortgage Loan Schedule as being secured in whole or in part by a leasehold estate (a “Ground Lease”) (except with respect to Unencumbered any Mortgage Loan also secured by the related fee interest in the Mortgaged Property, each of ) satisfy the Parent and the Borrower shall, and shall cause each other Loan Party tofollowing conditions:
(a) Diligently perform and observe in all material respects all such Ground Lease or a memorandum thereof has been or will be duly recorded, or “gap” title insurance coverage insuring the recordation of same has been obtained; such Ground Lease or other agreement received by the originator of the termsMortgage Loan from the ground lessor, covenantsprovides that the interest of the lessee thereunder may be encumbered by the related Mortgage and does not restrict the current use of the related Mortgaged Property by such lessee; as of the date of origination of the Mortgage Loan, there was no material change of record in the terms of such Ground Lease with the exception of written instruments which are part of the related Mortgage File and conditions the Seller has no knowledge of any Acceptable material change in the terms of such Ground Lease as tenant under such Acceptable Ground Lease; andsince the recordation of the related Mortgage, with the exception of written instruments which are part of the related Mortgage File;
(b) Promptly notify such Ground Lease and such other agreement received by the Administrative Agent originator of the Mortgage Loan from the ground lessor are not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related fee interest and Permitted Encumbrances, and such Ground Lease and such other agreement received by the originator of the Mortgage Loan from the ground lessor are, and shall remain, prior to any mortgage or other lien upon the related fee interest (other than the Permitted Encumbrances) unless a nondisturbance agreement is obtained from the holder of any mortgage on the fee interest which is assignable to or for the benefit of the related lessee and the mortgagee under the Mortgage Loan;
(c) such Ground Lease or other agreement provides that upon foreclosure of the related Mortgage or assignment of the related Mortgagor’s interest in such Ground Lease in lieu thereof, the mortgagee under such Mortgage is entitled to become the owner of such interest upon notice to, but without the consent of, the lessor thereunder and, if such mortgagee (or any of its successors and assigns under the Mortgage) becomes the owner of such interest, such interest is further assignable by such mortgagee (or any of its successors and assigns under the Mortgage) upon notice to, but without the consent of, the lessor thereunder;
(d) (i) such Ground Lease is in full force and effect and no material default by lessee or lessor was in existence at origination or, to the Seller’s knowledge, is in existence as of the Closing Date under such Ground Lease (it being understood that any default that would reasonably be expected to result in the lessor having the right to terminate the Ground Lease shall be deemed to be material); (ii) to the Seller’s knowledge, as of the Closing Date there is no condition which, but for the passage of time or the giving of notice, would result in a default under the terms of such Ground Lease; and (iii) either such Ground Lease or a separate agreement contains the lessor’s covenant that it shall not materially amend, modify, cancel or terminate such Ground Lease without the prior written consent of the mortgagee under such Mortgage and any amendment, modification, cancellation or termination of the Ground Lease without the prior written consent of the related mortgagee, or its successors or assigns is not binding on such mortgagee, or its successors or assigns;
(e) such Ground Lease or other agreement (i) requires the lessor thereunder to give written notice of any material default by the lessee to the mortgagee under the related Mortgage, provided that such mortgagee has provided the lessor with notice of its lien in accordance with the provisions of such Ground Lease and (ii) provides that no such notice of the lessee’s default under the Ground Lease shall be effective against such mortgagee unless such notice of default has been given to such mortgagee;
(f) either (i) the giving related lessor has subordinated its interest in the related Mortgaged Property to the applicable Subsidiary Guarantor interest of the holder of the Mortgage Loan or (ii) such Ground Lease or other agreement provides that (A) the mortgagee under the related Mortgage is permitted a reasonable opportunity to cure any default under such Ground Lease which is curable, including reasonable time to gain possession of the interest of the lessee under the Ground Lease, after the receipt of notice of any such default before the lessor thereunder may terminate or cancel such Ground Lease; (B) in the case of any such default which is not curable by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to mortgagee, such mortgagee has the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofright, and (ii) any bankruptcy, reorganization, or insolvency following termination of the landlord under any Acceptable existing Ground Lease or rejection thereof by a bankruptcy trustee in a bankruptcy proceeding, to enter into a new ground lease with the lessor on substantially the same terms as the existing Ground Lease; and (C) all rights of any notice thereof, and deliver the related Mortgagor under such Ground Lease (insofar as it relates to the Administrative Agent a true copy Ground Lease) may be exercised by or on behalf of such notice within five (5) Business Days mortgagee under the related Mortgage upon foreclosure or assignment in lieu of the applicable Subsidiary Guarantor’s receipt.foreclosure;
(cg) Exercise any individual option to extend or renew the term of an Acceptable such Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms that under all circumstances may be exercised, and each will be enforceable, by the mortgagee or its assignee) which extends not less than 20 years beyond the stated maturity date of the related Mortgage Loan;
(h) under the terms of such Ground Lease and the related Mortgage, taken together, any related insurance proceeds will be applied either (A) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee under such Mortgage or trustee appointed (or consented to) by it or by the lessor having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender), or (B) to the payment in whole or in part of the outstanding principal balance of such Mortgage Loan together with any accrued and unpaid interest thereon; and
(i) such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by the Seller; such Ground Lease contains a covenant (or applicable Subsidiary Guarantor hereby expressly authorizes and appoints laws provide) that the Administrative Agent as its attorney-in-fact to exercise any such option lessor thereunder is not permitted, in the name absence of and upon behalf an uncured default, to disturb the possession, interest or quiet enjoyment of any lessee in the relevant portion of such Subsidiary GuarantorMortgaged Property subject to such Ground Lease for any reason, or in any manner, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If would materially adversely affect the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period security provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonrelated Mortgage.
Appears in 4 contracts
Sources: Mortgage Loan Purchase Agreement (Morgan Stanley Capital I Trust 2011-C3), Mortgage Loan Purchase Agreement (Morgan Stanley Capital I Trust 2011-C3), Mortgage Loan Purchase Agreement (Morgan Stanley Capital I Trust 2011-C3)
Ground Leases. Solely with For purposes of these representations and warranties, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a Ground Leasehold estate in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of Mortgage Loan Seller, its successors and shall cause each other assigns (collectively, the “Ground Lease and Related Documents”), Mortgage Loan Party to:
Seller represents and warrants that: (aA) Diligently perform The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease and observe in all material respects all Related Documents permit the interest of the terms, covenants, lessee to be encumbered by the related Mortgage and conditions do not restrict the use of any Acceptable the 36a Review the appraisal to determine if the Mortgage Loan is secured by a Ground Lease (as tenant defined in representation and warranty 36), in whole or in part. If so, review the Title Policy and Mortgage Loan Documents for an indication that the related Mortgage does not also encumber the lessor’s fee interest in the Mortgaged Property. If such an indication exists, proceed to Tests 36b through 36r. Appraisal; Title Policy; Mortgage Loan Documents 36b Review the Title Policy and Mortgage Loan Documents for an indication that the Ground Lease or memorandum has been recorded or submitted for recordation. If such indication is found, it will be a Test pass. Title Policy; Mortgage Loan Documents 36c Review the Ground Lease and Related Documents for an indication that the interest of the lessee is permitted to be encumbered by the Mortgage and does not restrict the use of the Mortgaged Property by such lessee, its successors or assigns in a manner that would adversely affect the security provided by the Mortgage. If such indication is found, it will be a Test pass. Ground Lease and Related Documents 36d Review the MS ▇▇▇▇▇▇▇▇ Notices for notation that, as of the Closing Date, there was a material change in the terms of the Ground Lease since its recordation. If no such notation is found, it will be a Test pass. If such notation is found, review the Mortgage File for a MS Servicer Notices; Mortgage File related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of the Ground Lease had occurred since its recordation, except by any written instruments which are included in the related Mortgage File; (B) The lessor under such Acceptable Ground Lease has agreed in a writing included in the related Mortgage File (or in such Ground Lease and Related Documents) that the Ground Lease may not be amended, modified, canceled or terminated by agreement of lessor and lessee without the prior written consent of the Mortgagee and that any such action without such consent is not binding on the Mortgagee, its successors or assigns, provided that the Mortgagee has provided lessor with notice of its lien in accordance with the terms of the Ground Lease; and
(bC) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable The Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five has an original term (5) Business Days of such Subsidiary Guarantor’s receipt thereofor an original term plus one or more optional renewal terms, and (ii) any bankruptcywhich, reorganizationunder all circumstances, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints will be enforceable, by either the Administrative Agent as its attorney-in-fact Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to exercise a Mortgage Loan that accrues on an actual/360 basis, substantially amortizes); (D) The Ground Lease either (i) is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee modification agreement or other such option instrument is in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interestMortgage File. If the applicable Subsidiary Guarantor shall default modification agreement or instrument is in the performance Mortgage File, it will be a Test pass. 36e Review the Ground Lease and Related Documents for a provision that the Ground Lease may not be amended, modified, canceled or observance terminated without the prior written consent of the Mortgagee and that any termsuch action without such consent is not binding on the Mortgagee, covenantits successors or assigns, provided that Mortgagee has provided lessor with notice of its lien in accordance with the terms of the Ground Lease. If such a provision is found, it will be a Test pass. Ground Lease and Related Documents 36f Review the Ground Lease and Related Documents for an indication that it has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by either Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or condition of any Acceptable ten years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes). If such an indication is found, it will be a Test pass. Ground Lease on and Related Documents 36g Review the part Title Policy for an indication that the Ground Lease is either (i) is not subject to any interests, estates, liens or encumbrances superior to, or of such Subsidiary Guarantor and shall fail to cure equal priority with, the same prior to Mortgage, except for the expiration of any applicable cure period provided thereunder, then the 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 related fee interest of the termsground lessor and the Permitted Encumbrances and Title Exceptions, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereon.(ii) Title Policy; SNDA
Appears in 4 contracts
Sources: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2025-C35), Pooling and Servicing Agreement (Bank 2025-Bnk50), Pooling and Servicing Agreement (Bank 2025-Bnk49)
Ground Leases. Solely with respect to Unencumbered Borrowing Base Property, each of the Parent and the Borrower shall, and shall cause each other Loan Party to:
(a) Diligently perform and observe in all material respects all of the terms, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor Property Owner of any notice of any default by such Subsidiary Guarantor Property Owner under any Acceptable Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary GuarantorProperty Owner’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary GuarantorProperty Owner’s receipt.;
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor Property Owner hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary GuarantorProperty Owner, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor Property Owner shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor Property Owner and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor Property Owner to be performed or observed on behalf of such Subsidiary GuarantorProperty Owner, to the end that the rights of such Subsidiary Guarantor Property Owner in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereon.
Appears in 3 contracts
Sources: Credit Agreement (American Realty Capital Trust III, Inc.), Term Loan Agreement (American Realty Capital Trust, Inc.), Term Loan Agreement (American Realty Capital Trust, Inc.)
Ground Leases. Solely with For purposes of this Exhibit B, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency (▇▇▇) or similar leases for purposes of conferring a tax abatement or other benefit. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of the Seller, its successors and shall cause each other Loan Party toassigns, the Seller represents and warrants that:
(a) Diligently perform and observe The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of any Acceptable the Ground Lease had occurred since the origination of the Mortgage Loan, except as tenant under such Acceptable Ground Lease; andreflected in any written instruments which are included in the related Mortgage File;
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by The lessor under such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to has agreed in a writing included in the Administrative Agent a true copy of each related Mortgage File (or in such notice within five (5Ground Lease) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganizationthat the Ground Lease may not be amended or modified, or insolvency canceled or terminated by agreement of lessor and lessee, without the prior written consent of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.Mortgagee;
(c) Exercise any individual option to extend or renew the term of an Acceptable The Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
(d) The Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances or (ii) is subject to a subordination, non-in-fact disturbance and attornment agreement to exercise any such option which the Mortgagee on the lessor’s fee interest in the name Mortgaged Property is subject;
(e) The Ground Lease does not place commercially unreasonably restrictions on the identity of the Mortgagee and upon behalf the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (provided that proper notice is delivered to the extent required in accordance with the Ground Lease), and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of (but with prior notice to) the lessor;
(f) The Seller has not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease. To the Seller’s knowledge, which power there is no material default under such Ground Lease and no condition that, but for the passage of attorney shall be irrevocable time or giving of notice, would result in a material default under the terms of such Ground Lease and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default Seller’s knowledge, such Ground Lease is in full force and effect as of the performance Closing Date;
(g) The Ground Lease or observance ancillary agreement between the lessor and the lessee requires the lessor to give to the Mortgagee written notice of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenantsdefault, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end provides that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any no notice of default or termination is effective against the Mortgagee unless such notice is given to the Mortgagee;
(h) The Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Acceptable the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the Mortgagee’s receipt of notice of any default before the lessor may terminate the Ground Lease;
(i) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender;
(j) Under the terms of the Ground Lease, then such notice shall constitute full protection an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the Administrative Agent ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in clause (k)) below will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan documents) the Mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;
(k) In the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to the ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and
(l) Provided that the Mortgagee cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the Mortgagee upon termination of the Ground Lease for any action taken or omitted to be taken by reason, including rejection of the Administrative Agent, Ground Lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 3 contracts
Sources: Mortgage Loan Purchase Agreement (GS Mortgage Securities Trust 2021-Gsa3), Mortgage Loan Purchase Agreement (Benchmark 2020-B21 Mortgage Trust), Mortgage Loan Purchase Agreement (GS Mortgage Securities Trust 2021-Gsa3)
Ground Leases. Solely with For purposes of this Agreement, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a Ground Leasehold estate in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of Mortgage Loan Seller, its successors and shall cause each other assigns (collectively, the “Ground Lease and Related Documents”), Mortgage Loan Party to:
Seller represents and warrants that: (aA) Diligently perform The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease and observe in all material respects all Related Documents permit the interest of the termslessee to be encumbered by the related Mortgage and do not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of any Acceptable the Ground Lease as tenant had occurred since its recordation, except by any written instruments which are included in the related Mortgage File; Exh. C-15 (B) The lessor under such Acceptable Ground Lease has agreed in a writing included in the related Mortgage File (or in such Ground Lease and Related Documents) that the Ground Lease may not be amended, modified, canceled or terminated by agreement of lessor and lessee without the prior written consent of the lender and that any such action without such consent is not binding on the lender, its successors or assigns, provided that lender has provided lessor with notice of its lien in accordance with the terms of the Ground Lease; and
(bC) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable The Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five has an original term (5) Business Days of such Subsidiary Guarantor’s receipt thereofor an original term plus one or more optional renewal terms, and (ii) any bankruptcywhich, reorganizationunder all circumstances, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either borrower or the mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes); (D) The Ground Lease either (i) is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as Permitted Encumbrances and Title Exceptions; or (ii) is the subject of a subordination, non-disturbance or attornment agreement or similar agreement to which the mortgagee on the lessor’s fee interest is subject; (E) Subject to the notice requirements of the Ground Lease and Related Documents, the Ground Lease does not place commercially unreasonable restrictions on the identity of the mortgagee and the Ground Lease is assignable to the holder of the Mortgage Loan and its attorney-in-fact to exercise any successors and assigns without the consent of the lessor thereunder (or, if such option consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated and all amounts due thereunder have been paid), and in the name event it is so assigned, it is further assignable by the holder of the Mortgage Loan and upon behalf its successors and assigns without the consent of the lessor (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated and all amounts due thereunder have been paid); (F) The Mortgage Loan Seller has not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease. To the Mortgage Loan Seller’s knowledge, which power there is no material default under such Ground Lease and no condition that, but for the passage of attorney shall be irrevocable time or giving of notice, would result in a material default under the terms of such Ground Lease and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the performance or observance Closing Date; (G) The Ground Lease and Related Documents require the lessor to give to the lender written notice of any termdefault, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the Administrative Agent shall have the right, but shall be under provides that 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 Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default or termination is effective against the lender unless such notice is given to the lender; (H) A lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Acceptable the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is Exh. C-16 curable after the lender’s receipt of notice of any default before the lessor may terminate the Ground Lease; (I) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by the Mortgage Loan Seller in connection with the origination of similar commercial or multifamily loans intended for securitization; (J) Under the terms of the Ground Lease and Related Documents, then such notice shall constitute full protection any related insurance proceeds or the portion of the condemnation award allocable to the Administrative Agent ground lessee’s interest (other than in respect of a total or substantially total loss or taking as addressed in subpart (K)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan documents) the lender or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; (K) In the case of a total or substantially total taking or loss, under the terms of the Ground Lease and Related Documents, any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and (L) Provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with lender upon termination of the Ground Lease for any action taken or omitted to be taken by reason, including rejection of the Administrative Agent, Ground Lease in good faith, in reliance thereona bankruptcy proceeding. 37.
Appears in 3 contracts
Sources: Mortgage Loan Purchase Agreement, Mortgage Loan Purchase Agreement, Mortgage Loan Purchase Agreement
Ground Leases. Solely with For purposes of this Exhibit B, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency (I▇▇) or similar leases for purposes of conferring a tax abatement or other benefit. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of the Seller, its successors and shall cause each other Loan Party toassigns, the Seller represents and warrants that:
(a) Diligently perform and observe The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of any Acceptable the Ground Lease had occurred since the origination of the Mortgage Loan, except as tenant under such Acceptable Ground Lease; andreflected in any written instruments which are included in the related Mortgage File;
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by The lessor under such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to has agreed in a writing included in the Administrative Agent a true copy of each related Mortgage File (or in such notice within five (5Ground Lease) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganizationthat the Ground Lease may not be amended or modified, or insolvency canceled or terminated by agreement of lessor and lessee, without the prior written consent of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereon.Mortgagee;
Appears in 3 contracts
Sources: Mortgage Loan Purchase Agreement (GS Mortgage Securities Trust 2020-Gsa2), Mortgage Loan Purchase Agreement (GS Mortgage Securities Trust 2020-Gc45), Mortgage Loan Purchase Agreement (GS Mortgage Securities Trust 2020-Gc45)
Ground Leases. Solely with respect to Unencumbered Property, each of the Parent and the Borrower shall, and shall cause each other Loan Party to:
(a) Diligently Borrower shall cause Mortgage Borrower to, or shall cause Mortgage Borrower to cause CPLV Tenant to, at its sole cost and expense, promptly and timely perform and observe in all the material respects all of the terms, covenants, covenants and conditions of any Acceptable required to be performed and observed by Mortgage Borrower as lessee under the Ground Lease as tenant (including, but not limited to, subject to Section 7.4 below, the payment of all rent, additional rent, percentage rent and other charges required to be paid under such Acceptable each Ground Lease; and).
(b) Promptly notify the If Mortgage Borrower or Administrative Agent receives from Ground Lessor a notice of (i) default under the giving Ground Lease, then, subject to the applicable Subsidiary Guarantor terms of the Ground Lease and the Mortgage Loan Documents, Borrower shall cause Mortgage Borrower to grant Administrative Agent the right (but not the obligation), to cause the default or defaults under the Ground Lease to be remedied and otherwise exercise any notice and all rights of Mortgage Borrower under the Ground Lease, as may be necessary to prevent or cure any default, and Administrative Agent shall have the right to enter all or any portion of the Property that is subject to the Ground Lease at such reasonable times and in such manner as Administrative Agent deems necessary (subject to the terms of the Ground Lease and the rights of the CPLV Tenant under the CPLV Lease and Tenants Leases and any third-party occupants), to prevent or to cure any such default.
(c) The actions or payments of Administrative Agent to cure any default by such Subsidiary Guarantor Mortgage Borrower under any Acceptable the Ground Lease shall not remove or waive, as between Borrower and deliver to Administrative Agent, the default that occurred under this Agreement by virtue of the default by Mortgage Borrower under the Ground Lease. All sums expended by Administrative Agent a true copy of each to cure any such notice default shall be paid by Borrower to Administrative Agent, within five (5) Business Days of demand, with interest on such Subsidiary Guarantorsum at the rate set forth in this Agreement from the date of such demand to and including the date the reimbursement payment is made to Administrative Agent. All such indebtedness shall be deemed to be secured by the Pledge Agreement.
(d) Borrower shall notify Administrative Agent promptly in writing of it becoming aware of the occurrence of any default by Ground Lessor under the Ground Lease (beyond all applicable notice and cure periods thereunder) or following the receipt by Borrower or Mortgage Borrower of any written notice from Ground Lessor under the Ground Lease noting or claiming the occurrence of any default by Mortgage Borrower under the Ground Lease or the occurrence of any event that, with the passage of time or service of notice, or both, would constitute a default by Mortgage Borrower under the Ground Lease. Borrower shall promptly deliver to Administrative Agent a copy of any such written notice of default.
(e) Within ten (10) days after receipt of written demand by Administrative Agent, Borrower shall cause Mortgage Borrower to use commercially reasonable efforts to obtain from Ground Lessor under the Ground Lease and furnish to Administrative Agent the estoppel certificate of Ground Lessor stating the date through which rent has been paid and whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any; provided that Administrative Agent shall not make such demand more than once in any twelve (12) month period unless an Event of Default is continuing.
(f) Borrower shall, or shall cause Mortgage Borrower to, promptly execute, acknowledge and deliver to Administrative Agent such instruments as may be reasonably required to permit Administrative Agent to cure any default under the Ground Lease in accordance with the terms of this Agreement or permit Administrative Agent to take such other action required to enable Administrative Agent to cure or remedy the matter in default and preserve the security interest of Collateral Agent under the Loan Documents with respect to the Property. Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, during the continuance of an Event of Default, any and all acts and to execute any and all documents that are necessary to preserve any rights of Mortgage Borrower under or with respect to the Ground Lease, including, without limitation, the right to effectuate any extension or renewal of the Ground Lease, or to preserve any rights of Mortgage Borrower whatsoever in respect of any part of the Ground Lease (and the above powers granted to Administrative Agent are coupled with an interest and shall be irrevocable), provided, except in the event of imminent damage to the Property or imminent danger of the termination or loss of the Ground Lease, Administrative Agent shall not make or execute any such documents under such power until three (3) days after notice has been given to Borrower by Lender of Lender’s receipt thereof, and intent to exercise its rights under such power.
(g) Notwithstanding anything to the contrary contained in this Agreement with respect to the Ground Lease:
(i) [Reserved].
(ii) any bankruptcyBorrower shall not permit Mortgage Borrower to, reorganizationwithout Administrative Agent’s written consent, or insolvency elect to treat the Ground Lease as terminated under Subsection 365(h)(l) of the landlord under Bankruptcy Code. Any such election made without Administrative Agent’s prior written consent shall be void.
(iii) As security for the Debt, Borrower unconditionally assigns, transfers and sets over to Lender all of Borrower’s claims and rights, if any Acceptable (which, for the avoidance of doubt, are separate and distinct from Mortgage Borrower’s claims and rights, which claims and rights of Mortgage Borrower are assigned, transferred, and set over to Mortgage Lender pursuant to the terms of the Mortgage Loan Agreement), to the payment of damages arising from any rejection of the Ground Lease by the lessor under the Bankruptcy Code. Administrative Agent and Borrower shall proceed jointly or in the name of Borrower in respect of any notice thereofclaim, suit, action or proceeding relating to the rejection of the Ground Lease, including, without limitation, the right to file and prosecute any proofs of claim, complaints, motions, applications, notices and other documents in any case in respect of lessor under the Bankruptcy Code. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and deliver shall continue in effect until all of the Debt shall have been satisfied and discharged in full. Any amounts received by Administrative Agent or Borrower as damages arising out of the rejection of the Ground Lease as aforesaid shall be applied to all out-of-pocket costs and expenses of Administrative Agent (including, without limitation, reasonable attorney’s fees and costs) incurred in connection with the exercise of any of its rights or remedies in accordance with the applicable provisions of this Agreement.
(iv) If, pursuant to Subsection 365(h) of the Bankruptcy Code, Mortgage Borrower seeks to offset, against the rent reserved in the Ground Lease, the amount of any damages caused by the nonperformance by the lessor of any of its obligations thereunder after the rejection by lessor of the Ground Lease under the Bankruptcy Code, then Mortgage Borrower shall not effectuate any offset of the amounts so objected to by Administrative Agent. If Administrative Agent has failed to object as aforesaid within ten (10) days after notice from Mortgage Borrower in accordance with the first sentence of this subsection, Borrower may proceed to offset the amounts set forth in Mortgage Borrower’s notice.
(v) If any action, proceeding, motion or notice shall be commenced or filed in respect of any lessor of all or any part of the Property in connection with any case under the Bankruptcy Code, to the extent involving Borrower, as opposed to Mortgage Borrower, Administrative Agent a true copy of and Borrower shall cooperatively conduct and control any such notice litigation with counsel agreed upon between Borrower and Administrative Agent in connection with such litigation. Borrower shall, within five (5) Business Days of written demand, pay to Administrative Agent all costs and expenses (including attorneys’ fees and costs) incurred in connection with the applicable Subsidiary Guarantor’s receiptcooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be secured by the Lien of the Pledge Agreement.
(cvi) Exercise Borrower shall or shall cause Mortgage Borrower to, upon obtaining notice or knowledge, notify Administrative Agent of any individual option to extend filing by or renew against the term of an Acceptable lessor under the Ground Lease upon demand by of a petition under the Bankruptcy Code, 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 in such filing. Borrower shall deliver to Administrative Agent made at any time within thirty (30) days prior to the last day upon which and all notices, summonses, pleadings, applications and other documents received by Borrower or Mortgage Borrower in connection with any such option may be exercisedpetition and any proceedings relating to such petition.
(h) If Administrative Agent, its nominee, designee, successor, or assignee acquires title and/or rights of Borrower’s indirect interest in the Ground Lease by reason of foreclosure of the Lien of the Pledge Agreement, assignment in lieu of foreclosure or otherwise, such party shall (x) succeed to all of the rights of and benefits accruing to Borrower under the Ground Lease, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact (y) be entitled to exercise any all of the rights and benefits accruing to Borrower under the Ground Lease. At such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the time as Administrative Agent shall have the rightrequest, but shall be under no obligation, Borrower agrees to pay any sums execute and to perform any act or take any action as may be appropriate deliver and use commercially reasonable efforts to cause all of the terms, covenants, any third party to execute and conditions of deliver to Administrative Agent such Acceptable Ground Lease on the part of such Subsidiary Guarantor documents as Administrative Agent and its counsel may require in order to be performed or observed on behalf of such Subsidiary Guarantor, to the end insure that the rights provisions of such Subsidiary Guarantor inthis Section will be validly and legally enforceable and effective against Borrower and all parties claiming by, tothrough, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonagainst Borrower.
Appears in 3 contracts
Sources: Mezzanine Loan Agreement (Vici Properties Inc.), Mezzanine Loan Agreement (Vici Properties Inc.), Mezzanine Loan Agreement (Vici Properties Inc.)
Ground Leases. Solely with respect to Unencumbered Borrowing Base Property, each of the Parent and the Borrower shall, and shall cause each other Loan Party to:
(a) Diligently perform and observe in all material respects all of the terms, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor Mortgagor of any notice of any default by such Subsidiary Guarantor Mortgagor under any Acceptable Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary GuarantorMortgagor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary GuarantorMortgagor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor Mortgagor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary GuarantorMortgagor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor Mortgagor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor Mortgagor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor Mortgagor to be performed or observed on behalf of such Subsidiary GuarantorMortgagor, to the end that the rights of such Subsidiary Guarantor Mortgagor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereon.
Appears in 3 contracts
Sources: Credit Agreement (American Realty Capital Properties, Inc.), Credit Agreement (STAG Industrial, Inc.), Credit Agreement (STAG Industrial, Inc.)
Ground Leases. Solely with For purposes of this Exhibit B, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency (▇▇▇) or similar leases for purposes of conferring a tax abatement or other benefit. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of the Seller, its successors and shall cause each other Loan Party toassigns, the Seller represents and warrants that:
(a) Diligently perform and observe The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of any Acceptable the Ground Lease had occurred since the origination of the Mortgage Loan, except as tenant under such Acceptable Ground Lease; andreflected in any written instruments which are included in the related Mortgage File;
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by The lessor under such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to has agreed in a writing included in the Administrative Agent a true copy of each related Mortgage File (or in such notice within five (5Ground Lease) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganizationthat the Ground Lease may not be amended or modified, or insolvency canceled or terminated by agreement of lessor and lessee, without the prior written consent of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.Mortgagee;
(c) Exercise any individual option to extend or renew the term of an Acceptable The Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
(d) The Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances or (ii) is subject to a subordination, non-in-fact disturbance and attornment agreement to exercise any such option which the Mortgagee on the lessor’s fee interest in the name Mortgaged Property is subject;
(e) The Ground Lease does not place commercially unreasonably restrictions on the identity of the Mortgagee and upon behalf the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (provided that proper notice is delivered to the extent required in accordance with the Ground Lease), and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of (but with prior notice to) the lessor;
(f) The Seller has not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease. To the Seller’s knowledge, which power there is no material default under such Ground Lease and no condition that, but for the passage of attorney shall be irrevocable time or giving of notice, would result in a material default under the terms of such Ground Lease and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default Seller’s knowledge, such Ground Lease is in full force and effect as of the performance Closing Date;
(g) The Ground Lease or observance ancillary agreement between the lessor and the lessee requires the lessor to give to the Mortgagee written notice of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenantsdefault, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end provides that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any no notice of default or termination is effective against the Mortgagee unless such notice is given to the Mortgagee;
(h) The Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Acceptable the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the Mortgagee’s receipt of notice of any default before the lessor may terminate the Ground Lease;
(i) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender;
(j) Under the terms of the Ground Lease, then such notice shall constitute full protection an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the Administrative Agent ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in subpart (k)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan documents) the Mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;
(k) In the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to the ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and
(l) Provided that the Mortgagee cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the Mortgagee upon termination of the Ground Lease for any action taken or omitted to be taken by reason, including rejection of the Administrative Agent, Ground Lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 3 contracts
Sources: Mortgage Loan Purchase Agreement (GS Mortgage Securities Trust 2019-Gsa1), Mortgage Loan Purchase Agreement (GS Mortgage Securities Trust 2019-Gsa1), Mortgage Loan Purchase Agreement (GS Mortgage Securities Trust 2019-Gc40)
Ground Leases. Solely with For purposes of this Exhibit D, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency (IDA) or similar leases for purposes of conferring a tax abatement or other benefit. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of the Mortgage Loan Seller, its successors and shall cause each other assigns, the Mortgage Loan Party toSeller represents and warrants that:
(a) Diligently perform and observe The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of any Acceptable the Ground Lease had occurred since the origination of the Mortgage Loan, except as tenant under such Acceptable Ground Lease; andreflected in any written instruments which are included in the related Mortgage File;
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by The lessor under such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to has agreed in a writing included in the Administrative Agent a true copy of each related Mortgage File (or in such notice within five (5Ground Lease) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganizationthat the Ground Lease may not be amended or modified, or insolvency canceled or terminated by agreement of lessor and lessee, without the prior written consent of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereon.Mortgagee;
Appears in 2 contracts
Sources: Mortgage Loan Purchase Agreement (Benchmark 2025-V17 Mortgage Trust), Mortgage Loan Purchase Agreement (Benchmark 2024-V11 Mortgage Trust)
Ground Leases. Solely with With respect to Unencumbered Property, each Mortgage Loan that is secured in whole or in part by the interest of the Parent Mortgagor as a lessee under a ground lease of the related Mortgaged Property (a “Ground Lease”) and the Borrower shall, and shall cause each other Loan Party tonot by a fee interest in such Mortgaged Property:
(a) Diligently perform The Mortgagor is the owner of a valid and observe in all material respects all of the terms, covenants, and conditions of any Acceptable Ground Lease subsisting interest as tenant under such Acceptable the Ground Lease;
(b) The Ground Lease is in full force and effect, unmodified and not supplemented by any writing or otherwise;
(c) The Mortgagor is not in default under any of the terms thereof and there are no circumstances which, with the passage of time or the giving of notice or both, would constitute an event of default thereunder;
(d) The lessor under the Ground Lease is not in default under any of the terms or provisions thereof on the part of the lessor to be observed or performed;
(e) The term of the Ground Lease exceeds the maturity date of the related Mortgage Loan by at least five years;
(f) The Ground Lease or a memorandum thereof has been recorded and by its terms permits the leasehold estate to be mortgaged. The Ground Lease grants any leasehold mortgagee standard protection necessary to protect the security of a leasehold mortgagee;
(g) The Ground Lease does not contain any default provisions that could give rise to forfeiture or termination of the Ground Lease except for the non-payment of the Ground Lease rents;
(h) The execution, delivery and performance of the Mortgage do not require the consent (other than those consents which have been obtained and are in full force and effect) under, and will not contravene any provision of or cause a default under, the Ground Lease;
(i) The Ground Lease provides that the leasehold can be transferred, mortgaged and sublet an unlimited number of times either without restriction or on payment of a reasonable fee and delivery of reasonable documentation to the lessor;
(j) The Mortgagor has not commenced any action or given or received any notice for the purpose of terminating the Ground Lease;
(k) No lessor, as debtor in possession or by a trustee for such lessor has give any notice of, and the Mortgagor has not consented to, any attempt to transfer the related Mortgaged Property free and clear of such Ground Lease under section 363(f) of the Bankruptcy Code; and
(bl) Promptly notify the Administrative Agent of (i) the giving No lessor is subject to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any voluntary or involuntary bankruptcy, reorganization, reorganization or insolvency of the landlord under proceeding and no Mortgaged Property is an asset in any Acceptable Ground Lease voluntary or of any notice thereofinvoluntary bankruptcy, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receiptreorganization or insolvency proceeding.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereon.
Appears in 2 contracts
Sources: Master Mortgage Loan Purchase and Servicing Agreement (Citigroup Mortgage Loan Trust 2007-Ar1), Master Mortgage Loan Purchase and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-Ar6)
Ground Leases. Solely (A) With respect to each Ground Lease (or, with respect to Unencumbered Propertythe AT&T Sites, each of the Parent AT&T Sublease between AT&T and the Borrower shall, and shall cause each other Loan Party toapplicable Borrower) encumbered by a Deed of Trust:
(a) Diligently perform and observe in all material respects all of the terms, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable The Ground Lease and deliver any easements appurtenant or related thereto contain the entire agreement of the Ground Lessor and the applicable Borrower pertaining to the Administrative Agent Ground Lease Site covered thereby. The Borrowers have no estate, right, title or interest in or to the Ground Lease Site except under and pursuant to the Ground Lease and any easements appurtenant or related thereto. The Ground Lease has not been modified, amended or assigned except as set forth therein or in a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and separate agreement with respect thereto.
(ii) any bankruptcyThere are no rights of Ground Lessor to terminate the Ground Lease other than the Ground Lessor’s right to terminate by reason of default, reorganizationcasualty, condemnation or insolvency of other reasons, in each case as expressly set forth in the landlord under any Acceptable applicable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the as provided by applicable Subsidiary Guarantor’s receiptlaw.
(ciii) Exercise any individual option to extend or renew the term of an Acceptable The Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercisedis in full force and effect, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints no breach or default or event that with the Administrative Agent as its attorney-in-fact to exercise any such option in giving of notice or passage of time would constitute a breach or default under the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease (a “Ground Lease Default”) exists on the part of such Subsidiary Guarantor and shall fail to cure the same prior Borrowers or, to the expiration of any applicable cure period provided thereunderBorrowers’ Knowledge, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantorthe Ground Lessor under the Ground Lease, except to the end extent such Ground Lease Default would not be reasonably likely to have a Material Adverse Effect. The Borrowers have not received any written notice that a Ground Lease Default exists, or that the rights Ground Lessor or any third party alleges the same to exist that would, in either case, be reasonably likely to have a Material Adverse Effect.
(iv) The applicable Borrower is the exclusive owner of such Subsidiary Guarantor the lessee’s interest under and pursuant to the applicable Ground Lease and has not assigned, transferred, or encumbered its interest in, to, and or under such Acceptable the Ground Lease shall be kept unimpaired (other than assignments that will terminate on or prior to Closing), except in favor of Lender pursuant to this Loan Agreement and free from default. If the landlord under any Acceptable other Loan Documents.
(v) Except for the Permitted Encumbrances, the applicable Borrower’s interests in the Ground Lease shall deliver is not subject to any liens or encumbrances superior to, or of equal priority with, the Administrative Agent related Deed of Trust unless a copy non-disturbance agreement has been obtained from the applicable holder of any notice of default under such Acceptable lien or encumbrance.
(vi) The Ground Lease, then such notice shall constitute full protection Lease does not impose restrictions on subletting that would be reasonably likely to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereoncause a Material Adverse Effect.
Appears in 2 contracts
Sources: Loan and Security Agreement (American Tower Corp /Ma/), Loan and Security Agreement (American Tower Corp /Ma/)
Ground Leases. Solely with For purposes of this Exhibit B, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency (▇▇▇) or similar leases for purposes of conferring a tax abatement or other benefit. With respect to Unencumbered any GSMC Mortgage Loan where the GSMC Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of the Seller, its successors and shall cause each other Loan Party toassigns, the Seller represents and warrants that:
(a) Diligently perform and observe The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of any Acceptable the Ground Lease had occurred since the origination of the GSMC Mortgage Loan, except as tenant under such Acceptable Ground Lease; andreflected in any written instruments which are included in the related Mortgage File;
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by The lessor under such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to has agreed in a writing included in the Administrative Agent a true copy of each related Mortgage File (or in such notice within five (5Ground Lease) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganizationthat the Ground Lease may not be amended or modified, or insolvency canceled or terminated by agreement of lessor and lessee, without the prior written consent of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.Mortgagee;
(c) Exercise any individual option to extend or renew the term of an Acceptable The Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related GSMC Mortgage Loan, or 10 years past the stated maturity if such GSMC Mortgage Loan fully amortizes by the stated maturity (or with respect to a GSMC Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
(d) The Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances or (ii) is subject to a subordination, non-in-fact disturbance and attornment agreement to exercise any such option which the Mortgagee on the lessor’s fee interest in the name Mortgaged Property is subject;
(e) The Ground Lease does not place commercially unreasonably restrictions on the identity of the Mortgagee and upon behalf the Ground Lease is assignable to the holder of the GSMC Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (provided that proper notice is delivered to the extent required in accordance with the Ground Lease), and in the event it is so assigned, it is further assignable by the holder of the GSMC Mortgage Loan and its successors and assigns without the consent of (but with prior notice to) the lessor;
(f) The Seller has not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease. To the Seller’s knowledge, which power there is no material default under such Ground Lease and no condition that, but for the passage of attorney shall be irrevocable time or giving of notice, would result in a material default under the terms of such Ground Lease and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default Seller’s knowledge, such Ground Lease is in full force and effect as of the performance Closing Date;
(g) The Ground Lease or observance ancillary agreement between the lessor and the lessee requires the lessor to give to the Mortgagee written notice of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenantsdefault, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end provides that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any no notice of default or termination is effective against the Mortgagee unless such notice is given to the Mortgagee;
(h) The Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Acceptable the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the Mortgagee’s receipt of notice of any default before the lessor may terminate the Ground Lease;
(i) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender;
(j) Under the terms of the Ground Lease, then such notice shall constitute full protection an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the Administrative Agent ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in subpart (k)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Loan Documents) the Mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the GSMC Mortgage Loan, together with any accrued interest;
(k) In the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to the ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the GSMC Mortgage Loan, together with any accrued interest; and
(l) Provided that the Mortgagee cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the Mortgagee upon termination of the Ground Lease for any action taken or omitted to be taken by reason, including rejection of the Administrative Agent, Ground Lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 2 contracts
Sources: Mortgage Loan Purchase Agreement (JPMDB Commercial Mortgage Securities Trust 2020-Cor7), Mortgage Loan Purchase Agreement (Benchmark 2018-B8 Mortgage Trust)
Ground Leases. Solely with With respect to Unencumbered any Purchased Asset where the underlying Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related underlying Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of Seller, its successors and shall cause each other Loan Party toassigns, Seller represents and warrants that:
(a) Diligently perform and observe (i) the Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction; (ii) the Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage and conditions (iii) no material change in the terms of any Acceptable the Ground Lease as tenant under such Acceptable Ground Lease; andhad occurred since its recordation, except by any written instrument which are included in the related Purchased Asset File;
(b) Promptly notify the Administrative Agent lessor under such Ground Lease has agreed in a writing included in the related Purchased Asset File (or in such Ground Lease) that the Ground Lease may not be amended or modified in any material respect, or canceled or terminated, without the prior written consent of the mezzanine lender (except termination or cancellation if (i) the giving to the applicable Subsidiary Guarantor of any notice of any a default by such Subsidiary Guarantor under any Acceptable the Ground Lease and deliver is provided to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, mezzanine lender and (ii) any bankruptcysuch default is curable by mezzanine lender as provided in the Ground Lease but remains uncured beyond the applicable cure period), reorganization, or insolvency and no such consent has been granted by Seller since the origination of the landlord under Purchased Asset except as reflected in any Acceptable Ground Lease or of any notice thereof, and deliver to written instruments which are included in the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.related Purchased Asset File;
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either the underlying Mortgagor or the mortgagee) that extends not less than 20 years beyond the stated maturity of the related Purchased Asset, or 10 years past the stated maturity if such Purchased Asset fully amortizes by the stated maturity (or with respect to a Purchased Asset that accrues on an actual 360 basis, substantially amortizes);
(d) the Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the underlying Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances, or (ii) is subject to a subordination, non-in-fact disturbance and attornment agreement to exercise any such option which the mortgagee on the lessor’s fee interest in the name underlying Mortgaged Property is subject;
(e) the Ground Lease does not place commercially unreasonable restrictions on the identity of the mortgagee and upon behalf the Ground Lease is assignable to the holder of the Purchased Asset and its successors and assigns without the consent of the lessor thereunder, and in the event it is so assigned, it is further assignable by the holder of the Purchased Asset and its successors and assigns without the consent of the lessor;
(f) Seller has not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease and, to Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease and to Seller’s knowledge, such Ground Lease is in full force and effect;
(g) the Ground Lease or ancillary agreement between the lessor and the lessee requires the lessor to give to the lender written notice of any default, and provides that no notice of default or termination is effective against the lender unless such notice is given to the lender;
(h) a lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings) to cure any default under the Ground Lease which power is curable after the lender’s receipt of attorney shall notice of any default before the lessor may terminate the Ground Lease;
(i) the Ground Lease does not impose any restrictions on subletting that would be irrevocable viewed as commercially unreasonable by a prudent commercial mortgage lender;
(j) under the terms of the Ground Lease, an estoppel or other agreement received from the ground lessor and shall the related underlying Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in Paragraph (34)(k) below) will be deemed applied either to the repair or to restoration of all or part of the related underlying Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Purchased Asset Documents) the lender or a trustee appointed by it having the right to hold and disburse such proceeds as repair and restoration progresses, or, to the payment of the outstanding principal balance of the underlying Mortgage Loan, together with any accrued interest, with excess, if any, applied to the Mezzanine Loan;
(k) in the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related underlying Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related underlying Mortgaged Property to the extent not applied to restoration, will be coupled applied first, pro rata, to the payment of the outstanding principal balance of the underlying Mortgage Loan and the Purchased Asset, together with an any accrued interest; and
(l) provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the lender upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a bankruptcy proceeding. If applicable, the applicable Subsidiary Guarantor shall ground lessor consented to and acknowledged that (i) the Mezzanine Loan is permitted / approved, (ii) any foreclosure of the Mezzanine Loan and related change in ownership of the ground lessee will not require the consent of the ground lessor or constitute a default under the ground lease, (iii) copies of default notices would be sent to mezzanine lender (or, in the performance or observance of any termalternative, covenant, or condition of any Acceptable Ground Lease on the part of mortgage lender has agreed to send such Subsidiary Guarantor and shall fail notice to cure the same prior mezzanine lender pursuant to the expiration of any applicable related intercreditor agreement) and (iv) it would accept cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed from mezzanine lender on behalf of the ground lessee (or, in the alternative, mortgage lender has agreed to tender such Subsidiary Guarantor, cure on behalf of mezzanine lender pursuant to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonrelated intercreditor agreement).
Appears in 2 contracts
Sources: Master Repurchase Agreement (KKR Real Estate Finance Trust Inc.), Master Repurchase Agreement (KKR Real Estate Finance Trust Inc.)
Ground Leases. Solely with respect to Unencumbered Property, each of the Parent and the Borrower shall, and shall cause each other Loan Party to:
(a) Diligently perform and observe in all material respects all of the terms, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) The Ground Leases contain the giving entire agreement of the Ground Lessor and the applicable Loan Party pertaining to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Borrowing Base Asset that is subject to a Ground Lease and deliver satisfy the requirements of this Agreement to be a Ground Lease. The Loan Parties have no estate, right, title or interest in or to any Borrowing Base Asset subject to a Ground Lease except under and pursuant to the applicable Ground Leases. The Loan Parties have delivered a true and correct copy of the Ground Leases (together with all modification and/or assignment documents) to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofand the Ground Leases have not otherwise been modified, and amended or assigned.
(ii) any bankruptcyTo the knowledge of each Loan Party, reorganizationthe applicable Ground Lessor is the exclusive fee simple owner of its Borrowing Base Asset, or insolvency subject to a Ground Lease, subject only to the Ground Lease and Liens described in clauses (a), (b), (d) and (e) of the landlord under any Acceptable Ground Lease or definition of any notice thereofPermitted Liens, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days applicable Ground Lessor is the sole owner of the lessor’s interest in the applicable Subsidiary Guarantor’s receiptGround Lease.
(ciii) Exercise any individual option There are no rights to extend or renew the term of an Acceptable terminate a Ground Lease upon demand other than the Ground Lessor’s right to terminate by reason of default, casualty, condemnation or other reasons, in each case as expressly set forth in the Administrative Agent made at any time within thirty applicable Ground Lease.
(30iv) days prior Each Ground Lease is in full force and effect and, to the last day upon which any such option may be exercisedknowledge of each Loan Party, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints no breach or default or event that with the Administrative Agent as its attorney-in-fact to exercise any such option in the name giving of and upon behalf notice or passage of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If time would constitute a breach or default under the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease (a “Ground Lease Default”) exists on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act Loan Parties or take any action as may be appropriate to cause all of the terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor the Ground Lessor under a Ground Lease. All base rent and additional rent due and payable under a Ground Lease has been paid through the date hereof and the Loan Parties are not required to be performed pay any deferred or observed on behalf of such Subsidiary Guarantor, accrued rent after the date hereof under a Ground Lease. The Loan Parties have not received any written notice that a Ground Lease Default has occurred or exists (except for matters which have been previously disclosed to Administrative Agent and resolved to the end that mutual satisfaction of the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver parties to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection ) or any third party alleges the same to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonexist.
Appears in 2 contracts
Sources: Credit Agreement (Campus Crest Communities, Inc.), Credit Agreement (Campus Crest Communities, Inc.)
Ground Leases. Solely with With respect to Unencumbered Propertyany Borrowing Base Property that is subject to an Approved Ground Lease, each of the Parent REIT and the Borrower shall, and shall cause each other Loan Party Subsidiary Guarantor to:
(a) Diligently perform and observe in all material respects all of the terms, covenants, and conditions of any Acceptable such Approved Ground Lease as tenant under such Acceptable Approved Ground Lease; andLease within any time periods required therein for such performance;
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable such Approved Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) the obtaining of any knowledge of any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable such Approved Ground Lease or of the receipt of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.receipt and (iii) the commencement of any judicial or arbitration proceeding relating to such Approved Ground Lease. If the trustee in bankruptcy of the lessor under the Approved Ground Lease or the lessor as debtor-in-possession rejects any Approved Ground Lease, such Subsidiary Guarantor shall obtain the prior written consent of the Administrative Agent before it exercises its right to elect to treat the Approved Ground Lease as terminated or to remain in possession for the balance of the terms of the Ground Lease pursuant to Section 365(f) of the Bankruptcy Code; and
(c) Exercise any individual option to extend or renew the term of an Acceptable Approved Ground Lease within the window provided in such Approved Ground Lease for the exercise thereof upon demand by the Administrative Agent made at any time within but not less than thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Approved Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then Administrative Agent, subject to the Administrative Agent terms thereof, 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 cure the terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantorsame, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Approved Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Approved Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereon.
Appears in 2 contracts
Sources: Credit Agreement (New York REIT, Inc.), Credit Agreement (American Realty Capital New York Recovery Reit Inc)
Ground Leases. Solely with For purposes of these representations and warranties, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency (“IDA”) or similar leases for purposes of conferring a tax abatement or other benefit. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a Ground Leasehold estate in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent and the Borrower shall, and shall cause each other Loan Party to:
(a) Diligently perform and observe in all material respects all of the terms, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver any estoppel or other agreement received from the ground lessor in favor of Mortgage Loan Seller, its successors and assigns (collectively, the “Ground Lease and Related Documents”), Mortgage Loan Seller represents and warrants that: 35a Review the appraisal to determine if the Administrative Agent Mortgage Loan is secured by a true copy of each Ground Lease (as defined in representation and warranty 35), in whole or in part. If so, review the Title Policy and Mortgage Loan Documents for an indication that the related Mortgage does not also encumber the lessor’s fee interest in the Mortgaged Property. If such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofan indication exists, proceed to Tests 35b through 35r. Appraisal; Title Policy; Mortgage Loan Documents 35b Review the Title Policy and (ii) any bankruptcy, reorganization, or insolvency of Mortgage Loan Documents for an indication that the landlord under any Acceptable Ground Lease or of any notice thereofmemorandum has been recorded or submitted for recordation. If such indication is found, it will be a Test pass. Title Policy; Mortgage Loan Documents 35c Review the Ground Lease and deliver to Related Documents for an indication that the Administrative Agent a true copy of such notice within five (5) Business Days interest of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option lessee is permitted to extend or renew be encumbered by the term of an Acceptable Mortgage Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereon.Related Documents
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Benchmark 2025-V16 Mortgage Trust), Pooling and Servicing Agreement (BBCMS Mortgage Trust 2025-5c34)
Ground Leases. Solely with respect Senior Lender shall deliver to Unencumbered Propertyeach Mezzanine Lender copies of any notices sent by Senior Lender to any lessor under a Ground Lease concurrently therewith. Senior Lender shall also forward to each Mezzanine Lender a copy of any notice it receives from such a ground lessor, each including, without limitation, notices concerning the occurrence of a Ground Lease Default. Each Mezzanine Lender shall have the Parent and the Borrower shall, right to cure such Ground Lease Default and shall cause each other Loan Party to:
(a) Diligently perform and observe in all material respects all deliver written notice to Senior Lender of its intention to do so no later than the terms, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and
(b) Promptly notify the Administrative Agent earlier of (i) the giving ten (10) Business Days prior to the end of the applicable Subsidiary Guarantor cure period set forth in the applicable Ground Lease, and (ii) three (3) Business Days prior to the end of the Monetary Cure Period or the Non-Monetary Cure Period, as applicable. Senior Lender shall, if requested by a Mezzanine Lender, at such Mezzanine Lender’s request and at such Mezzanine Lender’s sole cost and expense, reasonably cooperate with such Mezzanine Lender in the exercise of any notice and all cure rights Senior Lender has under the applicable Ground Lease within the time period specified in this Section 13(h), in accordance with reasonable directions therefor provided by such Mezzanine Lender. In the event that the Ground Lease is terminated by reason of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver Default, Senior Lender shall exercise in a timely manner its rights, if any, to receive a new Ground Lease (the “New Lease”) pursuant to the Administrative Agent a true copy terms of each such notice the Ground Lease. If within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency from Senior Lender of notice of the landlord under any Acceptable Ground Lease or of any Default, a Mezzanine Lender has delivered written notice thereof, and deliver to the Administrative Agent Senior Lender that such Mezzanine Lender elects to cause a true copy nominee of such notice within Mezzanine Lender to assume the obligations of Borrower under the Ground Lease, then Senior Lender shall select such nominee (the “New Ground Lessee”) to be its designee to receive such New Lease, provided each of the following conditions has been satisfied at such Mezzanine Lender’s sole cost and expense no less than five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure the period provided thereunder, then in which Senior Lender is entitled to request a New Lease pursuant to the Administrative Agent Ground Lease:
(i) no Continuing Senior Loan Event of Default shall exist;
(ii) New Ground Lessee shall be a Single Purpose Entity that is a Qualified Transferee;
(iii) New Ground Lessee shall have complied, and shall continue to comply, with all the rightrequirements to the obtaining of a New Lease set forth in the Ground Lease;
(iv) New Ground Lessee assumes all of the obligations of Borrower under the Senior Loan Documents and shall execute and deliver, but without any cost or expense to Senior Lender, such documents and agreements as Senior Lender shall be under no obligationreasonably require to evidence and effectuate said assumption pursuant to documentation reasonably satisfactory to Senior Lender (the “Assumption Documents”), to pay any sums including execution, delivery and to perform any act or take any action recording of a leasehold mortgage, in the form of the Senior Mortgage, encumbering the New Ground Lease, and New Ground Lessee shall authorize the filing of such Uniform Commercial Code financing statements as may be reasonably requested by Senior Lender;
(v) in the event that such transaction results in the removal of any guarantor, indemnitor, pledgor, or other obligor under the Senior Loan Documents, a Person reasonably acceptable to Senior Lender shall assume the obligations of the Third Party Obligors pursuant to Third Party Agreements which are in each case in a form substantially similar to the Third Party Agreement that it is replacing;
(vi) promptly upon taking title to the New Lease, New Ground Lessee shall cause the Premises to be managed by a Qualified Manager;
(vii) New Ground Lessee shall furnish opinions of counsel satisfactory to Lender and its counsel in substantially the form of the opinions delivered by Borrower at the Closing, including (A) opinions with respect to the New Ground Lessee’s formation documents, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Senior Loan Documents and the Assumption Documents are valid, binding and enforceable against New Ground Lessee in accordance with their terms, (C) that New Ground Lessee and any entity which is a controlling stockholder, member or general partner of New Ground Lessee, have been duly organized, and are in existence and good standing, (D) with respect to non-consolidation and (E) with respect to such other matters as Senior Lender may reasonably request;
(viii) Senior Lender shall have received a title insurance policy in substantially the form delivered at the Closing, insuring (A) that the title to the New Lease is vested in the New Ground Lessee and (B) the first lien priority of the Senior Mortgage encumbering the New Lease, subject to only to Permitted Encumbrances;
(ix) New Ground Lessee shall have delivered to Lender all documents reasonably requested by Lender relating to its formation, existence and due authorization, each in form and substance reasonably satisfactory to Lender, including a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents, and certificates of good standing or existence issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to cause qualify or register;
(x) Rating Agency Confirmation shall have been received with respect to the legal structure of the New Ground Lessee, the documentation of the assumption and the related legal opinions;
(xi) Mezzanine Lender shall deliver to Senior Lender (A) evidence reasonably satisfactory to Senior Lender that all of the termsleasehold mortgagee protection provisions contained in the Ground Lease are contained in the New Lease and (B) a Ground Lessor Estoppel Certificate from Ground Lessor relating to the New Lease substantially in the form of the Ground Lessor Estoppel Certificate delivered in connection with the closing of the Senior Loan;
(xii) The Mezzanine Loan shall continue to be subordinate to the Senior Loan in the manner set forth in this Agreement; and
(xiii) Mezzanine Lender shall have paid all of Senior Lender’s reasonable actual expenses in connection with the foregoing.
(xiv) Notwithstanding anything to the contrary contained in this Agreement, covenantsin the event that a Mezzanine Lender requests that Senior Lender take or refrain from taking any action pursuant to this Section 13(h) and Senior Lender complies with such request, Mezzanine Lender shall protect, indemnify and save harmless the Senior Lender from and against any loss, cost, expense, and conditions liabilities, including, without limitation, reasonable attorneys’ fees arising out of any requested action of such Acceptable Mezzanine Lender under this Section 13(h), unless caused by the gross negligence or willful misconduct of Senior Lender. In addition, (y) Senior Lender shall have no obligation to incur and costs or expenses, or make any Protective Advances, in connection with a Mezzanine Lender’s efforts to cure Ground Lease on the part of Defaults unless such Subsidiary Guarantor Mezzanine Lender has deposited an amount with Senior Lender sufficient to be performed pay such costs or observed on behalf of such Subsidiary Guarantorexpenses, to the end that the rights of such Subsidiary Guarantor in, toor make any Protective Advances, and (z) any sums due to Senior Lender from such Mezzanine Lender in connection with such Mezzanine Lender’s indemnification obligations under such Acceptable this Section 13(h) shall be paid within 30 days of written demand by Senior Lender. Senior Lender shall not consent to any amendment, modification or termination of any Ground Lease shall be kept unimpaired and free from default. If without the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy reasonable consent of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonMezzanine Lender.
Appears in 2 contracts
Sources: Intercreditor Agreement, Intercreditor Agreement (KBS Real Estate Investment Trust, Inc.)
Ground Leases. Solely with With respect to Unencumbered any Commercial Mortgage Loan where the Commercial Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of Seller, its successors and shall cause each other Loan Party toassigns, Seller represents and warrants that:
(a) Diligently perform and observe The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; andits successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage;
(b) Promptly notify The lessor under such Ground Lease has agreed in a writing included in the Administrative Agent related Asset File (or in such Ground Lease) that the Ground Lease may not be amended or modified, or canceled or terminated by agreement of lessor and lessee, without the prior written consent of the lender (except termination or cancellation if (i) the giving to the applicable Subsidiary Guarantor of any notice of any a default by such Subsidiary Guarantor under any Acceptable the Ground Lease and deliver is provided to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, lender and (ii) any bankruptcysuch default is curable by lender as provided in the Ground Lease but remains uncured beyond the applicable cure period), reorganization, or insolvency and no such consent has been granted by Seller since the origination of the landlord under Commercial Mortgage Loan except as reflected in any Acceptable Ground Lease or of any notice thereof, and deliver to written instruments which are included in the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.related Asset File;
(c) Exercise any individual option to extend or renew the term of an Acceptable The Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either Obligor or the mortgagee) that extends not less than twenty (20) years beyond the stated maturity of the related Commercial Mortgage Loan, or ten (10) years past the stated maturity if such Commercial Mortgage Loan fully amortizes by the stated maturity (or with respect to a Commercial Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
(d) The Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances, or (ii) is subject to a subordination, non-in-fact disturbance and attornment agreement to exercise any such option which the mortgagee on the lessor’s fee interest in the name Mortgaged Property is subject;
(e) The Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and upon behalf the Ground Lease is assignable to the holder of the Commercial Mortgage Loan and its successors and assigns without the consent of the lessor thereunder, and in the event it is so assigned, it is further assignable by the holder of the Commercial Mortgage Loan and its successors and assigns without the consent of the lessor;
(f) Seller have not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease. To Seller’s knowledge, which power there is no material default under such Ground Lease and no condition that, but for the passage of attorney shall be irrevocable time or giving of notice, would result in a material default under the terms of such Ground Lease and shall be deemed to be coupled with an interest. If Seller’s knowledge, such Ground Lease is in full force and effect as of the applicable Subsidiary Guarantor shall default in Purchase Date;
(g) The Ground Lease or ancillary agreement between the performance or observance lessor and the lessee requires the lessor to give to the lender written notice of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenantsdefault, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end provides that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any no notice of default or termination is effective against the lender unless such notice is given to the lender;
(h) A lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Acceptable the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the lender’s receipt of notice of any default before the lessor may terminate the Ground Lease;
(i) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by Seller in connection with loans originated for securitization;
(j) Under the terms of the Ground Lease, then such notice shall constitute full protection an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the Administrative Agent Ground Lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in clause (k) below) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Commercial Mortgage Loan Documents) the lender or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Commercial Mortgage Loan, together with any accrued interest;
(k) In the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to Ground Lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Commercial Mortgage Loan, together with any accrued interest; and
(l) Provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with lender upon termination of the Ground Lease for any action taken or omitted to be taken by reason, including rejection of the Administrative Agent, Ground Lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 2 contracts
Sources: Master Repurchase Agreement (FS Credit Real Estate Income Trust, Inc.), Master Repurchase Agreement (FS Credit Real Estate Income Trust, Inc.)
Ground Leases. Solely Seller has delivered to Purchaser contemporaneous with respect the full execution of this Agreement, true, correct and complete copies of each Ground Lease described on the attached Schedule 4.3. Seller is the original lessee (or has validly succeeded to Unencumbered Property, each the rights of the Parent and original lessee) under each Ground Lease, holds the Borrower shallleasehold interest created under each Ground Lease, and shall cause each other Loan Party to:
(a) Diligently perform and observe in all material respects all is the sole owner of the termsImprovements located on the real property being leased thereunder. To Seller’s Knowledge, covenants, and conditions of any Acceptable the Improvements are all constructed within the area leased pursuant to each Ground Lease or easements appurtenant to each Ground Lease. Seller will assign each Ground Lease and convey the Improvements in connection therewith to Purchaser at Closing free and clear of all liens and encumbrances, excepting only the Permitted Exceptions. Furthermore, Seller represents and warrants that: (i) each Ground Lease is in full force and effect and has not been modified or amended, except as tenant provided to Purchaser; (ii) Seller is in actual possession of the leased premises under such Acceptable each Ground Lease; (iii) Seller has paid the rent set forth in each Ground Lease on a current basis and there are no past due amounts; (iv) except as expressly set forth in each Ground Lease, Seller is not obligated to pay any additional rent or charges to any Ground Lessor for any period subsequent to the Closing Date; (v) Seller has not received notice from or given notice to any Ground Lessor claiming that such Ground Lessor or Seller is in default under any Ground Lease, and
(b) Promptly notify , to the Administrative Agent best of (i) Seller’s Knowledge, there is no event which, with the giving of notice or the passage of time or both, would constitute such a default; (vi) each Ground Lease does not provide for non-monetary rent or other consideration to the applicable Subsidiary Guarantor Ground Lessor thereunder; (vii) except for those Tower Sites where Seller has acquired a long term easement interest, Ground Lessor is not an Affiliate of any notice of any default by such Subsidiary Guarantor under any Acceptable Seller, (viii) each Ground Lease (or a memorandum thereof) and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days all assignments of such Subsidiary Guarantor’s receipt thereofGround Lease (if any) is recorded in the appropriate jurisdiction, or a memorandum or other document referencing such Ground Lease will be recorded in the appropriate jurisdiction as of the Closing Date, and (iiix) any bankruptcy, reorganization, or insolvency of the landlord Seller has no obligation under any Acceptable Ground Lease to relocate any Tower now or of in the future. Seller has not received notice that any notice thereofGround Lessor has conveyed, and deliver to the Administrative Agent a true copy of assigned or transferred such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at to any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option third party engaged in the name business of and upon behalf of such Subsidiary Guarantoracquiring, which power of attorney shall be irrevocable and shall be deemed by easement, ground lease, assignment or other method, rights to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail leases related to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonwireless communications facilities.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (StratCap Digital Infrastructure REIT, Inc.), Purchase and Sale Agreement (StratCap Digital Infrastructure REIT, Inc.)
Ground Leases. Solely with For purposes of these representations and warranties, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a Ground Leasehold estate in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of Mortgage Loan Seller, its successors and shall cause each other assigns (collectively, the “Ground Lease and Related Documents”), Mortgage Loan Party to:
Seller represents and warrants that: (aA) Diligently perform The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease and observe in all material respects all Related Documents permit the interest of the terms, covenants, lessee to be encumbered by the related Mortgage and conditions do not restrict the use of any Acceptable the 36a Review the appraisal to determine if the Mortgage Loan is secured by a Ground Lease (as tenant defined in representation and warranty 36), in whole or in part. If so, review the Title Policy and Mortgage Loan Documents for an indication that the related Mortgage does not also encumber the lessor’s fee interest in the Mortgaged Property. If such an indication exists, proceed to Tests 36b through 36r. Appraisal; Title Policy; Mortgage Loan Documents 36b Review the Title Policy and Mortgage Loan Documents for an indication that the Ground Lease or memorandum has been recorded or submitted for recordation. If such indication is found, it will be a Test pass. Title Policy; Mortgage Loan Documents 36c Review the Ground Lease and Related Documents for an indication that the interest of the lessee is permitted to be encumbered by the Mortgage and does not restrict the use of the Mortgaged Property by such lessee, its successors or assigns in a manner that would adversely affect the security provided by the Mortgage. If such indication is found, it will be a Test pass. Ground Lease and Related Documents 36d Review the MS ▇▇▇▇▇▇▇▇ Notices for notation that, as of the Closing Date, there was a material change in the terms of the Ground Lease since its recordation. If no such notation is found, it will be a Test pass. If such notation is found, review the Mortgage File for a MS Servicer Notices; Mortgage File related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of the Ground Lease had occurred since its recordation, except by any written instruments which are included in the related Mortgage File; The lessor under such Acceptable Ground Lease has agreed in a writing included in the related Mortgage File (or in such Ground Lease and Related Documents) that the Ground Lease may not be amended, modified, canceled or terminated by agreement of lessor and lessee without the prior written consent of the Mortgagee and that any such action without such consent is not binding on the Mortgagee, its successors or assigns, provided that the Mortgagee has provided lessor with notice of its lien in accordance with the terms of the Ground Lease; and
(bC) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable The Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five has an original term (5) Business Days of such Subsidiary Guarantor’s receipt thereofor an original term plus one or more optional renewal terms, and (ii) any bankruptcywhich, reorganizationunder all circumstances, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints will be enforceable, by either the Administrative Agent as its attorney-in-fact Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to exercise a Mortgage Loan that accrues on an actual/360 basis, substantially amortizes); The Ground Lease either (i) is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee modification agreement or other such option instrument is in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interestMortgage File. If the applicable Subsidiary Guarantor shall default modification agreement or instrument is in the performance Mortgage File, it will be a Test pass. 36e Review the Ground Lease and Related Documents for a provision that the Ground Lease may not be amended, modified, canceled or observance terminated without the prior written consent of the Mortgagee and that any termsuch action without such consent is not binding on the Mortgagee, covenantits successors or assigns, provided that Mortgagee has provided lessor with notice of its lien in accordance with the terms of the Ground Lease. If such a provision is found, it will be a Test pass. Ground Lease and Related Documents 36f Review the Ground Lease and Related Documents for an indication that it has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by either Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or condition of any Acceptable ten years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes). If such an indication is found, it will be a Test pass. Ground Lease and Related Documents 36g Review the Title Policy for an indication that the Ground Lease is either (i) is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and the Permitted Encumbrances and Title Exceptions, or (ii) Title Policy; SNDA interest of the ground lessor and the Permitted Encumbrances and Title Exceptions; or (ii) is the subject of a subordination, non-disturbance or attornment agreement or similar agreement to which the Mortgagee on the part lessor’s fee interest is subject; (E) Subject to the notice requirements of the Ground Lease and Related Documents, the Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated and all amounts due thereunder have been paid), and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated and all amounts due thereunder have been paid); The Mortgage Loan Seller has not received any written notice of material default under or notice of termination of such Subsidiary Guarantor and shall fail to cure Ground Lease. To the same prior to the expiration of any applicable cure period provided thereunderMortgage Loan Seller’s knowledge, then the Administrative Agent shall have the right, but shall be under there is 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 Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of material default under such Acceptable Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease and to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date; is the subject of a subordination, non-disturbance or attornment agreement or similar agreement to which the Mortgagee on the lessor’s fee interest is subject. If either indication is found, it will be a Test pass. 36h Review the Ground Lease and Related Documents for an indication that the Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated an all amounts due thereunder have been paid). If such indication is found, it will be a Test pass. Ground Lease and Related Documents 36i Review the Ground Lease and Related Documents for an indication that in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated an all amounts due thereunder have been paid). If such indication is found, it will be a Test pass. Ground Lease and Related Documents 36j Review the MS Servicer Notices for notation that the Mortgage Loan Seller has received any written notice of material default under or notice of termination of such Ground Lease. If no such notation is found, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to it will be taken by the Administrative Agent, in good faith, in reliance thereon.a Test pass. MS Servicer Notices
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2025-5c2), Pooling and Servicing Agreement (Bank5 2025-5yr17)
Ground Leases. Solely with respect to Unencumbered Property, each of the Parent and the (a) Borrower shall, and or shall cause each other Loan Party to:
(a) Diligently CPLV Tenant, at its sole cost and expense, promptly and timely perform and observe in all the material respects all of the terms, covenants, covenants and conditions of any Acceptable required to be performed and observed by Borrower as lessee under the Ground Lease as tenant (including, but not limited to, subject to Section 7.4 below, the payment of all rent, additional rent, percentage rent and other charges required to be paid under such Acceptable each Ground Lease; and).
(b) Promptly notify If Borrower or Lender receives from Ground Lessor a notice of default under the Administrative Agent of (i) the giving Ground Lease, then, subject to the applicable Subsidiary Guarantor terms of the Ground Lease, Borrower shall grant Lender the right (but not the obligation), to cause the default or defaults under the Ground Lease to be remedied and otherwise exercise any notice and all rights of Borrower under the Ground Lease, as may be necessary to prevent or cure any default, and Lender shall have the right to enter all or any portion of the Property that is subject to the Ground Lease at such reasonable times and in such manner as Lender deems necessary (subject to the terms of the Ground Lease and the rights of the CPLV Tenant under the CPLV Lease and Tenants Leases and any third-party occupants), to prevent or to cure any such default.
(c) The actions or payments of Lender to cure any default by such Subsidiary Guarantor Borrower under any Acceptable the Ground Lease shall not remove or waive, as between Borrower and deliver Lender, the default that occurred under this Agreement by virtue of the default by Borrower under the Ground Lease. All sums expended by Lender to the Administrative Agent a true copy of each cure any such notice default shall be paid by Borrower to Lender, within five (5) Business Days of demand, with interest on such Subsidiary Guarantorsum at the rate set forth in this Agreement from the date of such demand to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the Mortgage.
(d) Borrower shall notify Lender promptly in writing of it becoming aware of the occurrence of any default by Ground Lessor under the Ground Lease (beyond all applicable notice and cure periods thereunder) or following the receipt by Borrower of any written notice from Ground Lessor under the Ground Lease noting or claiming the occurrence of any default by Borrower under the Ground Lease or the occurrence of any event that, with the passage of time or service of notice, or both, would constitute a default by Borrower under the Ground Lease. Borrower shall promptly deliver to Lender a copy of any such written notice of default.
(e) Within ten (10) days after receipt of written demand by Lender, Borrower shall use commercially reasonable efforts to obtain from Ground Lessor under the Ground Lease and furnish to Lender the estoppel certificate of Ground Lessor stating the date through which rent has been paid and whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any; provided that Lender shall not make such demand more than once in any twelve (12) month period unless an Event of Default is continuing.
(f) Borrower shall promptly execute, acknowledge and deliver to Lender such instruments as may be reasonably required to permit Lender to cure any default under the Ground Lease in accordance with the terms of this Agreement or permit Lender to take such other action required to enable Lender to cure or remedy the matter in default and preserve the security interest of Lender under the Loan Documents with respect to the Property. Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, during the continuance of an Event of Default, any and all acts and to execute any and all documents that are necessary to preserve any rights of Borrower under or with respect to the Ground Lease, including, without limitation, the right to effectuate any extension or renewal of the Ground Lease, or to preserve any rights of Borrower whatsoever in respect of any part of the Ground Lease (and the above powers granted to Lender are coupled with an interest and shall be irrevocable), provided, except in the event of imminent damage to the Property or imminent danger of the termination or loss of the Ground Lease, Lender shall not make or execute any such documents under such power until three (3) days after notice has been given to Borrower by Lender of Lender’s receipt thereofintent to exercise its rights under such power.
(g) Notwithstanding anything to the contrary contained in this Agreement with respect to the Ground Lease:
(i) The lien of the Mortgage attaches to all of Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, and 11 U.S.C. Sections 101 et seq., including, without limitation, all of Borrower’s rights, as debtor, to remain in possession of the Property.
(ii) any bankruptcyBorrower shall not, reorganizationwithout Lender’s written consent, or insolvency elect to treat the Ground Lease as terminated under Subsection 365(h)(l) of the landlord under Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(iii) As security for the Debt, Borrower unconditionally assigns, transfers and sets over to Lender all of Borrower’s claims and rights to the payment of damages arising from any Acceptable rejection of the Ground Lease by the lessor under the Bankruptcy Code. Lender and Borrower shall proceed jointly or in the name of Borrower in respect of any notice thereofclaim, suit, action or proceeding relating to the rejection of the Ground Lease, including, without limitation, the right to file and prosecute any proofs of claim, complaints, motions, applications, notices and other documents in any case in respect of lessor under the Bankruptcy Code. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and deliver shall continue in effect until all of the Debt shall have been satisfied and discharged in full. Any amounts received by Lender or Borrower as damages arising out of the rejection of the Ground Lease as aforesaid shall be applied to all out-of-pocket costs and expenses of Lender (including, without limitation, reasonable attorney’s fees and costs) incurred in connection with the Administrative Agent a true copy exercise of any of its rights or remedies in accordance with the applicable provisions of this Agreement.
(iv) If, pursuant to Subsection 365(h) of the Bankruptcy Code, Borrower seeks to offset, against the rent reserved in the Ground Lease, the amount of any damages caused by the nonperformance by the lessor of any of its obligations thereunder after the rejection by lessor of the Ground Lease under the Bankruptcy Code, then Borrower shall not effect any offset of the amounts so objected to by Lender. 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, Borrower may proceed to offset the amounts set forth in Borrower’s notice.
(v) If any action, proceeding, motion or notice shall be commenced or filed in respect of any lessor of all or any part of the Property in connection with any case under the Bankruptcy Code, Lender and Borrower shall cooperatively conduct and control any such notice litigation with counsel agreed upon between Borrower and Lender in connection with such litigation. Borrower shall, within five (5) Business Days of written demand, pay to Lender all costs and expenses (including attorneys’ fees and costs) incurred in connection with the applicable Subsidiary Guarantor’s receiptcooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be secured by the Lien of the Mortgage.
(cvi) Exercise Borrower shall, upon obtaining notice or knowledge, notify Lender of any individual option to extend filing by or renew against the term of an Acceptable lessor under the Ground Lease upon demand by of a petition under the Administrative Agent made at Bankruptcy Code, setting forth any time within thirty (30) days prior information available to Borrower as to the last day upon date of such filing, the court in which such petition was filed, and the relief sought in such filing. Borrower shall deliver to Lender any and all notices, summonses, pleadings, applications and other documents received by Borrower in connection with any such option may be exercisedpetition and any proceedings relating to such petition.
(h) If Lender, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantornominee, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any termdesignee, covenantsuccessor, or condition assignee acquires title and/or rights of any Acceptable Borrower under the Ground Lease on by reason of foreclosure of the part Mortgage, deed in lieu of foreclosure or otherwise, such Subsidiary Guarantor and party shall fail (x) succeed to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and benefits accruing to Borrower under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then and (y) be entitled to exercise all of the rights and benefits accruing to Borrower under the Ground Lease. At such notice time as Lender shall constitute full protection request, Borrower agrees to execute and deliver and use commercially reasonable efforts to cause any third party to execute and deliver to Lender such documents as Lender and its counsel may require in order to insure that the Administrative Agent for any action taken provisions of this Section will be validly and legally enforceable and effective against Borrower and all parties claiming by, through, under or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonagainst Borrower.
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement (Vici Properties Inc.)
Ground Leases. Solely with For purposes of this Agreement, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency (▇▇▇) or similar leases for purposes of conferring a tax abatement or other benefit. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a ground leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent and the Borrower shall, and shall cause each other Loan Party to:
(a) Diligently perform and observe in all material respects all of the terms, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to any estoppel or other agreement received from the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency ground lessor in favor of the landlord under any Acceptable originator, its successors and assigns, Seller represents and warrants that:
a. The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of any notice thereofthe lessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage;
b. The lessor under such Ground Lease has agreed in a writing included in the related Purchased Asset File (or in such Ground Lease) that the Ground Lease may not be amended, modified, or canceled or terminated by agreement of lessor and lessee without the prior written consent of the lender, and deliver to no such consent has been granted since the Administrative Agent a true copy of such notice within five (5) Business Days origination of the applicable Subsidiary Guarantor’s receipt.Mortgage Loan;
(c) Exercise any individual option to extend or renew the term of an Acceptable c. The Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either the Mortgagor or the mortgagee) that extends not less than twenty (20) years beyond the stated maturity of the related Mortgage Loan, or ten (10) years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
d. The Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorney-in-fact Permitted Encumbrances, or (ii) is subject to exercise any such option a subordination, non disturbance and attornment agreement to which the mortgagee on the lessor’s fee interest in the name Mortgaged Property is subject;
e. The Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and upon behalf the Ground Lease is assignable to the holder of the Mortgage Loan and its assigns without the consent of the lessor thereunder (or if such consent is necessary it has been obtained), and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor;
f. Seller has not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease. To Seller’s knowledge, which power there is no default under such Ground Lease and no condition that, but for the passage of attorney shall be irrevocable time or giving of notice, would result in a default under the terms of such Ground Lease and shall be deemed to be coupled with an interest. If Seller’s knowledge, such Ground Lease is in full force and effect as of the applicable Subsidiary Guarantor shall default in Purchase Date;
g. The Ground Lease or ancillary agreement between the performance or observance lessor and the lessee requires the lessor to give to the lender written notice of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenantsdefault, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end provides that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any no notice of default or termination is effective against lender unless such notice is given to the lender;
h. A lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Acceptable the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the lender’s receipt of notice of any default before the lessor may terminate the Ground Lease;
i. The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender;
j. Under the terms of the Ground Lease, then such notice shall constitute full protection an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the Administrative Agent ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in subpart (k)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Purchased Asset Documents) the lender or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;
▇. ▇▇ the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and
l. Provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with lender upon termination of the Ground Lease for any action taken or omitted to be taken by reason, including rejection of the Administrative Agent, Ground Lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 2 contracts
Sources: Master Repurchase Agreement (Claros Mortgage Trust, Inc.), Master Repurchase Agreement (Claros Mortgage Trust, Inc.)
Ground Leases. Solely (a) This Lease, to the extent affecting and solely with respect to Unencumbered the Ground Leased Property, each of the Parent and the Borrower shall, is and shall cause each other Loan Party to:
(a) Diligently perform be subject and observe in all material respects subordinate to all of the terms, covenants, terms and conditions of the Ground Leases and to all liens, rights and encumbrances to which the Ground Leases are subject or subordinate. Tenant hereby acknowledges that Tenant has reviewed and agreed to all of the terms and conditions of the Ground Leases in effect as of the Commencement Date as listed on Schedule 2 attached hereto. Tenant hereby agrees that (x) Tenant shall comply with all provisions, terms and conditions of the Ground Leases in effect as of the Commencement Date as listed on Schedule 2 and, subject to Section 7.3(g) and Section 7.3(h), any Acceptable amendments or modifications thereto and any new Ground Leases, in each case except to the extent such provisions, terms and conditions (1) apply solely to Landlord, (2) are not susceptible of being performed (or if breached, are not capable of being cured) by Tenant, and (3) in the case of the Ground Leases in effect as of the Commencement Date, are expressly set forth in the copies of such Ground Leases that were furnished to Landlord by Tenant on or prior to the Commencement Date (provisions, terms and conditions satisfying clauses (1) through (3), “Landlord Specific Ground Lease Requirements”), and (y) Tenant shall not do, or (except with respect to Landlord Specific Ground Lease Requirements) fail to do, anything that would cause any violation of the Ground Leases. Without limiting the foregoing, (i) Tenant acknowledges that it shall be obligated to (and shall) pay, as part of Tenant’s obligations under this Lease, all monetary obligations imposed upon Landlord as the lessee under any and all of the Ground Leases as and when due thereunder, including, without limitation, any rent and additional rent payable thereunder and shall, upon request, provide satisfactory proof evidencing such payments to Landlord, (ii) to the extent Landlord is required to obtain the written consent of the lessor under any applicable Ground Lease (in each case, the “Ground Lessor”) to alterations of or the subleasing of all or any portion of the Ground Leased Property pursuant to any Ground Lease, Tenant shall likewise obtain the applicable Ground Lessor’s written consent to alterations of or the sub-subleasing of all or any portion of the Ground Leased Property (in each case, to the extent the same is permitted hereunder), and (iii) (without limitation of the Insurance Requirements hereunder) Tenant shall carry and maintain general liability, automobile liability, property and casualty, worker’s compensation, employer’s liability insurance and such other insurance, if any, in amounts and with policy provisions, coverages and certificates as required of Landlord as tenant under such Acceptable any applicable Ground Lease; . The foregoing is not intended to vitiate or supersede Landlord’s rights as lessee under any Ground Lease, and, without limitation of the preceding portion of this sentence or of any other rights or remedies of Landlord hereunder, in the event Tenant fails to comply with its obligations with respect to Ground Leases as described herein (without giving effect to any notice or cure periods thereunder), Landlord shall have the right (but without any obligation to Tenant or any liability for failure to exercise such right), following written notice to Tenant and the passage of a reasonable period of time (except to the extent the failure is of a nature such that it is not practicable for Landlord to provide such prior written notice, in which event Landlord shall provide written notice as soon as practicable) to cure such failure, in which event Tenant shall reimburse Landlord for Landlord’s reasonable costs and expenses incurred in connection with curing such failure. The parties acknowledge that the Ground Leases on the one hand, and this Lease on the other hand, constitute separate contractual arrangements among separate parties and nothing in this Lease shall vitiate or otherwise affect the obligations of the parties to the Ground Leases, and nothing in the Ground Leases shall vitiate or otherwise affect the obligations of the parties hereto pursuant to this Lease (except as specifically set forth in this Section 7.3).
(b) Promptly notify Subject to Section 7.3(c) below, in the Administrative Agent event of cancellation or termination of any Ground Lease for any reason whatsoever whether voluntary or involuntary (by operation of law or otherwise) prior to the expiration date of this Lease, including extensions and renewals granted thereunder (other than the cancellation or termination of a Ground Lease entered into in connection with a sale-leaseback transaction by Landlord (other than if such cancellation or termination resulted from Tenant’s default under this Lease), which cancellation or termination results in the Leased Property leased under such Ground Lease no longer being subject to this Lease), then, this Lease and Tenant’s obligation to pay the Rent and Additional Charges hereunder and all other obligations of Tenant hereunder (other than such obligations of Tenant hereunder that concern solely the applicable Ground Leased Property demised under the affected Ground Lease) shall continue unabated; provided that if Landlord (or any Fee Mortgagee) enters into a replacement lease with respect to the applicable Ground Leased Property on substantially similar terms to those of such cancelled or terminated Ground Lease, then such replacement lease shall automatically become a Ground Lease hereunder and such Ground Leased Property shall remain part of the Leased Property hereunder. Nothing contained in this Lease shall create, or be construed as creating, any privity of contract or privity of estate between Ground Lessor and Tenant.
(c) With respect to any Ground Leased Property, the Ground Lease for which has an expiration date (taking into account any renewal options exercised thereunder as of the Commencement Date or hereafter exercised) prior to the expiration of the Term (taking into account any exercised renewal options hereunder), this Lease shall expire solely with respect to such Ground Leased Property concurrently with such Ground Lease expiration date (taking into account the terms of the following sentences of this Section 7.3(c)). There shall be no reduction in Rent or Required Capital Expenditures by reason of such expiration with respect to, and the corresponding removal from this Lease of, any such Ground Leased Property. Landlord (as ground lessee) shall be required to exercise all renewal options contained in each Ground Lease so as to extend the term thereof (provided, that Tenant shall furnish to Landlord written notice of the outside date by which any such renewal option must be exercised in order to validly extend the term of any such Ground Lease; such notice shall be delivered no earlier than one hundred twenty (120) days prior to the earliest date any such option may be validly exercised and no later than forty-five (45) days prior to the outside date by which such option must be validly exercised, which notice shall be followed by a second notice from Tenant to Landlord of such outside date, such notice to be furnished to Landlord no later than fifteen (15) days prior to the outside date), and Landlord shall provide Tenant with a copy of Landlord’s exercise of such renewal option. With respect to any Ground Lease that otherwise would expire during the Term, Tenant, on Landlord’s behalf, shall have the right to negotiate for a renewal or replacement of such Ground Lease with the third-party ground lessor, on terms satisfactory to Tenant (subject, (i) the giving to Landlord’s reasonable consent with respect to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease provisions, terms and deliver conditions thereof which would reasonably be expected to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofmaterially and adversely affect Landlord, and (ii) in the case of any bankruptcysuch renewal or replacement that would extend the term of such Ground Lease beyond the Term, reorganizationto Landlord’s sole right to approve any such provisions, terms and conditions that would be applicable beyond the Term).
(d) Nothing contained in this Lease amends, or insolvency shall be construed to amend, any provision of the landlord Ground Leases.
(e) Tenant shall indemnify, defend and hold harmless the Landlord Indemnified Parties, the Ground Lessor, any master lessor to Ground Lessor and any other party entitled to be indemnified by Landlord pursuant to the terms of any Ground Lease from and against any and all claims arising from or in connection with the Facility and/or this Lease with respect to which such party is entitled to indemnification by Landlord pursuant to the terms of any Ground Lease, and from and against all costs, attorneys’ fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon to the extent provided in the applicable Ground Lease; and in case any such action or proceeding be brought against any of the Landlord Indemnified Parties, any Ground Lessor or any master lessor to Ground Lessor or any such party by reason of any such claim, Tenant, upon notice from Landlord or any of its Affiliates or such other Landlord Indemnified Party, such Ground Lessor or such master lessor to Ground Lessor or any such party, shall defend the same at Tenant’s expense by counsel reasonably satisfactory to the party or parties indemnified pursuant to this paragraph or the Ground Lease. Notwithstanding the foregoing, in no event shall Tenant be required to indemnify, defend or hold harmless the Landlord Indemnified Parties, the Ground Lessor, any master lessor to Ground Lessor or any other party from or against any claims to the extent resulting from (i) the gross negligence or willful misconduct of Landlord, or (ii) the actions of Landlord except if such actions are the result of Tenant’s failure, in violation of this Lease, to act.
(f) To the extent required under the applicable Ground Lease, Tenant hereby waives any Acceptable and all rights of recovery (including subrogation rights of its insurers) from the applicable Ground Lessor, its agents, principals, employees and representatives for any loss or damage, including consequential loss or damage, covered by any insurance policy maintained by Tenant, whether or not such policy is required under the terms of the Ground Lease.
(g) Landlord shall not enter into any new ground leases with respect to the Leased Property or any portion thereof (except as provided by Section 7.3(h)), or amend, modify or terminate any existing Ground Leases (except as provided by Section 7.3(b) or Section 7.3(c)), in each case without Tenant’s prior written consent in its reasonable discretion, provided, that, Landlord may amend or modify Ground Leases in a manner that will not adversely affect Tenant (e.g., an amendment relating to a period following the end of the Term), and Landlord may acquire the fee interest in the property leased pursuant to any Ground Lease, so long as Tenant’s rights and obligations hereunder are not adversely affected thereby.
(h) Landlord may enter into new Ground Leases with respect to the Leased Property or any portion thereof (including pursuant to a sale-leaseback transaction) or amend or modify any such Ground Lease, provided that, notwithstanding anything herein to the contrary (other than replacement Ground Lease(s) made pursuant to Section 7.3(b) or Ground Lease(s) made pursuant to the final sentence of Section 7.3(c)), Tenant shall not be obligated to comply with any additional or more onerous obligations under such new ground lease or amendment or modification thereof with which Tenant is not otherwise obligated to comply under this Lease (and, without limiting the generality of the foregoing, Tenant shall not be required to incur any additional monetary obligations (whether for payment of rents under such new Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of otherwise) in connection with such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable new Ground Lease) (except to a de minimis extent), then unless Tenant approves such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, additional obligations in good faith, in reliance thereonits sole and absolute discretion.
Appears in 2 contracts
Sources: Lease Amendment (Vici Properties Inc.), Lease (CAESARS ENTERTAINMENT Corp)
Ground Leases. Solely (a) This Lease, to the extent affecting and solely with respect to Unencumbered the Ground Leased Property, each of the Parent and the Borrower shall, is and shall cause each other Loan Party to:
(a) Diligently perform be subject and observe in all material respects subordinate to all of the terms, covenants, terms and conditions of the Ground Leases and to all liens, rights and encumbrances to which the Ground Leases are subject or subordinate. Tenant hereby acknowledges that Tenant has reviewed and agreed to all of the terms and conditions of the Ground Leases in effect as of the Commencement Date as listed on Schedule 2 attached hereto. Tenant hereby agrees that (x) Tenant shall comply with all provisions, terms and conditions of the Ground Leases in effect as of the Commencement Date as listed on Schedule 2 and, subject to Section 7.3(g) and Section 7.3(h), any Acceptable amendments or modifications thereto and any new Ground Leases, in each case except to the extent such provisions, terms and conditions (1) apply solely to Landlord, (2) are not susceptible of being performed (or if breached, are not capable of being cured) by Tenant, and (3) in the case of the Ground Leases in effect as of the Commencement Date, are expressly set forth in the copies of such Ground Leases that were furnished to Landlord by Tenant on or prior to the Commencement Date (provisions, terms and conditions satisfying clauses (1) through (3), “Landlord Specific Ground Lease Requirements”), and (y) Tenant shall not do, or (except with respect to Landlord Specific Ground Lease Requirements) fail to do, anything that would cause any violation of the Ground Leases. Without limiting the foregoing, (i) Tenant acknowledges that it shall be obligated to (and shall) pay, as part of Tenant’s obligations under this Lease, all monetary obligations imposed upon Landlord as the lessee under any and all of the Ground Leases as and when due thereunder, including, without limitation, any rent and additional rent payable thereunder and shall, upon request, provide satisfactory proof evidencing such payments to Landlord, (ii) to the extent Landlord is required to obtain the written consent of the lessor under any applicable Ground Lease (in each case, the “Ground Lessor”) to alterations of or the subleasing of all or any portion of the Ground Leased Property pursuant to any Ground Lease, Tenant shall likewise obtain the applicable Ground Lessor’s written consent to alterations of or the sub-subleasing of all or any portion of the Ground Leased Property (in each case, to the extent the same is permitted hereunder), and (iii) (without limitation of the Insurance Requirements hereunder) Tenant shall carry and maintain general liability, automobile liability, property and casualty, worker’s compensation, employer’s liability insurance and such other insurance, if any, in amounts and with policy provisions, coverages and certificates as required of Landlord as tenant under such Acceptable any applicable Ground Lease; . The foregoing is not intended to vitiate or supersede Landlord’s rights as lessee under any Ground Lease, and, without limitation of the preceding portion of this sentence or of any other rights or remedies of Landlord hereunder, in the event Tenant fails to comply with its obligations with respect to Ground Leases as described herein (without giving effect to any notice or cure periods thereunder), Landlord shall have the right (but without any obligation to Tenant or any liability for failure to exercise such right), following written notice to Tenant and the passage of a reasonable period of time (except to the extent the failure is of a nature such that it is not practicable for Landlord to provide such prior written notice, in which event Landlord shall provide written notice as soon as practicable) to cure such failure, in which event Tenant shall reimburse Landlord for Landlord’s reasonable costs and expenses incurred in connection with curing such failure. The parties acknowledge that the Ground Leases on the one hand, and this Lease on the other hand, constitute separate contractual arrangements among separate parties and nothing in this Lease shall vitiate or otherwise affect the obligations of the parties to the Ground Leases, and nothing in the Ground Leases shall vitiate or otherwise affect the obligations of the parties hereto pursuant to this Lease (except as specifically set forth in this Section 7.3).
(b) Promptly notify Subject to Section 7.3(c) below, in the Administrative Agent event of cancellation or termination of any Ground Lease for any reason whatsoever whether voluntary or involuntary (by operation of law or otherwise) prior to the expiration date of this Lease, including extensions and renewals granted hereunder (other than the cancellation or termination of a Ground Lease entered into in connection with a sale-leaseback transaction by Landlord (other than if such cancellation or termination resulted from Tenant’s default under this Lease), which cancellation or termination results in the Leased Property leased under such Ground Lease no longer being subject to this Lease), then, this Lease and Tenant’s obligation to pay the Rent and Additional Charges hereunder and all other obligations of Tenant hereunder (other than such obligations of Tenant hereunder that concern solely the applicable Ground Leased Property demised under the affected Ground Lease) shall continue unabated; provided that if Landlord (or any Fee Mortgagee) enters into a replacement lease with respect to the applicable Ground Leased Property on substantially similar terms to those of such cancelled or terminated Ground Lease, then such replacement lease shall automatically become a Ground Lease hereunder and such Ground Leased Property shall remain part of the Leased Property hereunder. Nothing contained in this Lease shall create, or be construed as creating, any privity of contract or privity of estate between Ground Lessor and Tenant.
(c) With respect to any Ground Leased Property, the Ground Lease for which has an expiration date (taking into account any renewal options exercised thereunder or hereafter exercised) prior to the expiration of the Term (taking into account any exercised renewal options hereunder), this Lease shall expire solely with respect to such Ground Leased Property concurrently with such Ground Lease expiration date (taking into account the terms of the following sentences of this Section 7.3(c)). There shall be no reduction in Rent nor Required Capital Expenditures by reason of such expiration with respect to, and the corresponding removal from this Lease of, any such Ground Leased Property. Landlord (as ground lessee) shall exercise all renewal options contained in each Ground Lease so as to extend the term thereof (provided, that, Tenant shall furnish to Landlord written notice of the outside date by which any such renewal option must be exercised in order to validly extend the term of any such Ground Lease; such notice shall be delivered no earlier than one hundred twenty (120) days prior to the earliest date any such option may be validly exercised and no later than forty-five (45) days prior to the outside date by which such option must be validly exercised, which notice shall be followed by a second notice from Tenant to Landlord of such outside date, such notice to be furnished to Landlord no later than fifteen (15) days prior to the outside date), and Landlord shall provide Tenant with a copy of Landlord’s exercise of such renewal option. With respect to any Ground Lease that otherwise would expire during the Term, Tenant, on Landlord’s behalf, shall have the right to negotiate for a renewal or replacement of such Ground Lease with the third party ground lessor, on terms satisfactory to Tenant (subject, (i) the giving to Landlord’s reasonable consent with respect to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease provisions, terms and deliver conditions thereof which would reasonably be expected to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofmaterially and adversely affect Landlord, and (ii) in the case of any bankruptcysuch renewal or replacement that would extend the term of such Ground Lease beyond the Term, reorganizationto Landlord’s sole right to approve any such provisions, terms and conditions that would be applicable beyond the Term).
(d) Nothing contained in this Lease amends, or insolvency shall be construed to amend, any provision of the landlord Ground Leases.
(e) Tenant shall indemnify, defend and hold harmless the Landlord Indemnified Parties, the Ground Lessor, any master lessor to Ground Lessor and any other party entitled to be indemnified by Landlord pursuant to the terms of any Ground Lease from and against any and all claims arising from or in connection with the Facility and/or this Lease with respect to which such party is entitled to indemnification by Landlord pursuant to the terms of any Ground Lease, and from and against all costs, attorneys’ fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon to the extent provided in the applicable Ground Lease; and in case any such action or proceeding be brought against any of the Landlord Indemnified Parties, any Ground Lessor or any master lessor to Ground Lessor or any such party by reason of any such claim, Tenant, upon notice from Landlord or any of its Affiliates or such other Landlord Indemnified Party, such Ground Lessor or such master lessor to Ground Lessor or any such party, shall defend the same at Tenant’s expense by counsel reasonably satisfactory to the party or parties indemnified pursuant to this paragraph or the Ground Lease. Notwithstanding the foregoing, in no event shall Tenant be required to indemnify, defend or hold harmless the Landlord Indemnified Parties, the Ground Lessor, any master lessor to Ground Lessor or any other party from or against any claims to the extent resulting from (i) the gross negligence or willful misconduct of Landlord, or (ii) the actions of Landlord except if such actions are the result of Tenant’s failure, in violation of this Lease, to act.
(f) To the extent required under the applicable Ground Lease, Tenant hereby waives any Acceptable and all rights of recovery (including subrogation rights of its insurers) from the applicable Ground Lessor, its agents, principals, employees and representatives for any loss or damage, including consequential loss or damage, covered by any insurance policy maintained by Tenant, whether or not such policy is required under the terms of the Ground Lease.
(g) Landlord shall not enter into any new ground leases with respect to the Leased Property or any portion thereof (except as provided by Section 7.3(h)), or amend, modify or terminate any existing Ground Leases (except as provided by Section 7.3(b) or Section 7.3(c)), in each case without Tenant’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, provided, that, Landlord may amend or modify Ground Leases in a manner that will not adversely affect Tenant (e.g., an amendment relating to a period following the end of the Term), and Landlord may acquire the fee interest in the property leased pursuant to any Ground Lease, so long as Tenant’s rights and obligations hereunder are not adversely affected thereby.
(h) Landlord may enter into new Ground Leases with respect to the Leased Property or any portion thereof (including pursuant to a sale-leaseback transaction) or amend or modify any such Ground Leases, provided that, notwithstanding anything herein to the contrary (other than replacement Ground Lease(s) made pursuant to Section 7.3(b) or Ground Lease(s) made pursuant to the final sentence of Section 7.3(c)), Tenant shall not be obligated to comply with any additional or more onerous obligations under such new ground lease or amendment or modification thereof with which Tenant is not otherwise obligated to comply under this Lease (and, without limiting the generality of the foregoing, Tenant shall not be required to incur any additional monetary obligations (whether for payment of rents under such new Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of otherwise) in connection with such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable new Ground Lease) (except to a de minimis extent), then unless Tenant approves such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, additional obligations in good faith, in reliance thereonits sole and absolute discretion.
Appears in 2 contracts
Sources: Lease Amendment (Caesars Entertainment, Inc.), Lease (Vici Properties Inc.)
Ground Leases. Solely with respect (A) Each Ground Lease contains the entire agreement of the Ground Lessor and the applicable Borrower pertaining to Unencumbered Propertyeach Ground Leased Property covered thereby. The Borrowers have no estate, right, title or interest in or to the Ground Leased Properties except under and pursuant to the Ground Leases. The Borrowers have delivered true and correct copies of each of the Parent Ground Leases to Lender and the Borrower shallGround Leases have not been modified, and shall cause each other Loan Party to:amended or assigned except as set forth on SCHEDULE 4.30.
(aB) Diligently perform and observe in all material respects all To the Knowledge of the termsBorrowers, covenantseach Ground Lessor is the exclusive fee simple owner of its Ground Leased Property, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) the giving subject only to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofPermitted Encumbrances, and (ii) any bankruptcy, reorganization, or insolvency each Ground Lessor is the sole owner of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of lessor's interest in the applicable Subsidiary Guarantor’s receiptGround Lease.
(cC) Exercise There are no rights to terminate any individual option to extend or renew the term of an Acceptable Ground Lease upon demand other than any Ground Lessor's right to terminate by reason of default, casualty, condemnation or other reasons, in each case as expressly set forth in the Administrative Agent made at any time within thirty applicable Ground Lease.
(30D) days prior Each Ground Lease is in full force and effect and to the last day upon which Borrowers' Knowledge, no breach or default or event that with the giving of notice or passage of time would constitute a breach or default under any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease (a "GROUND LEASE DEFAULT") exists or has occurred on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act Borrowers or take any action as may be appropriate to cause all of the terms, covenants, and conditions of such Acceptable Ground Lease on the part of any Ground Lessor under any Ground Lease. All base rent and additional rent due and payable under the Ground Leases has been paid through the date hereof and the Borrowers are not required to pay any deferred or accrued rent after the date hereof under any of the Ground Leases except for certain deferred rental obligations payable under the Ground Lease for the Crowne Plaza, Albany, New York as set forth in the estoppel executed by the Ground Lessor under such Subsidiary Guarantor Ground Lease and delivered to be performed Lender prior to Closing. The Borrowers have not received any written notice that a Ground Lease Default has occurred or observed exists, or that any Ground Lessor or any third party alleges the same to have occurred or exist.
(E) The applicable Borrower set forth on behalf SCHEDULE 4.30 is the exclusive owner of such Subsidiary Guarantor, the lessee's interest under and pursuant to the end that the rights of such Subsidiary Guarantor applicable Ground Lease and has not assigned, transferred, or encumbered its interest in, to, and or under such Acceptable any Ground Lease shall be kept unimpaired (other than assignments that will terminate on or prior to Closing), except in favor of Lender pursuant to this Loan Agreement and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonother Loan Documents.
Appears in 2 contracts
Sources: Loan and Security Agreement (Lodgian Inc), Loan Agreement (Lodgian Inc)
Ground Leases. Solely with With respect to Unencumbered any Purchased Asset where the underlying Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related underlying Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of Seller, its successors and shall cause each other Loan Party toassigns, Seller represents and warrants that:
(a) Diligently perform and observe (i) the Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction; (ii) the Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage and conditions (iii) no material change in the terms of any Acceptable the Ground Lease as tenant under such Acceptable Ground Lease; andhad occurred since its recordation, except by any written instrument which are included in the related Purchased Asset File;
(b) Promptly notify the Administrative Agent lessor under such Ground Lease has agreed in a writing included in the related Purchased Asset File (or in such Ground Lease) that the Ground Lease may not be amended or modified in any material respect, or canceled or terminated, without the prior written consent of the mezzanine lender (except termination or cancellation if (i) the giving to the applicable Subsidiary Guarantor of any notice of any a default by such Subsidiary Guarantor under any Acceptable the Ground Lease and deliver is provided to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, mezzanine lender and (ii) any bankruptcysuch default is curable by mezzanine lender as provided in the Ground Lease but remains uncured beyond the applicable cure period), reorganization, or insolvency and no such consent has been granted by Seller since the origination of the landlord under Purchased Asset except as reflected in any Acceptable Ground Lease or of any notice thereof, and deliver to written instruments which are included in the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.related Purchased Asset File;
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either the underlying Mortgagor or the mortgagee) that extends not less than 20 years beyond the stated maturity of the related Purchased Asset, or 10 years past the stated maturity if such Purchased Asset fully amortizes by the stated maturity (or with respect to a Purchased Asset that accrues on an actual 360 basis, substantially amortizes);
(d) the Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the underlying Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances, or (ii) is subject to a subordination, non-in-fact disturbance and attornment agreement to exercise any such option which the mortgagee on the lessor’s fee interest in the name underlying Mortgaged Property is subject;
(e) the Ground Lease does not place commercially unreasonable restrictions on the identity of the mortgagee and upon behalf the Ground Lease is assignable to the holder of the Purchased Asset and its successors and assigns without the consent of the lessor thereunder, and in the event it is so assigned, it is further assignable by the holder of the Purchased Asset and its successors and assigns without the consent of the lessor;
(f) Seller has not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease and, to Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease and to Seller’s knowledge, such Ground Lease is in full force and effect;
(g) the Ground Lease or ancillary agreement between the lessor and the lessee requires the lessor to give to the lender written notice of any default, and provides that no notice of default or termination is effective against the lender unless such notice is given to the lender;
(h) a lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings) to cure any default under the Ground Lease which power is curable after the lender’s receipt of attorney shall notice of any default before the lessor may terminate the Ground Lease;
(i) the Ground Lease does not impose any restrictions on subletting that would be irrevocable viewed as commercially unreasonable by a prudent commercial mortgage lender;
(j) under the terms of the Ground Lease, an estoppel or other agreement received from the ground lessor and shall the related underlying Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in Paragraph (26)(k) below) will be deemed applied either to the repair or to restoration of all or part of the related underlying Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Purchased Asset Documents) the lender or a trustee appointed by it having the right to hold and disburse such proceeds as repair and restoration progresses, or, to the payment of the outstanding principal balance of the underlying Mortgage Loan, together with any accrued interest, with excess, if any, applied to the Mezzanine Loan;
(k) in the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related underlying Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related underlying Mortgaged Property to the extent not applied to restoration, will be coupled applied first, pro rata, to the payment of the outstanding principal balance of the underlying Mortgage Loan and the Purchased Asset, together with an any accrued interest; and
(l) provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the lender upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a bankruptcy proceeding. If applicable, the applicable Subsidiary Guarantor shall ground lessor consented to and acknowledged that (i) the Mezzanine Loan is permitted / approved, (ii) any foreclosure of the Mezzanine Loan and related change in ownership of the ground lessee will not require the consent of the ground lessor or constitute a default under the ground lease, (iii) copies of default notices would be sent to mezzanine lender (or, in the performance or observance of any termalternative, covenant, or condition of any Acceptable Ground Lease on the part of mortgage lender has agreed to send such Subsidiary Guarantor and shall fail notice to cure the same prior mezzanine lender pursuant to the expiration of any applicable related intercreditor agreement) and (iv) it would accept cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed from mezzanine lender on behalf of the ground lessee (or, in the alternative, mortgage lender has agreed to tender such Subsidiary Guarantor, cure on behalf of mezzanine lender pursuant to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonrelated intercreditor agreement).
Appears in 2 contracts
Sources: Master Repurchase and Securities Contract Agreement (ACRES Commercial Realty Corp.), Master Repurchase and Securities Contract Agreement (FS Credit Real Estate Income Trust, Inc.)
Ground Leases. Solely with respect to Unencumbered Property, each of the Parent and the Borrower shall, and shall cause each other Loan Party to:
(a) Diligently perform Borrower shall not, without Lender’s written consent, permit Mortgage Borrower to fail to exercise any option or right to renew or extend the term of any Ground Lease in accordance with the terms of such Ground Lease, and observe in all material respects all Borrower shall cause Mortgage Borrower to give immediate written notice to Lender and shall execute, acknowledge, deliver and record any document requested by Lender to evidence the Lien of the termsrelated Mortgage on such extended or renewed lease term; provided, covenantshowever, Borrower shall not be required to cause Mortgage Borrower to exercise any particular such option or right to renew or extend to the extent Borrower shall have received the prior written consent of Lender (which consent may be withheld by Lender in its sole and conditions absolute discretion) allowing Mortgage Borrower to forego exercising such option or right to renew or extend. If Mortgage Borrower shall fail to exercise any such option or right as aforesaid, Lender may exercise the option or right as Mortgage Borrower’s agent and attorney-in-fact as provided above in Lender’s own name or in the name of any Acceptable Ground Lease and on behalf of a nominee of Lender, as tenant under such Acceptable Ground Lease; andLender may determine in the exercise of its sole and absolute discretion.
(b) Promptly notify Borrower shall cause Mortgage Borrower not to waive, excuse, condone or in any way release or discharge the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor lessor under any Acceptable Ground Lease and deliver to of or from such lessor’s material obligations, covenant and/or conditions under the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable related Ground Lease or without the prior written consent of any notice thereofLender, and deliver such consent not to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receiptbe unreasonably withheld.
(c) Exercise Borrower shall not, without Lender’s prior written consent, permit Mortgage Borrower to surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modify or amend in a material or adverse manner, any individual option Ground Lease. Consent to extend one amendment, change, agreement or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney modification shall be irrevocable and shall not be deemed to be coupled with an interesta waiver of the right to require consent to other, future or successive amendments, changes, agreements or modifications. If the applicable Subsidiary Guarantor shall default Any acquisition of lessor’s interest in the performance or observance of any termGround Lease by Borrower, covenantMortgage Borrower, or condition any Affiliate of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the Administrative Agent shall have the right, but Borrower shall be under no obligation, accomplished by Borrower or Mortgage Borrower in such a manner so as to pay any sums and to perform any act or take any action as may be appropriate to cause all avoid a merger of the terms, covenants, interests of lessor and conditions of lessee in such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then unless consent to such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken merger is granted by the Administrative Agent, in good faith, in reliance thereonLender.
Appears in 2 contracts
Sources: Junior Mezzanine Loan Agreement (Sunstone Hotel Investors, Inc.), Mezzanine Loan Agreement (Sunstone Hotel Investors, Inc.)
Ground Leases. Solely with respect Notwithstanding any provision in the Operative Agreements to Unencumbered Propertythe contrary, each properties subject to ground leases in favor of the Parent and Lessor as a direct or indirect ground lessee are eligible for inclusion as Properties under the Borrower shallOperative Agreements; provided, and shall cause each other Loan Party to:
(a) Diligently perform and observe in all material respects all of the terms, covenants, each such ground lease must be on terms and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and
that are acceptable to the Agent in its reasonable discretion, (b) Promptly notify a first priority, perfected Lien, deed of trust and mortgage, with power of sale, on all right, title and interest of the Administrative Lessee, the Construction Agent and any Affiliate of either such entity having an interest in any such property subject to a ground lease shall be granted in favor of the Agent as security for the obligations of the Lessee and/or the Construction Agent pursuant to the Operative Agreements, (c) the Lessee shall be, and hereby is, responsible for (i) the giving to the applicable Subsidiary Guarantor payment of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver all rent and other payment obligations pursuant to the Administrative Agent a true copy of each such notice within five ground lease as Supplemental Rent (5except that during the Construction Period for any Property subject to any such ground lease, the rent and other payment obligations pursuant thereto shall be eligible for funding as Construction Advances) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) the performance of any bankruptcyand all non-payment obligations pursuant to each such ground lease and (d) with respect to each property subject to a ground lease, reorganizationon the Property Closing Date therefor, or insolvency the date of each subsequent Advance and each Rent Commencement Date, (i) the Lessee shall be deemed to have given a representation and warranty that (A) the Lessee has good and indefeasible fee simple title to such property and (B) the Lessee has granted to the Lessor a valid leasehold interest in such property pursuant to a ground lease satisfying the provisions of this Section 5.12 as of the landlord under any Acceptable Ground Lease Property Closing Date therefor but (ii) except as specified in Section 5.12(d)(i), no other representation or warranty of any notice thereof, and deliver to the Administrative Agent a true copy of title regarding such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and property shall be deemed to be coupled with an interestgiven by the Lessee. If Each property subject to a ground lease in favor of the applicable Subsidiary Guarantor shall default in Lessor is hereby deemed to be sub-ground leased from the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior Lessor to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonLessee.
Appears in 2 contracts
Sources: First Amendment and Restatement of Operative Agreements (Sabre Holdings Corp), First Amendment and Restatement of Operative Agreements (Sabre Holdings Corp)
Ground Leases. Solely with For purposes of these representations and warranties, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a ground leasehold estate in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of Mortgage Loan Seller, its successors and shall cause each other assigns (collectively, the “Ground Lease and Related Documents”), Mortgage Loan Party to:
Seller represents and warrants that: (aA) Diligently perform The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease and observe in all material respects all Related Documents permit the interest of the termslessee to be encumbered by the related Mortgage and do not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of any Acceptable the Ground Lease has occurred since 36a Review the appraisal to determine if the Mortgage Loan is secured by a Ground Lease (as tenant defined in representation and warranty 36), in whole or in part. If so, review the Title Policy and Mortgage Loan Documents for an indication that the related Mortgage does not also encumber the lessor’s fee interest in the Mortgaged Property. If such an indication exists, proceed to Tests 36b through 36r. Appraisal; Title Policy; Mortgage Loan Documents 36b Review the Title Policy and Mortgage Loan Documents for an indication that the Ground Lease or memorandum has been recorded or submitted for recordation. If such indication is found, it will be a Test pass. Title Policy; Mortgage Loan Documents 36c Review the Ground Lease and Related Documents for an indication that the interest of the lessee is permitted to be encumbered by the Mortgage and does not restrict the use of the Mortgaged Property by such lessee, its successors or assigns in a manner that would adversely affect the security provided by the Mortgage. If such indication is found, it will be a Test pass. Ground Lease and Related Documents 36d Review the MS Servicer Notices for notation that, as of the Closing Date, there was a material change in the terms of the Ground Lease since its recordation. If no such notation is found, it will be a Test pass. If such notation is found, review the Mortgage File for a modification agreement or other such instrument is in the Mortgage File. If the modification agreement or instrument is in the Mortgage File, it will be a Test pass. MS Servicer Notices; Mortgage File its recordation, except by any written instruments which are included in the related Mortgage File; (B) The lessor under such Acceptable Ground Lease has agreed in a writing included in the related Mortgage File (or in such Ground Lease and Related Documents) that the Ground Lease may not be amended, modified, canceled or terminated by agreement of lessor and lessee without the prior written consent of the Mortgagee and that any such action without such consent is not binding on the Mortgagee, its successors or assigns, provided that the Mortgagee has provided lessor with notice of its lien in accordance with the terms of the Ground Lease; and
(bC) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable The Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five has an original term (5) Business Days of such Subsidiary Guarantor’s receipt thereofor an original term plus one or more optional renewal terms, and (ii) any bankruptcywhich, reorganizationunder all circumstances, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either the Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual/360 basis, substantially amortizes); (D) The Ground Lease either (i) is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances and Title Exceptions; or (ii) is the subject of a subordination, non-in-fact disturbance and attornment agreement or similar agreement to exercise which the Mortgagee on the lessor’s fee 36e Review the Ground Lease and Related Documents for a provision that the Ground Lease may not be amended, modified, canceled or terminated without the prior written consent of the Mortgagee and that any such option action without such consent is not binding on the Mortgagee, its successors or assigns, provided that Mortgagee has provided lessor with notice of its lien in accordance with the name terms of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interestthe Ground Lease. If such a provision is found, it will be a Test pass. Ground Lease and Related Documents 36f Review the applicable Subsidiary Guarantor shall default in Ground Lease and Related Documents for an indication that it has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by either Mortgagor or the performance or observance Mortgagee) that extends not less than 20 years beyond the stated maturity of any term, covenantthe related Mortgage Loan, or condition of any Acceptable ten years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes). If such an indication is found, it will be a Test pass. Ground Lease and Related Documents 36g Review the Title Policy for an indication that the Ground Lease is either (i) is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and the Permitted Encumbrances and Title Exceptions, or (ii) is the subject of a subordination, non-disturbance or attornment agreement or similar agreement to which the Mortgagee on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from defaultlessor’s fee interest is subject. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent either indication is found, it will be a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereon.Test pass. Title Policy; SNDA
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Bank 2025-Bnk51), Pooling and Servicing Agreement (Bank 2025-Bnk51)
Ground Leases. Solely Borrower covenants, represents and warrants to Agent and each of the Lenders with respect to Unencumbered Property, each any ground lease of any of the Parent and the Borrower shallBorrowing Base Properties (a “Qualified Ground Lease” or collectively, and shall cause each other Loan Party to“Qualified Ground Leases”), if any, as follows:
(a) Diligently perform and observe in all material respects all Except as previously disclosed to Agent, to the best knowledge of the termsBorrower, covenantsno default has occurred and is continuing under the terms of any Qualified Ground Lease, and conditions no event has occurred that, with the passage of time or service of notice, or both, would constitute an event of default under any Acceptable Ground Lease as tenant under such Acceptable Qualified Ground Lease; and.
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Each Qualified Ground Lease is in full force and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipteffect.
(c) Exercise any individual option to extend or renew the term of an Acceptable All rents, additional rents, percentage rents and all other charges due and payable under each Qualified Ground Lease upon demand by the Administrative Agent made at any time within thirty have been fully paid.
(30d) days prior Subject to the last day upon which any such option may be exercisedPermitted Encumbrances, Borrower is the owner of the entire lessee’s interest in and under each applicable Subsidiary Guarantor hereby expressly authorizes Qualified Ground Lease and appoints has the Administrative Agent as right and authority under each Qualified Ground Lease to execute this Agreement and other related Loan Documents.
(e) Borrower shall, at its attorney-in-fact to exercise any such option in the name of sole cost and upon behalf of such Subsidiary Guarantorexpense, which power of attorney shall be irrevocable promptly and shall be deemed to be coupled with an interest. If timely perform and observe, or cause the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Tenant under a Qualified Ground Lease on to promptly and timely perform and observe, all the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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, covenants and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor required to be performed and observed by Borrower as lessee under each Qualified Ground Lease (including the payment of all rent, additional rent, percentage rent and other charges required to be paid under such Qualified Ground Lease).
(f) Borrower shall notify Agent promptly in writing after any Obligor receives notice of the occurrence of any material default by the lessor under any Qualified Ground Lease or observed on behalf the occurrence of such Subsidiary Guarantorany event that, to with the end that passage of time or service of notice, or both, would constitute a material default by the rights of such Subsidiary Guarantor in, tolessor under any Qualified Ground Lease, and the receipt by Borrower of any notice (written or otherwise) from the lessor under such Acceptable any Qualified Ground Lease shall be kept unimpaired and free from default. If noting or claiming the landlord occurrence of any default by any Obligor under any Acceptable Qualified Ground Lease or the occurrence of any event that, with the passage of time or service of notice, or both, would constitute a default by any Obligor under any Qualified Ground Lease. Borrower shall promptly deliver to the Administrative Agent a copy of any such written notice of default default.
(g) Borrower shall promptly, after obtaining knowledge of such filing notify Agent orally of any filing, by or against any lessor under a Qualified Ground Lease of a petition under the Bankruptcy Code. Borrower shall thereafter promptly give written notice of such Acceptable Ground Lease, then such notice shall constitute full protection filing to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, setting forth any information available to Borrower as of the date of such filing, the court in good faithwhich such petition was filed, and the relief sought in reliance thereonsuch filing. Borrower shall promptly deliver to Agent any and all notices, summonses, pleadings, applications and other documents received by Borrower in connection with any such petition and any proceedings relating to such petition.
(h) Upon the request of Agent or any Lender, Borrower shall deposit with Agent a copy of each fully executed Qualified Ground Lease certified by Borrower as true and correct.
Appears in 2 contracts
Sources: Master Credit Agreement (Entertainment Properties Trust), Master Credit Agreement (Entertainment Properties Trust)
Ground Leases. Solely with respect to Unencumbered Property, each of the Parent and the (a) Borrower shall, and shall cause each other Loan Party to:
(ai) Diligently pay all rents, additional rents and other sums required to be paid by the applicable Individual Borrowers, as tenant under and pursuant to the provisions of the Ground Leases, as and when such rent or other charge is payable, subject to applicable grace periods afforded Borrower under the Ground Lease (but not, for the avoidance of doubt, any additional grace notice, or cure periods afforded Lender under the Ground Lease or otherwise) and to Borrower’s right to contest (if expressly permitted under the Ground Lease and then in strict accordance with the terms of such Ground Lease) the amount claimed by Lessor to be due;
(ii) diligently perform and observe in all material respects all of the terms, covenants, covenants and conditions of any Acceptable the Ground Lease Leases on the part of the applicable Individual Borrowers, as tenant under such Acceptable Ground Leasethereunder, to be performed and observed, at least three (3) days prior to the expiration of any applicable grace period therein provided; and
(biii) Promptly promptly notify the Administrative Agent Lender of (i) the giving to the applicable Subsidiary Guarantor of any written notice by the lessor under the Ground Leases to Borrower of any default by such Subsidiary Guarantor under Borrower in the performance or observance of any Acceptable of the terms, covenants or conditions of the Ground Lease Leases on the part of Borrower, as tenant thereunder, to be performed or observed, and deliver to the Administrative Agent Lender a true copy of each such notice within five notice.
(5b) Business Days Borrower shall not, without the prior consent of such Subsidiary Guarantor’s receipt thereofLender (which consent may be withheld by Lender in its sole and absolute discretion), surrender or cause or permit the surrender of the leasehold estate created by any of the Ground Leases or terminate or cancel the Ground Leases or modify, change, supplement, alter or amend the Ground Leases, in any material respect, either orally or in writing, and (ii) any bankruptcyBorrower hereby assigns to Lender, reorganization, or insolvency as further security for the payment and performance of the landlord Obligations and for the performance and observance of the terms, covenants and conditions of the Mortgage, this Agreement and the other Loan Documents, all of the rights, privileges and prerogatives of the applicable Individual Borrowers, as tenants under any Acceptable the Ground Leases, to surrender the leasehold estate created by the Ground Lease or of to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease in any notice thereofmaterial respect, and deliver to the Administrative Agent a true copy of any such notice within five (5) Business Days surrender of the applicable Subsidiary Guarantor’s receiptleasehold 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.
(c) Exercise If any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor Individual Borrower shall default in the performance or observance of any material term, covenant, covenant or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided Individual Borrower, as tenant thereunder, then to be performed or observed, then, without limiting the Administrative Agent generality of the other provisions of the Mortgage, 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 necessary or appropriate to cause all of the material terms, covenants, covenants and conditions of such Acceptable the Ground Lease on the part of such Subsidiary Guarantor Individual Borrower, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of such Subsidiary GuarantorIndividual Borrower, to the end that the rights of such Subsidiary Guarantor Individual Borrower in, to, to and under such Acceptable the Ground Lease shall be kept unimpaired as a result thereof and free from default, even though the existence of such event of default or the nature thereof be questioned or denied by Borrower or by any party on behalf of Borrower. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, provided Lender shall not have received any notice of default from the ground lessor and no Event of Default shall have occurred and be continuing, Lender will if practicable provide reasonable advance notice, not to exceed five (5) days, to Borrower prior to, and if not practicable then subsequent to, 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 Operations Agreement, Lender and any Person designated as Lender’s agent by Lender shall have, and are hereby granted, the right to enter upon any Individual Property at any reasonable time, on reasonable notice and from time to time for the purpose of taking any such action. Lender may pay and expend such sums of money as Lender 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 Leases. Borrower hereby agrees to pay to Lender within five (5) days after demand, all such sums so paid and expended by Lender, together with interest thereon from the day of such payment at the Default Rate. All sums so paid and expended by Lender and the interest thereon shall be secured by the legal operation and effect of the Mortgage.
(d) If any Acceptable lessor under a Ground Lease shall deliver to the Administrative Agent Lender a copy of any notice of default sent by said lessor to an Individual Borrower, as tenant under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent Lender for any action taken or omitted to be taken by the Administrative AgentLender, in good faith, in reliance thereon. Borrower shall exercise each individual option, if any, to extend or renew the term of the Ground Leases upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and if Borrower shall fail to do so, Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of the applicable Individual 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 Leases to any mortgage, security deed, lease or other interest on or in the landlord’s interest in all or any part of any Individual Property, unless, in each such case, the written consent of Lender shall have been first had and obtained.
(e) Notwithstanding anything to the contrary contained in this Agreement with respect to each Ground Lease:
(i) The lien of the related Mortgage attaches to all of the applicable Individual Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the U.S. Bankruptcy Code, 11 U.S.C. Sections 101 et seq., including, without limitation, all of such Individual Borrower’s rights, as debtor, to remain in possession of the related Ground Lease Property.
(ii) No Individual Borrower shall, without Lender’s written consent, elect to treat any Ground Lease as terminated under Subsection 365(h)(l) of the U.S. Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(iii) As security for the Debt, each Individual Borrower unconditionally assigns, transfers and sets over to Lender all of its claims and rights to the payment of damages arising from any rejection by the lessor under the Ground Lease under the U.S. Bankruptcy Code. Lender and Borrower shall proceed jointly or in the name of such Individual Borrower in respect of any claim, suit, action or proceeding relating to the rejection of the Ground Lease, including, without limitation, the right to file and prosecute any proofs of claim, complaints, motions, applications, notices and other documents in any case in respect of lessor under the U.S. Bankruptcy Code. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until all of the Debt shall have been satisfied and discharged in full. Any amounts received by Lender or any Individual Borrower as damages arising out of the rejection of a Ground Lease as aforesaid shall be applied to all costs and expenses of Lender (including, without limitation, attorney’s fees and costs) incurred in connection with the exercise of any of its rights or remedies in accordance with the applicable provisions of this Agreement.
(iv) If, pursuant to subsection 365(h) of the Bankruptcy Code, any Individual Borrower seeks to offset, against the rent reserved in any Ground Lease, the amount of any damages caused by the nonperformance by the applicable Ground Lessor of any of its obligations thereunder after the rejection by such Ground Lessor of such Ground Lease under the U.S. Bankruptcy Code, then such Individual Borrower shall not effect any offset of such amounts unless it shall have provided written notice to Lender of its intent to do so and Lender shall have consented thereto.
(v) If any action, proceeding, motion or notice shall be commenced or filed in respect of any lessor of all or any part of any Ground Lease Property in connection with any case under the U.S. Bankruptcy Code, Lender and Borrower shall cooperatively conduct and control any such litigation with counsel agreed upon between Borrower and Lender in connection with such litigation. Borrower shall, upon demand, pay to Lender all costs and expenses (including reasonable attorneys’ fees and costs) actually paid or actually incurred by Lender in connection with the cooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be secured by the lien of the related Mortgage.
(vi) Borrower shall promptly, after obtaining knowledge of such filing notify Lender orally of any filing by or against the Ground Lessor under such Ground Lease of a petition under the U.S. Bankruptcy Code. Borrower shall thereafter promptly 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 in such filing. Borrower shall promptly deliver to Lender any and all notices, summonses, pleadings, applications and other documents received by Borrower in connection with any such petition and any proceedings relating to such petition.
(f) Borrower may exercise, or cause or permit the exercise of, any Ground Lease Purchase Option with respect to any Ground Lease Property without Lender’s prior written consent; provided each of the following conditions is satisfied:
(i) No Event of Default shall have occurred and be continuing;
(ii) Lender shall receive not less than forty-five (45) days advance written notice of the related Individual Borrower’s intention to exercise such Ground Lease Purchase Option unless such Ground Lease sets forth a shorter time period within which such Individual Borrower is required to respond in order to exercise such Ground Lease Purchase Option, in which case the advance notice period hereunder shall instead be such shorter time period;
(iii) The related Individual Borrower shall comply with all of the terms and conditions of the related Ground Lease with respect to such Ground Lease Purchase Option;
(iv) Fee title to the related Ground Lease Property shall be conveyed to the Individual Borrower who is the ground lessee under such Ground Lease pursuant a bona fide arms length transaction and for fair consideration and such acquisition shall not result in a merger of the fee and leasehold estates in such Ground Lease Property;
(v) Borrower shall not incur any Indebtedness in order to finance the exercise of such Ground Lease Purchase Option;
(vi) All third party consents or approvals required in order to acquire fee title to the Ground Lease Property, including without limitation, the consent of any Franchisor, shall have been obtained (satisfaction of this condition may be demonstrated by an Officer’s Certificate certifying to the foregoing);
(vii) Simultaneously with the Individual Borrower’s acquisition of fee title to the Ground Lease Property, such Individual Borrower shall execute, acknowledge and deliver to Lender an amendment and spreader agreement to the applicable Mortgage, or at Lender’s discretion, a new Mortgage, substantially in the same form as the existing Mortgage, together with such other documents as Lender may reasonably require for the purpose of granting Lender a first priority, perfected lien on and security interest in the Individual Borrower’s fee simple estate in the Individual Property and all related Gross Revenue, Accounts, Fixtures, Equipment and other personal property, on the same terms and conditions as the Lien and security interest granted to Lender on the Closing Date;
(viii) Lender shall receive a new Title Insurance Policy (or an endorsement to the existing Title Policy) satisfactory to Lender insuring Lenders’ first priority, perfected Lien on and security interest in such Individual Borrower’s fee simple ownership of the related Ground Lease Property;
(ix) The organizational documents of such Individual Borrower shall, if necessary, be modified to allow the Borrower to hold fee title to such Ground Lease Property;
(x) If the Loan is included in a REMIC Trust and if required by Lender, Lender shall have received a REMIC Opinion with respect to the exercise of the Ground Lease Purchase Option; and
(xi) Lender and/or its Servicer shall be reimbursed for all costs and expenses, including legal fees, incurred in connection with the exercise of such Ground Lease Purchase Option;
(g) Borrower shall not cause or permit the exercise of any Ground Lease Purchase Option by or on behalf of any Affiliate of Borrower or any other Person over whom Borrower has control other than the Individual Borrower which is the ground lessee under the related Ground Lease, and then only in compliance with the preceding Subsection (f).
(h) With respect to the Individual Property located in San Antonio, Texas commonly known as the Springfield Suites, Borrower agrees that during the Term, it will not exercise its right under the applicable Ground Lease to go dark or otherwise cease operations at such Individual Property.
Appears in 2 contracts
Sources: Loan Agreement (W2007 Grace Acquisition I Inc), Loan Agreement (American Realty Capital Hospitality Trust, Inc.)
Ground Leases. Solely with For purposes of this Exhibit D, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency (▇▇▇) or similar leases for purposes of conferring a tax abatement or other benefit. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of the Mortgage Loan Seller, its successors and shall cause each other assigns, the Mortgage Loan Party toSeller represents and warrants that:
(a) Diligently perform and observe The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of any Acceptable the Ground Lease had occurred since the origination of the Mortgage Loan, except as tenant under such Acceptable Ground Lease; andreflected in any written instruments which are included in the related Mortgage File;
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by The lessor under such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to has agreed in a writing included in the Administrative Agent a true copy of each related Mortgage File (or in such notice within five (5Ground Lease) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganizationthat the Ground Lease may not be amended or modified, or insolvency canceled or terminated by agreement of lessor and lessee, without the prior written consent of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.Mortgagee;
(c) Exercise any individual option to extend or renew the term of an Acceptable The Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either Borrower or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
(d) The Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances or (ii) is subject to a subordination, non-in-fact disturbance and attornment agreement to exercise any such option which the Mortgagee on the lessor’s fee interest in the name Mortgaged Property is subject;
(e) The Ground Lease does not place commercially unreasonably restrictions on the identity of the Mortgagee and upon behalf the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (provided that proper notice is delivered to the extent required in accordance with the Ground Lease), and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of (but with prior notice to) the lessor;
(f) The Mortgage Loan Seller has not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease. To the Mortgage Loan Seller’s knowledge, which power there is no material default under such Ground Lease and no condition that, but for the passage of attorney shall be irrevocable time or giving of notice, would result in a material default under the terms of such Ground Lease and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the performance Closing Date;
(g) The Ground Lease or observance ancillary agreement between the lessor and the lessee requires the lessor to give to the Mortgagee written notice of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenantsdefault, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end provides that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any no notice of default or termination is effective against the Mortgagee unless such notice is given to the Mortgagee;
(h) The Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Acceptable the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the Mortgagee’s receipt of notice of any default before the lessor may terminate the Ground Lease;
(i) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender;
(j) Under the terms of the Ground Lease, then such notice shall constitute full protection an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the Administrative Agent ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in clause (k) below) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan documents) the Mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;
(k) In the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to the ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and
(l) Provided that the Mortgagee cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the Mortgagee upon termination of the Ground Lease for any action taken or omitted to be taken by reason, including rejection of the Administrative Agent, Ground Lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 2 contracts
Sources: Mortgage Loan Purchase Agreement (Benchmark 2021-B26 Mortgage Trust), Mortgage Loan Purchase Agreement (Benchmark 2020-B22 Mortgage Trust)
Ground Leases. Solely with respect to Unencumbered Borrowing Base Property, each of the Parent and the Borrower shall, and shall cause each other Loan Party to:
(a) Diligently perform and observe in all material respects all of the terms, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor Property Owner of any notice of any default by such Subsidiary Guarantor Property Owner under any Acceptable Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary GuarantorProperty Owner’s receipt thereof, and (ii) the obtaining of any knowledge of any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease or of the receipt of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary GuarantorProperty Owner’s receipt.;
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor Property Owner hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary GuarantorProperty Owner, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor Property Owner shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor Property Owner and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor Property Owner to be performed or observed on behalf of such Subsidiary GuarantorProperty Owner, to the end that the rights of such Subsidiary Guarantor Property Owner in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereon.
Appears in 2 contracts
Sources: Credit Agreement (American Realty Capital Properties, Inc.), Credit Agreement (American Realty Capital Trust III, Inc.)
Ground Leases. Solely with respect to Unencumbered Property, each of the Parent and the Borrower shall, and shall cause each other Loan Party to:
(a) Diligently Borrower shall cause Mortgage Borrower to, at its sole cost and expense, promptly and timely perform and observe in all the material respects all of the terms, covenants, covenants and conditions of any Acceptable required to be performed and observed by the related Mortgage Borrower as lessee under each Ground Lease as tenant (including, but not limited to, the payment of all rent, additional rent, percentage rent and other charges required to be paid under such Acceptable the Ground Lease; andLeases).
(b) Promptly notify the Administrative Agent of (i) the giving If Mortgage Borrower shall be in default under any Ground Lease, then, subject to the applicable Subsidiary Guarantor terms of any the related Ground Lease, Borrower shall cause the related Mortgage Borrower to grant Lender the right (but not the obligation), upon fifteen (15) days prior written notice of any to Mortgage Borrower, to cause the default by such Subsidiary Guarantor or defaults under any Acceptable Ground Lease to be remedied and deliver otherwise exercise any and all rights of Mortgage Borrower under the Ground Leases, as may be necessary to prevent or cure any default, provided such actions are necessary to protect Lender’s interest under the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofLoan Documents, and (ii) Lender shall have the right to enter all or any bankruptcy, reorganization, or insolvency portion of the landlord under any Acceptable Ground Lease Property at such times and in such manner as Lender deems necessary, to prevent or of to cure any such default; provided, however, Lender shall not be required to provide such fifteen (15) days notice thereof, and deliver to the Administrative Agent a true copy of if Lender reasonably determines that such notice within five Ground Lease could reasonably be terminated during such fifteen (515) Business Days of the applicable Subsidiary Guarantor’s receiptday period.
(c) Exercise The actions or payments of Lender to cure any individual option default by Mortgage Borrower under the Ground Leases shall not remove or waive, as between Borrower and Lender, the default that occurred under this Agreement by virtue of the default by Mortgage Borrower under any Ground Lease. All sums expended by Lender to extend cure any such default shall be paid by Borrower to Lender, upon demand, with interest on such sum at the rate set forth in this Agreement from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the Pledge Agreement.
(d) Borrower shall notify or renew shall cause Mortgage Borrower to notify Lender promptly in writing of the term occurrence of an Acceptable any material default by the lessor under the Ground Leases or the occurrence of any event that, with the passage of time or service of notice, or both, would constitute a material default by the lessor under any Ground Lease, and the receipt by Borrower or Mortgage Borrower of any notice (written or otherwise) from the lessor under any Ground Lease upon noting or claiming the occurrence of any default by Mortgage Borrower under any Ground Lease or the occurrence of any event that, with the passage of time or service of notice, or both, would constitute a default by Mortgage Borrower under any Ground Lease. Borrower shall promptly deliver or cause Mortgage Borrower to deliver to Lender a copy of any such written notice of default.
(e) Within twenty (20) days after receipt of written demand by Lender, Borrower shall use reasonable efforts to cause Mortgage Borrower to obtain from the Administrative Agent made at lessor under the Ground Leases and furnish to Lender the estoppel certificate of each such lessor stating the date through which rent has been paid and whether or not there are any time within thirty defaults thereunder and specifying the nature of such claimed defaults, if any.
(30f) days prior Borrower shall cause Mortgage Borrower to promptly execute, acknowledge and deliver to Lender such instruments as may reasonably be required to permit Lender to cure any default under the last day upon which any Ground Leases or permit Lender to take such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and other action required to enable Lender to cure or remedy the matter in default. Borrower irrevocably appoints the Administrative Agent Lender as its true and lawful attorney-in-fact to exercise do, in its name or otherwise, any and all acts and to execute any and all documents that are necessary to preserve any rights of Mortgage Borrower under or with respect to each Ground Lease, including, without limitation, the right to effectuate any extension or renewal of the Ground Leases, or to preserve any rights of Mortgage Borrower whatsoever in respect of any part of the Ground Leases (and the above powers granted to Lender are coupled with an interest and shall be irrevocable).
(g) Notwithstanding anything to the contrary contained in this Agreement with respect to each Ground Lease:
(i) The lien of the related Mortgage attaches to all of Mortgage Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including, without limitation, all of Mortgage Borrower’s rights, as debtor, to remain in possession of the related Ground Lease Property;
(ii) Borrower shall not permit Mortgage Borrower, without Lender’s written consent, elect to treat the Ground Lease as terminated under subsection 365(h)(l) of the Bankruptcy Code. Any such option election made without Lender’s prior written consent shall be void;
(iii) As security for the Debt, Borrower unconditionally assigns, transfers and sets over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by the lessor under the Ground Lease under the Bankruptcy Code. Lender and Borrower shall proceed jointly or in the name of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of the Ground Lease, including, without limitation, the right to file and upon behalf prosecute any proofs of such Subsidiary Guarantorclaim, which power complaints, motions, applications, notices and other documents in any case in respect of attorney shall be lessor under the Bankruptcy Code. This assignment constitutes a present, irrevocable and shall be deemed to be coupled with an interest. If unconditional assignment of the applicable Subsidiary Guarantor shall default in the performance or observance of any termforegoing claims, covenantrights and remedies, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 continue in effect until all of the terms, covenants, Debt shall have been satisfied and conditions discharged in full. Any amounts received by Lender or Borrower as damages arising out of such Acceptable the rejection of the Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease as aforesaid shall be kept unimpaired applied to all costs and free from default. If expenses of Lender (including, without limitation, attorney’s fees and costs) incurred in connection with the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy exercise of any notice of default under such Acceptable its rights or remedies in accordance with the applicable provisions of this Agreement;
(iv) If, pursuant to subsection 365(h) of the Bankruptcy Code, Mortgage Borrower seeks to offset, against the rent reserved in the Ground Lease, the amount of any damages caused by the nonperformance by the lessor of any of its obligations thereunder after the rejection by lessor of the Ground Lease under the Bankruptcy Code, then such Borrower shall cause Mortgage Borrower to not effect any offset of the amounts so objected to by Lender. If Lender has failed to object as aforesaid within ten (10) days after notice from Borrower or Mortgage Borrower in accordance with the first sentence of this subsection, Borrower may proceed to offset the amounts set forth in Borrower’s or Mortgage Borrower’s notice;
(v) If any action, proceeding, motion or notice shall constitute full protection be commenced or filed in respect of any lessor of all or any part of the Ground Lease Property in connection with any case under the Bankruptcy Code, Lender and Borrower shall cooperatively conduct and control any such litigation with counsel agreed upon between Borrower and Lender in connection with such litigation. Borrower shall, upon demand, pay to Lender all costs and expenses (including reasonable attorneys’ fees and costs) actually paid or actually incurred by Lender in connection with the cooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be secured by the lien of the related Mortgage and Pledge Agreement; and
(vi) Borrower shall promptly, after obtaining knowledge of such filing, notify Lender orally of any filing by or against the lessor under the Ground Lease of a petition under the Bankruptcy Code. Borrower shall thereafter promptly give written notice of such filing to Lender, setting forth any information available to Borrower and Mortgage Borrower as to the Administrative Agent for date of such filing, the court in which such petition was filed, and the relief sought in such filing. Borrower shall promptly deliver to Lender any action taken and all notices, summonses, pleadings, applications and other documents received by Borrower or omitted Mortgage Borrower in connection with any such petition and any proceedings relating to be taken by the Administrative Agent, in good faith, in reliance thereonsuch petition.
Appears in 2 contracts
Sources: Junior Mezzanine Loan Agreement (Sunstone Hotel Investors, Inc.), Mezzanine Loan Agreement (Sunstone Hotel Investors, Inc.)
Ground Leases. Solely with For purposes of this Agreement, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency (▇▇▇) or similar leases for purposes of conferring a tax abatement or other benefit.
1. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of the Seller, its successors and shall cause each other Loan Party toassigns, the Seller represents and warrants that:
(a) Diligently perform and observe The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; andits successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage;
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by The lessor under such Subsidiary Guarantor under any Acceptable Ground Lease has agreed in a writing included in the related Mortgage File (or in such Ground Lease) that the Ground Lease may not be amended or modified, or canceled or terminated by agreement of lessor and deliver to lessee, without the Administrative Agent a true copy prior written consent of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofthe lender, and (ii) any bankruptcy, reorganization, or insolvency no such consent has been granted by the Seller since the origination of the landlord under Mortgage Loan except as reflected in any Acceptable Ground Lease or of any notice thereof, and deliver to written instruments which are included in the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.related Mortgage File;
(c) Exercise any individual option to extend or renew the term of an Acceptable The Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either borrower or the mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
(d) The Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances, or (ii) is subject to a subordination, non-in-fact disturbance and attornment agreement to exercise any such option which the mortgagee on the lessor’s fee interest in the name Mortgaged Property is subject;
(e) The Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and upon behalf the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder, and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor;
(f) The Seller has not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease. To the Seller’s knowledge, which power there is no material default under such Ground Lease and no condition that, but for the passage of attorney shall be irrevocable time or giving of notice, would result in a material default under the terms of such Ground Lease and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default Seller’s knowledge, such Ground Lease is in full force and effect as of the performance Closing Date;
(g) The Ground Lease or observance ancillary agreement between the lessor and the lessee requires the lessor to give to the lender written notice of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenantsdefault, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end provides that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any no notice of default or termination is effective against the lender unless such notice is given to the lender;
(h) A lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Acceptable the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the lender’s receipt of notice of any default before the lessor may terminate the Ground Lease;
(i) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by the Seller in connection with loans originated for securitization;
(j) Under the terms of the Ground Lease, then such notice shall constitute full protection an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the Administrative Agent ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in clause (k) below) will be applied either to the repair or to the restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Loan Documents) the lender or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;
(k) In the case of a total or substantially total loss or taking, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and
(l) Provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the lender upon termination of the Ground Lease for any action taken or omitted to be taken by reason, including rejection of the Administrative Agent, Ground Lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 1 contract
Sources: Mortgage Asset Purchase Agreement (Arbor Realty Trust Inc)
Ground Leases. Solely with With respect to Unencumbered any Financed Properties where all or a portion of any such Financed Property is a leasehold estate, and the related Mortgage does not also encumber the related ground lessor’s fee interest in such Financed Property, each based upon the terms of the Parent Ground Lease and any estoppel letter or other writing received from the Borrower shallground lessor and included in the related Lease File and, and shall cause each other Loan Party toif applicable, the related Mortgage:
(a) Diligently perform and observe in all material respects all The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded. The ground lessor has permitted the interest of the terms, covenants, and conditions related lessee to be encumbered by the related Mortgage. There has been no change in the terms of any Acceptable the Ground Lease as tenant under such Acceptable Ground Lease; andsince its recordation, except by any written instruments which are included in the related Lease File.
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable The Ground Lease and deliver to may not be amended, modified, canceled or terminated without the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency prior written consent of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days owner of the applicable Subsidiary Guarantor’s receiptMortgage and any such action without such consent is not binding the owner of the Loan and its successors and assigns.
(c) Exercise any individual option to extend or renew the term of an Acceptable The Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints is enforceable, by the Administrative Agent as its attorney-in-fact lender) that extends beyond the stated maturity of the Loan.
(d) Based on the Title Insurance Policy referenced in Section 4.1.20 hereof, the ground leasehold interest is not subject to exercise any such option in liens or encumbrances superior to, or of equal priority with, the name of and upon behalf of such Subsidiary GuarantorMortgage, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If other than the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable ground lessor’s related fee interest.
(e) The Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior is assignable to the expiration of any applicable cure period provided thereunder, then lenders and their assigns without the 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 consent of the terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under ground lessor thereunder.
(f) Such Borrower has not received any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any written notice of default under or notice of termination of such Acceptable Ground Lease. The Ground Lease is in full force and effect and no default has occurred under the Ground Lease and there is no existing condition which, but for the passage of time or the giving of notice, would result in a material default under the terms of the Ground Lease.
(g) The Ground Lease or ancillary agreement between the lessor and the lessee requires the lessor to give to the lender written notice of any default, provides that no notice of default or termination is effective unless such notice is given to the lenders, and requires that the ground lessor will supply an estoppel.
(h) The lenders are permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings, or to take other action so long as the lenders are proceeding diligently) to cure any default under the Ground Lease which is curable after the receipt of notice of any default, before the ground lessor may terminate the Ground Lease.
(i) The Ground Lease does not impose restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender. The ground lessor is not permitted to disturb the possession, interest or quiet enjoyment of any subtenant of the ground lessee in the relevant portion of the related Financed Property subject to the Ground Lease for any reason, or in any material manner, which would adversely affect the security provided by the related Mortgage.
(j) Any related insurance proceeds or condemnation award (other than in respect of a total or substantially total loss or taking) is required under the related Ground Lease to be applied either to the repair or restoration of all or part of the related Financed Property, with the lenders or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Loan, together with any accrued interest.
(k) Any related insurance proceeds, or condemnation award in respect of a total or substantially total loss or taking of the related Financed Property is required to be applied first to the payment of the outstanding principal balance of the Loan, together with any accrued interest (except as provided by applicable law or in cases where a different allocation would not be viewed as commercially unreasonable by any institutional investor, taking into account the relative duration of the Ground Lease and the related Mortgage and the ratio of the market value of the related Financed Property to the outstanding principal balance of such Loan). Pursuant to the related Ground Lease, then such notice shall constitute full protection until the principal balance and accrued interest are paid in full, neither the lessee nor the ground lessor under the Ground Lease has an option to terminate or modify the Administrative Agent Ground Lease without the prior written consent of the lender as a result of any casualty or partial condemnation, except to provide for an abatement of the rent.
(l) Provided that the lenders cure any defaults that are susceptible to being cured, the ground lessor has agreed to enter into a new lease upon termination of the Ground Lease for any action taken or omitted to be taken by reason, including rejection of the Administrative Agent, Ground Lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 1 contract
Ground Leases. Solely with For purposes of the Mortgage Asset Purchase Agreement, a “Ground Lease” shall mean a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a ground leasehold estate in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of Seller, its successors and shall cause each other Loan Party toassigns, Seller represents and warrants that:
(a) Diligently perform and observe The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenantsits successors or assigns in a manner that would materially and adversely affect the security provided by the related Mortgage. To Seller’s knowledge, and conditions no material change in the terms of any Acceptable the Ground Lease as tenant under such Acceptable Ground Lease; andhad occurred since the origination of the Mortgage Loan, except by any written instruments which are included in the related Mortgage Asset File;
(b) Promptly notify The lessor under such Ground Lease has agreed in a writing included in the Administrative Agent related Asset File (or in such Ground Lease) that the Ground Lease may not be amended, modified, canceled or terminated without the prior written consent of (i) the giving to lender and that any such action without such consent is not binding on the applicable Subsidiary Guarantor of any lender, its successors or assigns, provided that lender has provided lessor with notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to its lien in accordance with the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency terms of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.Lease; Exhibit B-13 USActive 53033552.9
(c) Exercise any individual option to extend or renew the term of an Acceptable The Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either Borrower or the mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
(d) The Ground Lease (i) is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances, or (ii) is subject to a subordination, non-in-fact disturbance and attornment agreement to exercise any such option which the mortgagee on the lessor’s fee interest in the name Mortgaged Property is subject;
(e) The Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and upon behalf the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated and all amounts due thereunder have been paid), and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such ground lease has not been terminated and all amounts due thereunder have been paid) ;
(f) The Seller has not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease. To the Seller’s knowledge, which power there is no material default under such Ground Lease and no condition that, but for the passage of attorney shall be irrevocable time or giving of notice, would result in a material default under the terms of such Ground Lease and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default Seller’s knowledge, such Ground Lease is in full force and effect as of the performance Upsize Date;
(g) The Ground Lease or observance ancillary agreement between the lessor and the lessee requires the lessor to give to the lender written notice of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenantsdefault, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end provides that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any no notice of default or termination is effective against the lender unless such notice is given to the lender and requires that the ground lessor will supply an estoppel;
(h) A lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Acceptable the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the lender’s receipt of notice of any default before the lessor may terminate the Ground Lease;
(i) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender; USActive 53033552.9
(j) Under the terms of the Ground Lease, then such notice shall constitute full protection an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the Administrative Agent ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in subpart (k) below) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Asset Documents) the lender or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;
(k) In the case of a total or substantial taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and
(l) Provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with lender upon termination of the Ground Lease for any action taken or omitted to be taken by reason, including rejection of the Administrative Agent, Ground Lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 1 contract
Sources: Mortgage Asset Purchase Agreement (Ares Commercial Real Estate Corp)
Ground Leases. Solely with respect to Unencumbered Property, each of the Parent and the (a) Borrower shall, at its sole cost and shall cause each other Loan Party to:
(a) Diligently expense, promptly and timely perform and observe in all the material respects all of the terms, covenants, covenants and conditions of any Acceptable required to be performed and observed by Borrower as lessee under the Ground Lease as tenant (including, but not limited to, the payment of all rent, additional rent, percentage rent and other charges required to be paid under such Acceptable the Ground Lease; and).
(b) Promptly notify If Borrower shall be in default under the Administrative Agent of (i) the giving Ground Lease, then, subject to the applicable Subsidiary Guarantor terms of the Ground Lease, Borrower shall grant Lender the right (but not the obligation), to cause the default or defaults under the Ground Lease to be remedied and otherwise exercise any notice and all rights of Borrower under the Ground Lease, as may be necessary to prevent or cure any default by provided such Subsidiary Guarantor actions are necessary to protect Lender’s interest under any Acceptable Ground Lease and deliver the Loan Documents, and, subject to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency terms of the landlord under Management Agreement, Lender shall have the right upon reasonable prior written notice to enter all or any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days portion of the applicable Subsidiary Guarantor’s receiptProperty at such times and in such manner as Lender deems necessary to cure any such default.
(c) Exercise The actions or payments of Lender to cure any individual option to extend or renew default by Borrower under the term of an Acceptable Ground Lease upon demand shall not remove or waive, as between Borrower and Lender, the default that occurred under this Agreement by virtue of the default by Borrower under the Ground Lease. All sums expended by Lender to cure any such default shall be paid by Borrower to Lender, within ten (10) days of demand, with interest on such sum at the rate set forth in this Agreement from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the Administrative Agent made at Mortgage.
(d) Borrower shall notify Lender promptly in writing of the occurrence of any time material default by the lessor under the Ground Lease and the receipt by Borrower of any notice (written or otherwise) from the Ground Lessor noting or claiming the occurrence of any default by Borrower under the Ground Lease. Borrower shall promptly deliver to Lender a copy of any such written notice of default.
(e) Borrower shall use commercially reasonable efforts to obtain from the Ground Lessor and furnish to Lender within thirty (30) days prior of receipt of written request, the estoppel certificate of the Ground Lessor stating the date through which rent has been paid and whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any, provided that Borrower shall not be required to use such commercially reasonable efforts to obtain and deliver such certificate more frequently than once in any calendar year.
(f) Borrower shall within ten (10) Business Days execute, acknowledge and deliver to Lender such instruments as may reasonably be required to permit Lender to cure any default under the Ground Lease if not so timely cured by Borrower or permit Lender to take such other action required to enable Lender to cure or remedy the matter in default and preserve the security interest of Lender under the Loan Documents with respect to the last day upon which any Property. Upon the failure of Borrower to execute, acknowledge or deliver such option may be exercisedinstruments within such ten (10) Business Day period, and each applicable Subsidiary Guarantor hereby expressly authorizes and Borrower irrevocably appoints the Administrative Agent Lender as its true and lawful attorney-in-fact to exercise do any and all acts and to execute any and all documents that are necessary to preserve any rights of Borrower under or with respect to the Ground Lease, including, without limitation, the right to effectuate any extension or renewal of the Ground Lease, or to preserve any rights of Borrower whatsoever in respect of any part of the Ground Lease (and the above powers granted to Lender are coupled with an interest and shall be irrevocable), provided that the same do not subject Borrower to any increased liabilities thereunder.
(g) Notwithstanding anything to the contrary contained in this Agreement with respect to the Ground Lease:
(i) The lien of the Mortgage attaches to all of Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including, without limitation, all of Borrower’s rights, as debtor, to remain in possession of the Property.
(ii) Borrower shall not, without Lender’s written consent, elect to treat the Ground Lease as terminated under subsection 365(h)(l) of the Bankruptcy Code. Any such option election made without Lender’s prior written consent shall be void.
(iii) As security for the Debt, Borrower unconditionally assigns, transfers and sets over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by the Ground Lessor under the Bankruptcy Code. Lender and Borrower shall proceed jointly or in the name of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of the Ground Lease, including, without limitation, the right to file and upon behalf prosecute any proofs of such Subsidiary Guarantorclaim, which power complaints, motions, applications, notices and other documents in any case in respect of attorney shall be lessor under the Bankruptcy Code. This assignment constitutes a present, irrevocable and shall be deemed to be coupled with an interest. If unconditional assignment of the applicable Subsidiary Guarantor shall default in the performance or observance of any termforegoing claims, covenantrights and remedies, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 continue in effect until all of the terms, covenants, Debt shall have been satisfied and conditions discharged in full. Any amounts received by Lender or Borrower as damages arising out of such Acceptable the rejection of the Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease as aforesaid shall be kept unimpaired applied to all actual out-of-pocket costs and free from default. If reasonable expenses of Lender (including, without limitation, attorney’s fees and costs) incurred in connection with the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy exercise of any notice of default under such Acceptable its rights or remedies in accordance with the applicable provisions of this Agreement.
(iv) If, pursuant to subsection 365(h) of the Bankruptcy Code, Borrower seeks to offset, against the rent reserved in the Ground Lease, the amount of any damages caused by the nonperformance by the lessor of any of its obligations thereunder after the rejection by the Ground Lessor under the Bankruptcy Code, then such Borrower shall not effect any offset of the amounts so objected to by Lender. 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, Borrower may proceed to offset the amounts set forth in Borrower’s notice.
(v) If any action, proceeding, motion or notice shall constitute full protection be commenced or filed in respect of Ground Lessor in connection with any case under the Bankruptcy Code, Lender and Borrower shall cooperatively conduct and control any such litigation with counsel agreed upon between Borrower and Lender in connection with such litigation. Borrower shall, upon demand, pay to Lender all costs and reasonable expenses (including reasonable attorneys’ fees and costs) actually paid or actually incurred by Lender in connection with the cooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be secured by the lien of the related Mortgage.
(vi) Borrower shall promptly, after obtaining knowledge of such filing notify Lender orally of any filing by or against the lessor under the Ground Lease of a petition under the Bankruptcy Code’ Borrower shall thereafter promptly give written notice of such filing to Lender, setting forth any information available to Borrower as to the Administrative Agent for date of such filing, the court in which such petition was filed, and the relief sought in such filing. Borrower shall promptly deliver to Lender any action taken or omitted and all notices, summonses, pleadings, applications and other documents received by Borrower in connection with any such petition and any proceedings relating to be taken by the Administrative Agent, in good faith, in reliance thereonsuch petition.
Appears in 1 contract
Ground Leases. Solely with With respect to Unencumbered Property, each of the Parent and the Borrower shallGround Lease, and shall cause each other Loan Party toexcept to the extent the effect of which is not reasonably likely to have a Material Adverse Effect:
(a) Diligently perform and observe in all material respects all The Ground Lease contains the entire agreement of the termsGround Lessor and the applicable Asset Entity pertaining to the Ground Leased Tower Site covered thereby. The Asset Entities have no estate, covenantsright, title or interest in or to the Ground Leased Tower Site except under and conditions pursuant to the Ground Lease. The Issuer Entity shall have caused or will cause the Asset Entities to deliver, a true and correct copy of any Acceptable the Ground Lease to Indenture Trustee and the Ground Lease has not been modified, amended or assigned except as tenant under such Acceptable Ground Lease; andset forth therein.
(b) Promptly notify The Asset Entities have obtained title insurance insuring the Administrative Agent applicable Asset Entity’s leasehold interest in each of the Ground Leases.
(ic) There are no rights to terminate the giving Ground Lease other than the Ground Lessor’s right to terminate by reason of default, casualty, condemnation or other reasons, in each case as expressly set forth in the applicable Ground Lease.
(d) The Ground Lease is in full force and effect, and no Ground Lease Default exists on the part of the Asset Entities or, to the Asset Entities’ Knowledge, on the part of the Ground Lessor under the Ground Lease. The Asset Entities have not received any written notice that a Ground Lease Default exists, or that the Ground Lessor or any third party alleges the same to exist.
(e) The applicable Asset Entity is the exclusive owner of the lessee’s interest under and pursuant to the applicable Subsidiary Guarantor Ground Lease and has not assigned, transferred, or encumbered its interest in, to, or under the Ground Lease (other than assignments that will terminate on or prior to the Closing Date), except in favor of Indenture Trustee pursuant to this Indenture and the other Transaction Documents.
(f) The Ground Lease or a memorandum thereof or other instrument sufficient to permit recording of a deed of trust or similar security instrument has been recorded and the Ground Lease (or the applicable Estoppel) permits the interest of the lessee to be encumbered by this Indenture.
(g) Except for the Permitted Encumbrances, the interests in the Ground Lease is not subject to any Liens superior to, or of equal priority with, this Indenture unless a non-disturbance agreement has been obtained from the applicable holder of such Lien.
(h) Except as set forth on Schedule 6.25(h), the Ground Lease (or the applicable Estoppel) requires the Ground Lessor to give notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver the Asset Entities to the Administrative Agent a true copy of each such Indenture Trustee and Servicer which notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganizationmust be delivered before the Ground Lessor may terminate the Ground Lease, or insolvency of the landlord under any Acceptable Ground Lease or the Estoppel provides that notice of any termination given under the Ground Lease is not effective against the Indenture Trustee unless a copy of the notice thereof, and deliver has been delivered to the Administrative Agent a true copy of such notice within five (5) Business Days of Indenture Trustee and Servicer in the applicable Subsidiary Guarantor’s receiptmanner described in the Ground Lease.
(ci) Exercise Except as set forth on Schedule 6.25(i), the Indenture Trustee is permitted to cure any individual option to extend or renew default under the term of an Acceptable Ground Lease that is curable after the receipt of notice of any default.
(j) Except as set forth on Schedule 6.25(j), the Ground Lease has a term (including all available extensions) that extends not less than ten (10) years beyond the Anticipated Repayment Date.
(k) The Ground Lease does not impose restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender.
(l) Except as set forth on Schedule 6.25 (l), the Asset Entity’s interest in the Ground Lease is assignable to the Indenture Trustee upon demand by notice to, but without the Administrative Agent made at consent of, the Ground Lessor (or, if any time within thirty (30) days such consent is required, it has been obtained prior to the last day upon which any such option may be exercisedClosing Date) or, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints except to the Administrative Agent as its attorney-in-fact extent same is not reasonably likely to exercise any such option have a Material Adverse Effect, in the name of event that it is so assigned, it is further assignable by the Indenture Trustee and its successors and assigns upon behalf of such Subsidiary Guarantornotice to, which power of attorney shall be irrevocable and shall be deemed but without a need to be coupled with an interest. If obtain the consent of, the Ground Lessor.
(m) Except as set forth on Schedule 6.25(m), the Ground Lease (or the applicable Subsidiary Guarantor shall default in Estoppel) requires the performance or observance Ground Lessor to enter into a new lease with the Indenture Trustee upon termination of any term, covenant, or condition of any Acceptable the Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 following rejection of the terms, covenants, and conditions of such Acceptable Ground Lease on in a bankruptcy proceeding under the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary GuarantorBankruptcy Code, to the end provided that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under Indenture Trustee cures any Acceptable Ground Lease shall deliver defaults that are susceptible to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken being cured by the Administrative Agent, in good faith, in reliance thereonIndenture Trustee.
Appears in 1 contract
Ground Leases. Solely with respect to Unencumbered Property, each of the Parent and the Borrower shall, and shall cause each other Loan Party to:
(a) Diligently perform and observe in all material respects all of the terms, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) The Ground Leases contain the giving entire agreement of the Ground Lessor and the applicable Loan Party pertaining to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Borrowing Base Asset that is subject to a Ground Lease and deliver satisfy the requirements of this Agreement to be a Ground Lease. The Loan Parties have no estate, right, title or interest in or to any Borrowing Base Asset subject to a Ground Lease except under and pursuant to the applicable Ground Leases. The Loan Parties have delivered a true and correct copy of the Ground Leases (together with all modification and/or assignment documents) to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofand the Ground Leases have not otherwise been modified, and amended or assigned.
(ii) any bankruptcyTo the knowledge of each Loan Party, reorganizationthe applicable Ground Lessor is the exclusive fee simple owner of its Borrowing Base Asset, or insolvency subject to a Ground Lease, subject only to the Ground Lease and Liens described in clauses (a), (b), (d) (e), (h) and (i) of the landlord under any Acceptable Ground Lease or definition of any notice thereofPermitted Liens, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days applicable Ground Lessor is the sole owner of the lessor’s interest in the applicable Subsidiary Guarantor’s receiptGround Lease.
(ciii) Exercise any individual option There are no rights to extend or renew the term of an Acceptable terminate a Ground Lease upon demand other than the Ground Lessor’s right to terminate by reason of default, casualty, condemnation or other reasons, in each case as expressly set forth in the Administrative Agent made at any time within thirty applicable Ground Lease.
(30iv) days prior Each Ground Lease is in full force and effect and, to the last day upon which any such option may be exercisedknowledge of each Loan Party, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints no breach or default or event that with the Administrative Agent as its attorney-in-fact to exercise any such option in the name giving of and upon behalf notice or passage of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If time would constitute a breach or default under the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease (a “Ground Lease Default”) exists on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act Loan Parties or take any action as may be appropriate to cause all of the terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor the Ground Lessor under a Ground Lease. All base rent and additional rent due and payable under a Ground Lease has been paid through the date hereof and the Loan Parties are not required to be performed pay any deferred or observed on behalf of such Subsidiary Guarantor, accrued rent after the date hereof under a Ground Lease. The Loan Parties have not received any written notice that a Ground Lease Default has occurred or exists (except for matters which have been previously disclosed to Administrative Agent and resolved to the end that mutual satisfaction of the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver parties to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection ) or any third party alleges the same to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonexist.
Appears in 1 contract
Ground Leases. Solely (A) With respect to each Ground Lease encumbered by a Deed of Trust:
(i) The Ground Lease contains the entire agreement of the Ground Lessor and the applicable Borrower pertaining to the Ground Leased Property covered thereby. The Borrowers have no estate, right, title or interest in or to the Ground Leased Property except under and pursuant to the Ground Lease. The Borrowers have delivered a true and correct copy of the Ground Lease to Lender and the Ground Lease has not been modified, amended or assigned except as set forth therein.
(ii) The Ground Lessor is the exclusive fee simple owner of its Ground Leased Property.
(iii) There are no rights to terminate the Ground Lease other than the Ground Lessor's right to terminate by reason of default, casualty, condemnation or other reasons, in each case as expressly set forth in the applicable Ground Lease.
(iv) The Ground Lease is in full force and effect, and no breach or default or event that with the giving of notice or passage of time would constitute a breach or default under the Ground Lease (a "GROUND LEASE DEFAULT") exists on the part of the Borrowers or, to the Borrowers' Knowledge, on the part of the Ground Lessor under the Ground Lease. The Borrowers have not received any written notice that a Ground Lease Default exists, or that the Ground Lessor or any third party alleges the same to exist.
(v) The applicable Borrower is the exclusive owner of the lessee's interest under and pursuant to the applicable Ground Lease and has not assigned, transferred, or encumbered its interest in, to, or under the Ground Lease (other than assignments that will terminate on or prior to Closing), except in favor of Lender pursuant to this Loan Agreement and the other Loan Documents.
(vi) Except with respect to Unencumbered PropertyGround Leased Properties located in the State of Maryland, each the Ground Lease or a memorandum thereof has been recorded and the Ground Lease (or a separate agreement with respect thereto (the "ESTOPPEL")) permits the interest of the Parent lessee to be encumbered by the related Deed of Trust and, with respect to Ground Leased Properties located in the State of Maryland, the Ground Lease or a Memorandum thereof has been recorded to the extent necessary to record the applicable Deed of Trust and to the Borrower shallextent the failure to have such Ground Lease or Memorandum thereof recorded is reasonably likely, and shall cause each other Loan Party to:in the aggregate, to have a Material Adverse Effect.
(avii) Diligently perform Except for the Permitted Encumbrances and observe as set forth on Schedule 4.25(A)(vii), the interests in all material respects all of the terms, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; andis not subject to any liens or encumbrances superior to, or of equal priority with, the related Deed of Trust.
(bviii) Promptly notify Except as set forth on Schedule 4.25(A)(viii), the Administrative Agent of Ground Lease (i) the giving to or the applicable Subsidiary Guarantor of any Estoppel) requires the Ground Lessor to give notice of any default by the Borrowers to the Lender which such Subsidiary Guarantor under any Acceptable notice must be delivered before the Ground Lessor may terminate the Ground Lease, or the Ground Lease and deliver or the Estoppel provides that notice of termination given under the Ground Lease is not effective against the Lender unless a copy of the notice has been delivered to the Administrative Agent Lender in the manner described in the Ground Lease.
(ix) The Lender is permitted to cure any default under the Ground Lease that is curable after the receipt of notice of any default.
(x) Except as set forth on Schedule 4.25(A)(x), the Ground Lease has a term that extends not less than 10 years beyond the Anticipated Repayment Date.
(xi) The Ground Lease does not impose restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender.
(xii) The Borrower's interest in the Ground Lease is assignable to the Trustee upon notice to, but without the consent of, the Ground Lessor (or, if any such consent is required, it has been obtained prior to the Closing Date) or, except to the extent same is not reasonably likely to have a Material Adverse Effect, in the event that it is so assigned, it is further assignable by the Trustee and its successors and assigns upon notice to, but without a need to obtain the consent of, the Ground Lessor.
(xiii) The Ground Lease requires the Ground Lessor to enter into a new lease with the Lender upon termination of the Ground Lease following rejection of the Ground Lease in a bankruptcy proceeding under the Bankruptcy Code, provided that the Lender cures any defaults that are susceptible to being cured by Lender, except to the extent that in any bankruptcy proceeding of any Borrower the failure to have any such new lease provision would not result in the rejection of Ground Leases that would have a Material Adverse Effect.
(B) With respect to the Ground Leases constituting an Additional Pledged Property:
(i) The Ground Lease contains the entire agreement of the Ground Lessor and the applicable Borrower pertaining to the Ground Leased Property covered thereby. The Borrowers have no estate, right, title or interest in or to the Ground Leased Property except under and pursuant to the Ground Leases. The Borrowers have delivered a true and correct copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofthe Ground Lease to Lender and the Ground Lease has not been modified, and amended or assigned except as set forth therein.
(ii) any bankruptcy, reorganization, or insolvency To the Knowledge of the landlord under any Acceptable Borrowers, the Ground Lease or Lessor is the exclusive fee simple owner of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receiptits Ground Leased Property.
(ciii) Exercise any individual option There are no rights to extend or renew terminate the term of an Acceptable Ground Lease upon demand other than the Ground Lessor's right to terminate by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercisedreason of default, and casualty, condemnation or other reasons, in each applicable Subsidiary Guarantor hereby case as expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option set forth in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease.
(iv) The Ground Lease is in full force and effect, no breach or default or event that with the giving of notice or passage of time would constitute a breach or default under the Ground Lease (a "GROUND LEASE DEFAULT") exists on the part of such Subsidiary Guarantor and shall fail to cure the same prior Borrowers or, to the expiration of any applicable cure period provided thereunderBorrowers' Knowledge, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor the Ground Lessor under the Ground Lease. The Borrowers have not received any written notice that a Ground Lease Default exists, or that the Ground Lessor or any third party alleges the same to be performed or observed on behalf exist.
(v) The applicable Borrower is the exclusive owner of such Subsidiary Guarantor, the lessee's interest under and pursuant to the end that the rights of such Subsidiary Guarantor Ground Lease and has not assigned, transferred, or encumbered its interest in, to, and or under such Acceptable the Ground Lease shall be kept unimpaired (other than assignments that will terminate on or prior to Closing), except in favor of Lender pursuant to this Loan Agreement and free from default. If the landlord under any Acceptable other Loan Documents.
(vi) The Ground Lease shall deliver to the Administrative Agent does not impose restrictions on subletting that would be viewed as commercially unreasonable by a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonprudent commercial mortgage lender.
Appears in 1 contract
Ground Leases. Solely with For purposes of this Annex E-1, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency (▇▇▇) or similar leases for purposes of conferring a tax abatement or other benefit. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of Sponsor, its successors and shall cause each other Loan Party toassigns, Sponsor represents and warrants that:
(a) Diligently perform and observe The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of any Acceptable the Ground Lease had occurred since the origination of the Mortgage Loan, except as tenant under such Acceptable Ground Lease; andreflected in any written instruments which are included in the related Mortgage File;
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by The lessor under such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to has agreed in a writing included in the Administrative Agent a true copy of each related Mortgage File (or in such notice within five (5Ground Lease) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganizationthat the Ground Lease may not be amended or modified, or insolvency canceled or terminated by agreement of lessor and lessee, without the prior written consent of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.Mortgagee;
(c) Exercise any individual option to extend or renew the term of an Acceptable The Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
(d) The Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances or (ii) is subject to a subordination, non-in-fact disturbance and attornment agreement to exercise any such option which the Mortgagee on the lessor’s fee interest in the name Mortgaged Property is subject;
(e) The Ground Lease does not place commercially unreasonably restrictions on the identity of the Mortgagee and upon behalf the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (provided that proper notice is delivered to the extent required in accordance with the Ground Lease), and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of (but with prior notice to) the lessor;
(f) The Sponsor has not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease. To the Sponsor’s knowledge, which power there is no material default under such Ground Lease and no condition that, but for the passage of attorney shall be irrevocable time or giving of notice, would result in a material default under the terms of such Ground Lease and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default Sponsor’s knowledge, such Ground Lease is in full force and effect as of the performance Closing Date;
(g) The Ground Lease or observance ancillary agreement between the lessor and the lessee requires the lessor to give to the Mortgagee written notice of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenantsdefault, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end provides that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any no notice of default or termination is effective against the Mortgagee unless such notice is given to the Mortgagee;
(h) The Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Acceptable the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the Mortgagee’s receipt of notice of any default before the lessor may terminate the Ground Lease;
(i) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender;
(j) Under the terms of the Ground Lease, then such notice shall constitute full protection an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the Administrative Agent ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in subpart (k)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Loan Documents) the Mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;
(k) In the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to the ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and
(l) Provided that the Mortgagee cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the Mortgagee upon termination of the Ground Lease for any action taken or omitted to be taken by reason, including rejection of the Administrative Agent, Ground Lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 1 contract
Sources: Mortgage Loan Purchase Agreement (GS Mortgage Securities Trust 2015-Gc30)
Ground Leases. Solely Except as otherwise set forth in Schedule 4.1.43 attached hereto, each of Borrower and Maryland Owner represents and warrants to Lender as of the Closing Date the following with respect to Unencumbered Property, each of the Parent and the Borrower shall, and shall cause each other Loan Party toGround Lease:
(a) Diligently perform and observe in all material respects all the Ground Lease (or a memorandum of such Ground Lease) has been duly recorded. The Ground Lease permits the interest of the termsapplicable Individual Borrower to be encumbered by a mortgage, covenantsdeed of trust, indemnity deed of trust or deed to secure debt (provided that the mortgage, deed of trust, indemnity deed of trust or deed to secure debt, as applicable, is at all times subject and conditions subordinate to the Ground Lease) or the Ground Lessor has approved and consented to the encumbrance of any Acceptable the Ground Lease Property by the applicable Security Instrument. There have not been amendments or modifications to the terms of the Ground Lease since recordation of the Ground Lease (or a memorandum thereof), with the exception of written instruments which have been recorded. The Ground Lease may not be terminated, surrendered or amended without the prior written consent of Lender; which such consent, with respect to amendment, shall not be unreasonably withheld, conditioned or delayed; provided that the Individual Borrowers that are tenants under the Ground Lease may exercise renewal rights without Lender’s consent and provided that the Ground Lessor shall not be prevented from exercising its remedies in accordance with the Ground Lease if the obligations of Individual Borrower under the Ground Lease are not performed as tenant under such Acceptable provided in the Ground Lease; and;
(b) Promptly notify except for the Administrative Agent Permitted Encumbrances and other encumbrances of record, the applicable Individual Borrower’s interest in the related Ground Lease is not subject to any Liens or encumbrances superior to, or of equal priority with, the applicable Security Instrument other than the Ground Lessor’s related fee interest;
(ic) the applicable Individual Borrower’s interest in the Ground Lease is assignable without the consent of Ground Lessor to Lender, the purchaser at any foreclosure sale or the transferee under a deed or assignment in lieu of foreclosure in connection with the foreclosure of the Lien of the Security Instrument or transfer of the applicable Individual Borrower’s leasehold estate by deed or assignment in lieu of foreclosure. Thereafter, subject to certain conditions and restrictions set forth therein, the Ground Lease is further assignable by such transferee and its successors and assigns without the consent of the applicable Ground Lessor;
(d) as of the date hereof, the Ground Lease is in full force and effect and to Borrower’s Knowledge no material default has occurred under the Ground Lease that is continuing and there is no existing condition which, but for the passage of time or the giving of notice, could result in a material default under the terms of the Ground Lease;
(e) under the terms of the Ground Lease and the Loan Documents, taken together, any related insurance and condemnation proceeds that are paid or awarded to Borrower with respect to the applicable Subsidiary Guarantor leasehold interest created thereby will be assigned to Lender and Lender shall have the right to, (subject to the terms of the Loan Documents, either hold and disburse the proceeds for the payment of the costs and expenses for repairing or restoring all or part of the related portion of the Ground Lease Property, as the repair or restoration progresses, or apply the proceeds to the payment of the outstanding principal balance of the Loan together with any accrued interest thereon;
(f) the Ground Lease does not impose any restrictions on subleasing;
(g) the Ground Lease requires the Ground Lessor to give notice of any default by such Subsidiary Guarantor the applicable Individual Borrower under any Acceptable the Ground Lease and deliver to Lender prior to exercising its remedies thereunder;
(h) Lender has the Administrative Agent a true copy of each such notice within five opportunity (5) Business Days of such Subsidiary Guarantor’s receipt thereofincluding, and (ii) any bankruptcywhere necessary, reorganization, or insolvency sufficient time to gain possession of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days interest of the applicable Subsidiary Guarantor’s receipt.
(cIndividual Borrower under the Ground Lease) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease that is curable, after the receipt of notice of the default, before the Ground Lessor thereunder may terminate such Ground Lease;
(i) each Ground Lease has a term (including all extensions exercisable at the option of the applicable Individual Borrower) which extends not less than eighteen (18) years beyond the Maturity Date; and
(j) each Ground Lease requires the Ground Lessor, then upon certain specified conditions being satisfied, to enter into a new lease upon termination (prior to expiration of the term thereof) of such notice shall constitute full protection to the Administrative Agent Ground Lease for any action taken reason, including rejection or omitted to be taken by disaffirmation of the Administrative Agent, Ground Lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 1 contract
Sources: Loan and Security Agreement (Urban Edge Properties)
Ground Leases. Solely with With respect to Unencumbered any Purchased Asset where the underlying Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related underlying Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of Seller, its successors and shall cause each other Loan Party toassigns, Seller represents and warrants that:
(ai) Diligently perform and observe in all material respects all of the terms, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) the giving to Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording in the applicable Subsidiary Guarantor jurisdiction; (ii) the Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the lessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage and (iii) no material change in the terms of the Ground Lease had occurred since its recordation, except by any written instrument which are included in the related Purchased Asset File;
(ii) the lessor under such Ground Lease has agreed in a writing included in the related Purchased Asset File (or in such Ground Lease) that the Ground Lease may not be amended or modified in any material respect, or canceled or terminated, without the prior written consent of the mezzanine lender (except termination or cancellation if (i) notice of any a default by such Subsidiary Guarantor under any Acceptable the Ground Lease and deliver is provided to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, mezzanine lender and (ii) any bankruptcysuch default is curable by mezzanine lender as provided in the Ground Lease but remains uncured beyond the applicable cure period), reorganization, or insolvency and no such consent has been granted by Seller since the origination of the landlord under Purchased Asset except as reflected in any Acceptable written instruments which are included in the related Purchased Asset File;
(iii) the Ground Lease has an original term (or of any notice thereofan original term plus one or more optional renewal terms, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either the underlying Mortgagor or the mortgagee) that extends not less than 20 years beyond the stated maturity of the related Purchased Asset, or 10 years past the stated maturity if such Purchased Asset fully amortizes by the stated maturity (or with respect to a Purchased Asset that accrues on an actual 360 basis, substantially amortizes);
(iv) the Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the underlying Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances, or (ii) is subject to a subordination, non-in-fact disturbance and attornment agreement to exercise any such option which the mortgagee on the lessor’s fee interest in the name underlying Mortgaged Property is subject;
(v) the Ground Lease does not place commercially unreasonable restrictions on the identity of the mortgagee and upon behalf the Ground Lease is assignable to the holder of the Purchased Asset and its successors and assigns without the consent of the lessor thereunder, and in the event it is so assigned, it is further assignable by the holder of the Purchased Asset and its successors and assigns without the consent of the lessor;
(vi) Seller has not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease and, to Seller’s Knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease and to Seller’s Knowledge, such Ground Lease is in full force and effect;
(vii) the Ground Lease or ancillary agreement between the lessor and the lessee requires the lessor to give to the lender written notice of any default, and provides that no notice of default or termination is effective against the lender unless such notice is given to the lender;
(viii) a lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings) to cure any default under the Ground Lease which power is curable after the lender’s receipt of attorney shall notice of any default before the lessor may terminate the Ground Lease;
(ix) the Ground Lease does not impose any restrictions on subletting that would be irrevocable viewed as commercially unreasonable by a prudent commercial mortgage lender;
(x) under the terms of the Ground Lease, an estoppel or other agreement received from the ground lessor and shall the related underlying Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in Paragraph (26)(xi) below) will be deemed applied either to the repair or to restoration of all or part of the related underlying Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Purchased Asset Documents) the lender or a trustee appointed by it having the right to hold and disburse such proceeds as repair and restoration progresses, or, to the payment of the outstanding principal balance of the underlying Mortgage Loan, together with any accrued interest, with excess, if any, applied to the Mezzanine Loan;
(xi) in the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related underlying Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related underlying Mortgaged Property to the extent not applied to restoration, will be coupled applied first, pro rata, to the payment of the outstanding principal balance of the underlying Mortgage Loan and the Purchased Asset, together with an any accrued interest; and
(xii) provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the lender upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a bankruptcy proceeding. If applicable, the applicable Subsidiary Guarantor shall ground lessor consented to and acknowledged that (i) the Mezzanine Loan is permitted / approved, (ii) any foreclosure of the Mezzanine Loan and related change in ownership of the ground lessee will not require the consent of the ground lessor or constitute a default under the ground lease, (iii) copies of default notices would be sent to mezzanine lender (or, in the performance or observance of any termalternative, covenant, or condition of any Acceptable Ground Lease on the part of mortgage lender has agreed to send such Subsidiary Guarantor and shall fail notice to cure the same prior mezzanine lender pursuant to the expiration of any applicable related intercreditor agreement) and (iv) it would accept cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed from mezzanine lender on behalf of the ground lessee (or, in the alternative, mortgage lender has agreed to tender such Subsidiary Guarantor, cure on behalf of mezzanine lender pursuant to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonrelated intercreditor agreement).
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (FS Credit Real Estate Income Trust, Inc.)
Ground Leases. Solely with For purposes of this paragraph, a “ground lease” shall mean a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a Mortgage on a ground leasehold estate in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent ground lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of Seller, its successors and shall cause each other Loan Party toassigns, Seller represents and warrants that:
(a) Diligently perform and observe a. The ground lease or a memorandum regarding such ground lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The ground lease or an estoppel or other agreement received from the ground lessor permits the interest of the lessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially and adversely affect the security provided by the related Mortgage. No material change in the terms of the ground lease had occurred since its recordation, except by any written instruments which are included in the related Mortgage Loan File;
b. The lessor under such ground lease has agreed in a writing included in the related Mortgage Loan File (or in such ground lease) that the ground lease may not be amended, modified, canceled or terminated without the prior written consent of the agent or lender (unless in connection with an amendment to correct typographical errors or are otherwise de-minis in nature) and that any such action without such consent is not binding on the agent or lender, its successors or assigns;
c. The ground lease has an original term (or an original term plus one or more optional renewal terms, covenantswhich, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofall circumstances, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either borrower or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
d. The ground lease is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as Permitted Liens;
e. The ground lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and the ground lease is assignable to the holder of the Mortgage Loan and its attorney-in-fact to exercise any successors and assigns without the consent of the lessor thereunder (provided that proper notice is delivered (if required) in accordance with such option ground lease), and in the name of and upon behalf of such Subsidiary Guarantorevent it is so assigned, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If it is further assignable by the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 holder of the terms, covenants, Mortgage Loan and conditions its successors and assigns without the consent of such Acceptable Ground Lease on (but with prior notice to) the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under lessor;
f. The Seller has not received any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any written notice of default under or notice of termination of such Acceptable Ground Leaseground lease. To the Seller’s knowledge, then there is no default under such ground lease and no condition that, but for the passage of time or giving of notice, would result in a default under the terms of such ground lease and to the Seller’s knowledge, such ground lease is in full force and effect;
g. The ground lease or ancillary agreement between the lessor and the lessee requires the lessor to give to the agent or lender written notice of any material default, provides that no notice of default or termination is effective unless such notice shall constitute full protection is given to the Administrative Agent agent or lender;
h. The agent or lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the ground lease through legal proceedings) to cure any default under the ground lease which is curable after the agent’s or lender’s receipt of notice of any default before the lessor may terminate the ground lease;
i. The ground lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by a prudent residential mortgage lender;
j. Under the terms of the ground lease, an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than in respect of a total or substantially total loss or taking as addressed in clause (k) below) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan Documents) the agent, lender or a trustee duly appointed having the right to hold and disburse such proceeds if in excess of 10% of the principal amount of the related Mortgage Loans as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;
k. Under the terms of the ground lease and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of all or substantially all of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and
l. Provided that the agent or lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with agent or lender upon termination of the ground lease for any action taken or omitted to be taken by reason, including rejection of the Administrative Agent, ground lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 1 contract
Ground Leases. Solely with With respect to Unencumbered any Approved Ground Lease related to any Borrowing Base Property, each of the Parent and the Borrower shall, and shall will cause each other Loan Party the Subsidiary Guarantor that is the lessee thereunder to:
(a) Diligently timely perform and observe in all material respects all of the material terms, covenants, covenants and conditions of any Acceptable Ground Lease required to be performed and observed by it as tenant under such Acceptable Ground Lease; andthereunder (subject to applicable cure or grace periods);
(b) Promptly notify do all things necessary to preserve and keep unimpaired such ground lease and its rights thereunder;
(c) not waive, excuse or discharge any of the material obligations of the lessor or other obligor thereunder;
(d) diligently and continuously enforce the material obligations of the lessor or other obligor thereunder;
(e) not cancel, terminate or surrender any such ground lease or agree to any cancellation, termination or surrender of any such ground lease unless simultaneously therewith the Borrowing Base Property subject to such ground lease is removed from the Borrowing Base in accordance with Section 2.05(e);
(f) not modify or amend any of the provisions of any such ground lease or agree to any modification or amendment thereof without the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, conditioned or delayed); provided no consent of (i) the Administrative Agent shall be required if after giving effect to such modification or amendment such ground lease would continue to meet the applicable Subsidiary Guarantor requirements of any notice of any default by such Subsidiary Guarantor under any Acceptable an Approved Ground Lease and as set forth in the definition of Approved Ground Lease;
(g) deliver to the Administrative Agent a true copy all default and other material notices received by it or sent by it under the applicable ground lease;
(h) at Administrative Agent’s reasonable request, provide to Administrative Agent any information or materials relating to such ground lease and evidencing the due observance and performance by the Borrower or its Subsidiaries of each such notice within five their obligations thereunder;
(5i) Business Days not permit or consent to the subordination of such Subsidiary Guarantor’s receipt thereof, and (ii) ground lease to any bankruptcy, reorganization, mortgage or insolvency other leasehold interest of the landlord under any Acceptable Ground Lease or of any notice thereof, premises related thereto;
(j) execute and deliver (to the extent permitted to do so under such ground lease), upon the request of the Administrative Agent, any documents, instruments or agreements as may be reasonably required to permit the Administrative Agent a true copy of to cure any default under such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.ground lease;
(ck) Exercise any individual option provide to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made written notice of its intention to exercise any option or renewal or extension rights with respect to such ground lease at any time within least thirty (30) days prior to the last day upon which expiration of the time to exercise such right or option and;
(l) not treat, in connection with the bankruptcy or other insolvency proceedings of any ground lessor or other obligor, any ground lease as terminated, cancelled or surrendered pursuant to the Bankruptcy Code without the Administrative Agent’s prior written consent;
(m) in connection with the bankruptcy or other insolvency proceedings of any ground lessor or other obligor, ratify the legality, binding effect and enforceability of the applicable ground lease within the applicable time period therefore in such option may be exercisedproceedings, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints notwithstanding any rejection by such ground lessor or obligor or trustee, custodian or receiver related thereto;
(n) provide to the Administrative Agent as its attorney-in-fact to exercise any not less than thirty (30) days prior written notice of the date on which such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default apply to any court or other Governmental Authority for authority or permission to reject the applicable ground lease in the performance event that there shall be filed by or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of against such Subsidiary Guarantor and shall fail to cure any petition, action or proceeding under the same prior Bankruptcy Code or any similar federal or state law; and
(o) to the expiration of any applicable cure period provided thereunder, then extent the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and lessee under such Acceptable Ground Lease shall be kept unimpaired and free ground lease has the right under such ground lease to obtain an estoppel from default. If the landlord lessor under any Acceptable Ground Lease shall such ground lease, deliver to the Administrative Agent a copy (or, subject to the requirements of any notice of default under such Acceptable Ground Leasethe subject ground lease, then such notice shall constitute full protection cause the applicable lessor or other obligor to deliver to the Administrative Agent for any action taken or omitted Agent) an estoppel certificate in relation to be taken by such ground lease in form and substance reasonably acceptable to the Administrative Agent, in good faithits discretion, and, in reliance thereonany case, setting forth (A) the name of lessee and lessor under the ground lease (if applicable); (B) that such ground lease is in full force and effect and has not been modified except to the extent Administrative Agent has received notice of such modification; (C) that no rental and other payments due thereunder are delinquent as of the date of such estoppel; and (D) whether such Person knows of any actual or alleged defaults or events of default under the applicable ground lease.
Appears in 1 contract
Sources: Credit Agreement (American Realty Capital Global Trust, Inc.)
Ground Leases. Solely with respect to Unencumbered Property, each of the Parent and the Borrower shall, and shall cause each other Loan Party to:
(a) Diligently perform and observe Borrower will cause each Individual Property Owner to comply in all material respects with the terms and conditions of the Ground Leases (including, but not limited to, the payment of all rent, additional rent, percentage rent and other charges required to be paid under the Ground Leases). Borrower will not permit or cause any Individual Property Owner to 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 Individual Property leased to such Individual Property Owner under any Ground Lease or will be grounds for declaring a forfeiture of any Ground Lease.
(b) Borrower shall cause each Individual Property Owner to enforce the Ground Leases and will not terminate, modify, cancel, change, supplement, alter or amend any of the Ground Leases (except in connection with a buyout (a “Ground Lease Buyout”) of the fee title held by any Ground Lessor where such fee contemporaneously becomes subject to the Lien of the related Mortgage), or waive, excuse, condone or in any way release or discharge any Ground Lessor of or from any of the material covenants and conditions to be performed or observed by the Ground Lessor under the applicable Ground Lease. Borrower hereby expressly covenants with Lender not to permit or cause any Individual Property Owner to cancel, surrender, amend, modify or alter in any way the terms of any Ground Lease. Borrower hereby agrees to cause each Individual Property Owner to assign to ▇▇▇▇▇ Fargo Mortgage Loan Lender, as further security for the payment of the Debt and for the performance and observance of the terms, covenants, covenants and conditions of any Acceptable Ground Lease the related Mortgages, all of the rights, privileges and prerogatives of such Individual Property Owner, as tenant under such Acceptable the Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) the giving Leases relating to the applicable Subsidiary Guarantor of any notice of any default ▇▇▇▇▇ Fargo Mortgage Loan Property, and not to surrender the leasehold estate created by such Subsidiary Guarantor under Ground Leases or terminate, cancel, modify, change, supplement, alter or amend such Ground Leases, and any Acceptable such surrender of the leasehold estate created by such Ground Leases or termination, cancellation, modification, change, supplement, alteration or amendment of such Ground Leases (except in connection with a Ground Lease Buyout) without the prior consent of Lender shall be void and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, no force and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipteffect.
(c) Exercise Borrower will cause each Individual Property Owner to give Lender prompt (and in all events within two (2) Business Days) notice of (i) any individual option written notice delivered by such Individual Property Owner alleging a default under any Ground Lease, (ii) the receipt by such Individual Property Owner of any written notice of default or alleging a default from any Ground Lessor or (iii) the occurrence of any event known to extend Borrower, Other Senior Mezzanine Borrower, Mortgage Loan Borrower or renew Maryland Owner that, with the term passage of time or service of notice, or both, would constitute a default by the Individual Property Owner or Ground Lessor. Borrower will cause each Individual Property Owner to promptly (and in all events within two (2) Business Days) furnish to Lender copies of all information furnished to any Ground Lessor in accordance with the terms of the Ground Leases or the provisions of this Section 5.26. Borrower will deposit, or will cause each Individual Property Owner to deposit with Lender an Acceptable exact copy of any written notice received or given by such Individual Property Owner in any way relating to or affecting any Ground Lease upon demand by which may concern or affect the Administrative Agent made estate of the related Ground Lessor or such Individual Property Owner thereunder in or under any Ground Lease or in the real estate thereby demised.
(d) Borrower hereby agrees to cause each Individual Property Owner to grant Lender the right, but not the obligation, to perform any obligations of such Individual Property Owner under the terms of any Ground Lease (subject to the prior rights of any CIGNA Mortgage Lender with respect to a CIGNA Mortgage Loan Ground Lease) during the existence of a Default (provided such Default is related to a Ground Lease) or Event of Default or at any time within thirty (30) days prior after Lender receives written notice that such Individual Property Owner has defaulted or is about to default under the last day upon which terms of any such option may be exercised, Ground Lease and each applicable Subsidiary Guarantor Borrower hereby agrees to cause such Individual Property Owner to expressly authorizes authorize and appoints the Administrative Agent as appoint Lender its attorney-in-fact to exercise perform, upon written notice to such Individual Property Owner, any obligations of such Individual Property Owner under the terms of any such option Ground Lease in the name of and upon behalf of such Subsidiary GuarantorIndividual Property Owner, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If All costs and expenses (including reasonable attorneys’ fees and expenses) so incurred by Lender, shall be treated as an advance secured by the applicable Subsidiary Guarantor Pledge Agreement, shall default bear interest thereon at the Default Rate from the date of payment by Lender until paid in the full and shall be paid by Borrower to Lender within five (5) days after demand. No performance or observance by Lender of any term, covenant, or condition obligations of Borrower shall constitute a waiver of any Acceptable Ground Lease on Event of Default arising by reason of Borrower’s failure to perform the part of such Subsidiary Guarantor and same. If Lender shall fail to cure the same prior to the expiration of make any applicable cure period provided thereunder, then the Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to payment or perform any act or take any action as may be appropriate to cause all in accordance with this Section 5.26, Lender will notify Borrower of the termsmaking of any such payment, covenantsthe performance of any such act, or the taking of any such action promptly after taking such action. In any such event, subject to the rights of Ground Lessors specifically reserved under the Ground Leases and the rights of lessees, sublessees and other occupants under any Leases, Lender and any person designated by Lender shall have, and conditions are hereby granted, the right to enter upon any Individual Property at any time and from time to time for the purpose of taking any such Acceptable action.
(e) To the extent permitted by law, Borrower agrees that the price payable by Borrower or any other person or entity in the exercise of any right of redemption following foreclosure of an Individual Property subject to a Ground Lease on shall include all rents paid and other sums advanced by Lender (together with interest thereon at the part of such Subsidiary Guarantor to be performed or observed Default Rate) as ground lessee under the Ground Leases, on behalf of such Subsidiary GuarantorBorrower on account of each applicable Individual Property.
(f) Unless Lender shall otherwise consent, Borrower shall cause each Individual Property Owner to exercise its rights under the end Ground Lease and applicable law to ensure that the rights of such Subsidiary Guarantor in, to, fee title and under such Acceptable the leasehold estate in each Individual Property subject to a Ground Lease shall not merge but shall always be kept unimpaired separate and free from default. If distinct, notwithstanding the landlord under any Acceptable union of said estates either in Ground Lessor or in a Borrower, or in a third party, by purchase or otherwise except in a Ground Lease shall deliver Buyout in connection with which ▇▇▇▇▇ Fargo Individual Property Owner has delivered to ▇▇▇▇▇ Fargo Mortgage Loan Lender an amendment to the Administrative Agent a copy related Mortgage spreading the lien of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection the Mortgage over the fee interests and providing title insurance coverage related to the Administrative Agent for any action taken or omitted to be taken by priority of the Administrative Agent, in good faith, in reliance thereonlien of the Mortgage over such interest.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Ground Leases. Solely with For purposes of this Agreement, a “Ground Lease” shall mean a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a ground leasehold estate in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent ground lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of the Mortgage Loan Seller, its successors and shall cause each other Loan Party toassigns:
(a) Diligently perform and observe The ground lease or a memorandum regarding such ground lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The ground lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenantsits successors or assigns in a manner that would adversely affect the security provided by the related Mortgage. To the Mortgage Loan Seller’s knowledge, and conditions no material change in the terms of the ground lease had occurred since its recordation, except by any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; andwritten instruments which are included in the related Mortgage File;
(b) Promptly notify The lessor under such ground lease has agreed in a writing included in the Administrative Agent of related Mortgage File (ior in such ground lease) that the giving to ground lease may not be amended, modified, canceled or terminated without the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency prior written consent of the landlord under lender and that any Acceptable Ground Lease such action without such consent is not binding on the lender, its successors or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.assigns;
(c) Exercise any individual option to extend The ground lease has an original term (or renew the an original term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either borrower or the mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
(d) The ground lease is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as Permitted Encumbrances;
(e) The ground lease does not place commercially unreasonable restrictions on the identity of the mortgagee and the ground lease is assignable to the holder of the Mortgage Loan and its attorney-in-fact to exercise any such option successors and assigns without the consent of the lessor thereunder, and in the name of and upon behalf of such Subsidiary Guarantorevent it is so assigned, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If it is further assignable by the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 holder of the terms, covenants, Mortgage Loan and conditions its successors and assigns without the consent of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under lessor;
(f) The Mortgage Loan Seller has not received any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any written notice of default under or notice of termination of such Acceptable Ground Leaseground lease. To the Mortgage Loan Seller’s knowledge, then there is no default under such ground lease and no condition that, but for the passage of time or giving of notice, would result in a default under the terms of such ground lease. Such ground lease is in full force and effect as of the Closing Date;
(g) The ground lease or ancillary agreement between the lessor and the lessee requires the lessor to give to the lender written notice of any default, provides that no notice of default or termination is effective unless such notice shall constitute full protection is given to the Administrative Agent lender, and requires that the ground lessor will supply an estoppel;
(h) A lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the ground lease through legal proceedings) to cure any default under the ground lease which is curable after the lender’s receipt of notice of any default before the lessor may terminate the ground lease;
(i) The ground lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by the Mortgage Loan Seller in connection with loans originated for securitization;
(j) Under the terms of the ground lease, an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than in respect of a total or substantially total loss or taking as addressed in subpart (K)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan documents) the lender or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;
(k) In the case of a total or substantial taking or loss, under the terms of the ground lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and
(l) Provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with lender upon termination of the ground lease for any action taken or omitted to be taken by reason, including rejection of the Administrative Agent, ground lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 1 contract
Sources: Mortgage Loan Purchase Agreement
Ground Leases. Solely with With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a ground leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of the originator, its successors and shall cause each other Loan Party toassigns, Seller represents and warrants that:
(a) Diligently perform The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording in the applicable jurisdiction and observe in all material respects all will be recorded. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; andits successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage;
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by The lessor under such Subsidiary Guarantor under any Acceptable Ground Lease has agreed in a writing included in the related Purchased Asset File (or in such Ground Lease) that the Ground Lease may not be amended, modified, or canceled or terminated by agreement of lessor and deliver to lessee without the Administrative Agent a true copy prior written consent of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofthe lender, and (ii) any bankruptcy, reorganization, or insolvency no such consent has been granted since the origination of the landlord under Mortgage Loan except as reflected in any Acceptable Ground Lease or of any notice thereof, and deliver to written instruments included in the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.related Purchased Asset File;
(c) Exercise any individual option to extend or renew the term of an Acceptable The Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either the Borrower or the mortgagee) that extends not less than twenty (20) years beyond the stated maturity of the related Mortgage Loan, or ten (10) years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
(d) The Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorney-in-fact Permitted Encumbrances, or (ii) is subject to exercise any such option a subordination, non disturbance and attornment agreement to which the mortgagee on the lessor’s fee interest in the name Mortgaged Property is subject;
(e) The Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and upon behalf the Ground Lease is assignable to the holder of the Mortgage Loan and its assigns without the consent of the lessor thereunder (or if such Subsidiary Guarantorconsent is necessary it has been obtained), which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any termevent it is so assigned, covenant, or condition of any Acceptable Ground Lease on it is further assignable by the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 holder of the terms, covenants, Mortgage Loan and conditions its successors and assigns without the consent of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under lessor; BUSINESS.31481140.2
(f) Seller has not received any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any written notice of default under or notice of termination of such Acceptable Ground Lease as of the Purchase Date. To Seller’s Knowledge, as of the Purchase Date, there is no default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a default under the terms of such Ground Lease and to Seller’s Knowledge, such Ground Lease is in full force and effect as of the Purchase Date. To Seller’s Knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease;
(g) The Ground Lease or ancillary agreement between the lessor and the lessee requires the lessor to give to the lender written notice of any default, and provides that no notice of default or termination is effective against lender unless such notice is given to the lender in the manner described in the Ground Lease or such ancillary agreement;
(h) A lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the lender’s receipt of notice of any default before the lessor may terminate the Ground Lease;
(i) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by a prudent institutional commercial and multifamily mortgage lender in connection with loans similar to the Mortgage Loan intended for securitizations;
(j) Under the terms of the Ground Lease, then such notice shall constitute full protection an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the Administrative Agent ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in subpart (k)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Purchased Asset Documents) the lender or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;
(k) In the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and BUSINESS.31481140.2 BUSINESS.31481140.2
(l) Provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with lender upon termination of the Ground Lease for any action taken or omitted to be taken by reason, including rejection of the Administrative Agent, Ground Lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 1 contract
Sources: Master Repurchase Agreement (Franklin BSP Real Estate Debt BDC)
Ground Leases. Solely with For purposes of this paragraph, a “ground lease” shall mean a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a Mortgage on a ground leasehold estate in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent ground lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of Seller, its successors and shall cause each other Loan Party toassigns, Seller represents and warrants that:
(a) Diligently perform and observe 1. The ground lease or a memorandum regarding such ground lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The ground lease or an estoppel or other agreement received from the ground lessor permits the interest of the lessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially and adversely affect the security provided by the related Mortgage. No material change in the terms of the ground lease had occurred since its recordation, except by any written instruments which are included in the related Mortgage Loan File;
2. The lessor under such ground lease has agreed in a writing included in the related Mortgage Loan File (or in such ground lease) that the ground lease may not be amended, modified, canceled or terminated without the prior written consent of the agent or lender (unless in connection with an amendment to correct typographical errors or are otherwise de-minis in nature) and that any such action without such consent is not binding on the agent or lender, its successors or assigns;
3. The ground lease has an original term (or an original term plus one or more optional renewal terms, covenantswhich, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofall circumstances, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either borrower or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
4. The ground lease is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as Permitted Liens;
5. The ground lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and the ground lease is assignable to the holder of the Mortgage Loan and its attorney-in-fact to exercise any successors and assigns without the consent of the lessor thereunder (provided that proper notice is delivered (if required) in accordance with such option ground lease), and in the name of and upon behalf of such Subsidiary Guarantorevent it is so assigned, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If it is further assignable by the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 holder of the terms, covenants, Mortgage Loan and conditions its successors and assigns without the consent of such Acceptable Ground Lease on (but with prior notice to) the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from defaultlessor;
6. If the landlord under The Seller has not received any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any written notice of default under or notice of termination of such Acceptable Ground Leaseground lease. To the Seller’s knowledge, then there is no default under such ground lease and no condition that, but for the passage of time or giving of notice, would result in a LEGAL02/42117271v5 default under the terms of such ground lease and to the Seller’s knowledge, such ground lease is in full force and effect;
7. The ground lease or ancillary agreement between the lessor and the lessee requires the lessor to give to the agent or lender written notice of any material default, provides that no notice of default or termination is effective unless such notice shall constitute full protection is given to the Administrative Agent for agent or lender;
8. The agent or lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the ground lease through legal proceedings) to cure any action default under the ground lease which is curable after the agent’s or lender’s receipt of notice of any default before the lessor may terminate the ground lease;
9. The ground lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by a prudent residential mortgage lender;
10. Under the terms of the ground lease, an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or omitted the portion of the condemnation award allocable to the ground lessee’s interest (other than in respect of a total or substantially total loss or taking as addressed in clause (k) below) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan Documents) the agent, lender or a trustee duly appointed having the right to hold and disburse such proceeds if in excess of 10% of the principal amount of the related Mortgage Loans as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;
11. Under the terms of the ground lease and the related Mortgage (taken by together), any related insurance proceeds, or portion of the Administrative Agentcondemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of all or substantially all of the related Mortgaged Property to the extent not applied to restoration, in good faithwill be applied first to the payment of the outstanding principal balance of the Mortgage Loan, in reliance thereon.together with any accrued interest; and
Appears in 1 contract
Ground Leases. Solely with respect to Unencumbered Property, each of the Parent and the (a) Ground Lease Borrower shall, at its sole cost and shall cause each other Loan Party to:
(a) Diligently expense, promptly and timely perform and observe in all the material respects all of the terms, covenants, covenants and conditions of any Acceptable required to be performed and observed by Ground Lease Borrower as tenant lessee under such Acceptable the Ground Lease (including, but not limited to, the payment of all rent, additional rent, percentage rent and other charges required to be paid under the Ground Lease; and).
(b) Promptly notify If Ground Lease Borrower shall be in default under the Administrative Agent of (i) the giving Ground Lease, then, subject to the applicable Subsidiary Guarantor terms of any notice of any default by such Subsidiary Guarantor under any Acceptable the Ground Lease (taken together with the estoppel delivered by the Ground Lessor in connection with the Loan), Ground Lease Borrower shall grant Lender the right (but not the obligation), to cause the default or defaults under such Ground Lease to be remedied and deliver otherwise exercise any and all rights of Ground Lease Borrower under the Ground Lease, as may be necessary to prevent or cure any default, and, subject to the Administrative Agent a true copy rights of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofTenants under Leases, and (ii) Lender shall have the right to enter all or any bankruptcy, reorganization, or insolvency portion of the landlord under Ground Leased Property at such times and in such manner as Lender deems necessary, to prevent or to cure any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receiptdefault.
(c) Exercise The actions or payments of Lender to cure any individual option to extend or renew default by the term of an Acceptable Ground Lease upon Borrower under the Ground Lease shall not remove or waive, as between Borrower and Lender, the default that occurred under this Agreement by virtue of the default by Ground Lease Borrower under the Ground Lease. All sums expended by Lender to cure any such default shall be paid by Borrower to Lender, within ten (10) Business Days following written demand, with interest on such sum at the rate set forth in this Agreement from the date expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the related Mortgage.
(d) Borrower shall notify Lender promptly in writing of the occurrence of any default by Ground Lessor under the Ground Lease of which it has knowledge or following the receipt by Borrower of any written notice from Ground Lessor under any Ground Lease noting or claiming the occurrence of any default by Ground Lease Borrower under the Ground Lease or the occurrence of any event that, with the passage of time or service of notice, or both, would constitute a default by Ground Lease Borrower under the Ground Lease. Borrower shall promptly deliver to Lender a copy of any such written notice of default.
(e) Within ten (10) Business Days after receipt of written demand by L▇▇▇▇▇ (but no more often than once in any calendar year so long as no Event of Default is then continuing), Ground Lease Borrower shall use commercially reasonable efforts to obtain from Ground Lessor under the Administrative Agent made at Ground Lease and furnish to Lender the estoppel certificate of Ground Lessor stating the date through which rent has been paid and whether or not there are any time within thirty defaults thereunder and specifying the nature of such claimed defaults, if any.
(30f) days prior Ground Lease Borrower shall promptly execute, acknowledge and deliver to Lender such instruments as may be required to permit Lender to cure any default under any Ground Lease or permit Lender to take such other action required to enable Lender to cure or remedy the matter in default and preserve the security interest of Lender under the Loan Documents with respect to the last day upon which any such option may be exercisedGround Leased Property, and in each applicable Subsidiary Guarantor hereby expressly authorizes and case, so long as the same does not increase Borrower’s obligations or decrease Borrower’s rights under the Loan Documents to more than a de minimis extent. Borrower irrevocably appoints the Administrative Agent Lender as its true and lawful attorney-in-fact to exercise do, in its name or otherwise, during the continuance of an Event of Default, any and all acts and to execute any and all documents that are necessary to preserve any rights of Ground Lease Borrower under or with respect to the Ground Lease, including, without limitation, the right to effectuate any extension or renewal of the Ground Lease, or to preserve any rights of Borrower whatsoever in respect of any part of the Ground Lease (and the above powers granted to Lender are coupled with an interest and shall be irrevocable).
(g) Notwithstanding anything to the contrary contained in this Agreement with respect to the Ground Lease, to the extent permitted by Legal Requirements:
(i) The lien of the related Mortgage attaches to all of B▇▇▇▇▇▇▇’s rights and remedies at any time arising under or pursuant to Section 365(h) of the Bankruptcy Code or the comparable provisions of any other appliable Insolvency Law, including, without limitation, all of Borrower’s rights, as debtor, to remain in possession of the related Ground Leased Property.
(ii) Borrower shall not, without L▇▇▇▇▇’s written consent, elect to treat the Ground Lease as terminated under Section 365(h)(l) of the Bankruptcy Code or the comparable provisions of any other appliable Insolvency Law. Any such option election made without L▇▇▇▇▇’s prior written consent shall be void.
(iii) As security for the Debt, Borrower unconditionally assigns, transfers and sets over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by the lessor under the Ground Lease under the Bankruptcy Code or other applicable Insolvency Law. Lender and B▇▇▇▇▇▇▇ shall proceed jointly or in the name of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of the Ground Lease, including, without limitation, the right to file and upon behalf prosecute any proofs of such Subsidiary Guarantorclaim, which power complaints, motions, applications, notices and other documents in any case in respect of attorney shall be lessor under the Bankruptcy Code or other applicable Insolvency Law. This assignment constitutes a present, irrevocable and shall be deemed to be coupled with an interest. If unconditional assignment of the applicable Subsidiary Guarantor shall default in the performance or observance of any termforegoing claims, covenantrights and remedies, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 continue in effect until all of the termsDebt shall have been satisfied and discharged in full. Any amounts received by Lender or Borrower as damages arising out of the rejection of the Ground Lease as aforesaid shall be applied to all reasonably out-of-pocket costs and expenses of Lender (including, covenantswithout limitation, attorney’s fees and costs) incurred in connection with the exercise of any of its rights or remedies in accordance with the applicable provisions of this Agreement.
(iv) If, pursuant to Section 365(h) of the Bankruptcy Code or the comparable provisions of any other Insolvency Law, Borrower seeks to offset, against the rent reserved in the Ground Lease, the amount of any damages caused by the nonperformance by the lessor of any of its obligations thereunder after the rejection by lessor of the Ground Lease under the Bankruptcy Code or other applicable Insolvency Law, then Borrower shall not effect any offset of the amounts so objected to by Lender. If L▇▇▇▇▇ has failed to object as aforesaid within ten (10) days after notice from Borrower in accordance with the first sentence of this Subsection, Borrower may proceed to offset the amounts set forth in Borrower’s notice.
(v) If any action, proceeding, motion or notice shall be commenced or filed in respect of any lessor of all or any part of the Ground Leased Property in connection with any case under the Bankruptcy Code or any other applicable Insolvency Law, Lender and Borrower shall cooperatively conduct and control any such litigation with counsel agreed upon between Borrower and Lender in connection with such litigation. Borrower shall, within ten (10) Business Days following written demand, pay to Lender all reasonable out-of-pocket costs and expenses (including reasonable out-of-pocket attorneys’ fees and costs) incurred in connection with the cooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be secured by the lien of the related Mortgage.
(vi) Borrower shall notify Lender of any filing by or against the lessor under the Ground Lease of a petition under the Bankruptcy Code or any other Insolvency Law, setting forth any information available to Borrower as to the date of such filing, the court in which such petition was filed, and conditions the relief sought in such filing. Borrower shall deliver to Lender any and all material notices, summonses, pleadings, applications and other documents received by Borrower in connection with any such petition and any proceedings relating to such petition.
(h) Subject to the terms of such Acceptable the Ground Lease on (taken together with the part estoppel delivered by the Ground Lessor in connection with the Loan), if Lender, its nominee, designee, successor, or assignee acquires title and/or rights of Borrower under the Ground Lease by reason of foreclosure of the Pledge Agreement, the applicable Mortgage, deed-in-lieu or assignment-in-lieu of foreclosure or otherwise, such Subsidiary Guarantor party shall (x) succeed to be performed or observed on behalf all of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and benefits accruing to Borrower under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then and (y) be entitled to exercise all of the rights and benefits accruing to Borrower under the Ground Lease. At such notice time as Lender shall constitute full protection request, B▇▇▇▇▇▇▇ agrees to execute and deliver and use commercially reasonable efforts to cause any third party to execute and deliver to Lender such documents as Lender and its counsel may require in order to ensure that the provisions of this section will be validly and legally enforceable and effective against Borrower and all parties claiming by, through, under or against Borrower, so long as the same does not increase Borrower’s obligations or decrease Borrower’s rights under the Loan Documents to more than a de minimis extent.
(i) Notwithstanding anything to the Administrative Agent for any action taken contrary set forth herein, it shall not be a Default or omitted Event of Default under the Loan Documents to be taken the extent there is a breach or other default under the Ground Lease if such breach or default is caused by the Administrative Agentacts or omissions of Tenant, so long as Borrower is complying with its obligations to enforce such Tenant’s Lease pursuant to Section 5.1.20 of this Agreement and such breach or default by Tenant (i) would not be reasonably likely to result in an Individual Material Adverse Effect and (ii) does not give rise to a right of the Ground Lessor to terminate the Ground Lease.
(j) Any transfer of fee title in the Ground Lease Property to the Ground Lease Borrower shall be subject to the following conditions: (i) Borrower gives Lender not less than thirty (30) days’ prior written notice, (ii) Ground Lease Borrower delivers a first-priority Mortgage to Lender covering such Individual Property, in good faithsubstantially the same form as the Mortgages delivered at Closing or otherwise in form and substance acceptable to Lender, (iii) Borrower shall cause the Title Company to issue a Title Insurance Policy for such Individual Property substantially in reliance thereonthe form of a pro forma title policy approved by L▇▇▇▇▇ in writing, subject only to Permitted Encumbrances, (iv) Borrower shall provide the following opinions of counsel: (A) an opinion of counsel admitted to practice under New York law and the laws of Texas in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Mortgage and (B) an opinion stating that the Mortgage was duly authorized, executed and delivered by B▇▇▇▇▇▇▇ and otherwise in form and substance reasonably satisfactory to Lender and (v) Borrower shall pay all Mortgage Costs.
Appears in 1 contract
Sources: Loan Agreement (W. P. Carey Inc.)
Ground Leases. Solely (a) Each of the following is true with respect to Unencumbered Property, each of the Parent and the Borrower shall, and shall cause each other Loan Party toGround Lease:
(ai) Diligently perform and observe Except with respect to Ground Leases relating to Towers generating in all material respects all the aggregate Tower Cash Flow of an amount less than the Basket Amount for Non-Conforming Towers, (A) each Ground Lease contains the entire agreement of the termsGround Lessor and the Ground Lessee pertaining to the Ground Leased Property covered thereby, covenants(B) the Borrower does not have any estate, right, title or interest in or to the Ground Leased Property (other than access and utilities easements) except under and pursuant to the Ground Lease, and conditions of any Acceptable (C) each Ground Lease as tenant under such Acceptable Ground Lease; and
Lessee (bor the Borrower) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and has delivered or will deliver to the Administrative Agent a true and correct copy of each of its respective Ground Leases to the Collateral Agent and such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofGround Leases have not been modified, and amended or assigned except as set forth therein.
(ii) any bankruptcyExcept with respect to Ground Leases relating to Towers generating in the aggregate Tower Cash Flow of an amount less than the Basket Amount for Non-Conforming Towers, reorganization, or insolvency of the landlord under any Acceptable (A) each Ground Lease or of any notice thereofis in full force and effect, and deliver to no breach or default or event that with the Administrative Agent giving of notice or passage of time would constitute a true copy of breach or default under such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable a “Ground Lease Default”) exists on the part of the Ground Lessee or, to the Borrower’s knowledge, on the part of the Ground Lessor under such Subsidiary Guarantor and shall fail Ground Lease, (B) the Borrower has not received any written notice that any Ground Lease Default exists, except to cure the extent the Borrower has cured the same prior to the expiration of date hereof, or that any applicable cure period provided thereunder, then Ground Lessor or any third party alleges the Administrative Agent shall have same to exist.
(iii) The Ground Lessee under such Ground Lease is 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 exclusive owner of the terms, covenants, lessee’s interest under and conditions of such Acceptable pursuant to the applicable Ground Lease on the part of such Subsidiary Guarantor to be performed and has not assigned, transferred, or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor encumbered its interest in, to, and or under such Acceptable the Ground Lease shall be kept unimpaired and free from default. If (other than Tenant Leases or assignments that will terminate on or prior to the landlord under any Acceptable Closing Date or, with respect to a Ground Lease shall deliver acquired after the Closing Date, the date of Acquisition), except in favor of Collateral Agent pursuant to the Administrative Agent Loan Documents.
(iv) Except with respect to Ground Leases generating up to 2.5% of Aggregate Tower Cash Flow, each Ground Lease has a copy term that extends not less than 10 years beyond the Closing Date, after giving effect to any options to renew the Ground Lease which may be exercised at the sole discretion of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonBorrower.
Appears in 1 contract
Ground Leases. Solely with respect The Mortgage Loan is not secured by the Mortgagor’s interest in a Ground Lease except to Unencumbered Property, each of the Parent and the Borrower shallextent permitted pursuant to representation (9) above, and shall cause each other if such Mortgage Loan Party tois secured by the Mortgagor’s interest in a Ground Lease:
(aA) Diligently perform and observe in all material respects all The Ground Lease or a memorandum thereof has been duly recorded, the Ground Lease permits the interest of the termslessee thereunder to be encumbered by the related Mortgage, covenantsdoes not restrict the use of the Mortgaged Property by the lessee or its successors and assigns in a manner that would adversely affect the security provided by the related Mortgage, and conditions there has not been a material change in the terms of the Ground Lease since its recordation, with the exception of written instruments which are part of the related mortgage file;
(B) The Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related ground lessor’s related fee interest;
(C) The Ground Lease either (i) has a term which extends not less than five years beyond the maturity date of the related Mortgage Loan or (ii) grants the lessee the option to extend the term of the lease for a period (in the aggregate) which exceeds five years beyond the maturity date of the related Mortgage Loan;
(D) The Ground Lease is valid, in good standing, and in full force and effect;
(E) The lessee is not in default under any provision of the lease;
(F) The mortgagee under the Mortgage Loan is given at least 30 days’ notice of any Acceptable default and an opportunity to cure any defaults under the Ground Lease as tenant or to take over the Mortgagor’s rights under such Acceptable the Ground Lease;
(G) The Ground Lease does not contain any default provisions that could give rise to forfeiture or termination of the Ground Lease except for the nonpayment of the Ground lease rents; and
(bH) Promptly notify The Ground Lease provides that the Administrative Agent leasehold can be transferred, mortgaged and sublet an unlimited number of (i) the giving times either without restriction or on payment of a reasonable fee and delivery of reasonable documentation to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereon.lessor;
Appears in 1 contract
Sources: Master Repurchase Agreement (Impac Mortgage Holdings Inc)
Ground Leases. Solely with For purposes of this Exhibit B, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency (IDA) or similar leases for purposes of conferring a tax abatement or other benefit. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of the Seller, its successors and shall cause each other Loan Party toassigns, the Seller represents and warrants that:
(a) Diligently perform and observe The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of any Acceptable the Ground Lease had occurred since the origination of the Mortgage Loan, except as tenant under such Acceptable Ground Lease; andreflected in any written instruments which are included in the related Mortgage File;
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by The lessor under such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to has agreed in a writing included in the Administrative Agent a true copy of each related Mortgage File (or in such notice within five (5Ground Lease) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganizationthat the Ground Lease may not be amended or modified, or insolvency canceled or terminated by agreement of lessor and lessee, without the prior written consent of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.Mortgagee;
(c) Exercise any individual option to extend or renew the term of an Acceptable The Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
(d) The Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances or (ii) is subject to a subordination, non-in-fact disturbance and attornment agreement to exercise any such option which the Mortgagee on the lessor’s fee interest in the name Mortgaged Property is subject;
(e) The Ground Lease does not place commercially unreasonably restrictions on the identity of the Mortgagee and upon behalf the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (provided that proper notice is delivered to the extent required in accordance with the Ground Lease), and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of (but with prior notice to) the lessor;
(f) The Seller has not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease. To the Seller’s knowledge, which power there is no material default under such Ground Lease and no condition that, but for the passage of attorney shall be irrevocable time or giving of notice, would result in a material default under the terms of such Ground Lease and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default Seller’s knowledge, such Ground Lease is in full force and effect as of the performance Closing Date;
(g) The Ground Lease or observance ancillary agreement between the lessor and the lessee requires the lessor to give to the Mortgagee written notice of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenantsdefault, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end provides that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any no notice of default or termination is effective against the Mortgagee unless such notice is given to the Mortgagee;
(h) The Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Acceptable the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the Mortgagee’s receipt of notice of any default before the lessor may terminate the Ground Lease;
(i) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender;
(j) Under the terms of the Ground Lease, then such notice shall constitute full protection an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the Administrative Agent ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in subpart (k)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Loan Documents) the Mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;
(k) In the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to the ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and
(l) Provided that the Mortgagee cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the Mortgagee upon termination of the Ground Lease for any action taken or omitted to be taken by reason, including rejection of the Administrative Agent, Ground Lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 1 contract
Sources: Mortgage Loan Purchase Agreement (GS Mortgage Securities Trust 2018-Gs9)
Ground Leases. Solely with respect (i) Borrower is not prohibited under the Ground Lease from assigning its interest in any condemnation award which Borrower is entitled to Unencumbered Property, each of receive pursuant to the Parent and the Borrower shall, and shall cause each other Loan Party to:Ground Lease.
(aii) Diligently perform and observe in all material respects Borrower has the right, without approval or consent of Ground Lessor but with fifteen (15) days prior notice to Ground Lessor, to assign the Ground Lease or any interest therein or sublease part or all of the Premises to one or more Affiliate(s) (as defined in the Ground Lease) to the extent not prohibited by the Anti-Assignment Acts (as defined in the Ground Lease) and provided that the transferee is not an Excluded Contractor (as defined in the Ground Lease). Borrower has the right to sublease or otherwise encumber, all or any part of the Premises and encumber the Ground Lease and the leasehold estate created thereby with the consent of Ground Lessor, which consent is not permitted to be unreasonably withheld, conditioned or delayed.
(iii) If any default by Borrower shall occur under the Ground Lease, Lender is entitled under the Ground Lease to receive notice of such default from Ground Lessor and an additional opportunity to cure any such default which is susceptible of cure by Lender, which in the case of any non-monetary default susceptible of cure by Lender, includes the right of Lender or its designee to acquire possession of the Premises by means of foreclosure of this Security Instrument or by other means and to become the lessee under the Ground Lease. Subject to the limitations set forth in Section 18.5.2 of the Ground Lease, so long as Lender has agreed to effectuate a cure and is proceeding to cure any such non-monetary default within applicable notice and grace periods and no monetary default remains uncured beyond any applicable notice and grace periods to which Borrower and Lender are entitled, Ground Lessor may not terminate the Ground Lease.
(iv) The Ground Lease is in full force and effect and has not been modified or supplemented. The Ground Lease cannot be cancelled solely by Ground Lessor and requires Borrower’s consent for all modifications.
(v) All rents (including additional rents and other charges) reserved for in the Ground Lease and payable prior to the date hereof have been paid.
(vi) 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.
(vii) No notice or other written or oral communication has been provided to any party under the Ground Lease which alleges that, as of the date hereof, either a default exists or with the passage of time will exist under the provisions of such Ground Lease.
(viii) If there shall be a Taking of the fee title to the Premises, subject to amounts which are applied to restoration, Borrower is entitled under the Ground Lease to receive such portion of the award for such Taking as equals the value of Borrower’s estate under the Ground Lease and improvements made by Borrower, provided, that, in the event of a Taking for a temporary period, Borrower is entitled to receive the entire amount of any award made (whether paid by way of damages, rent or otherwise), unless the period of governmental occupancy extends beyond the then remaining term of the Ground Lease, in which caase the award for the Premises shall be apportioned between Ground Lessor and Borrower as of the date of termination of the term and, in such apportionment, Ground Lessor is entitled to receive the full amount, if any, of any portion of such award, which represents compensation specifically awarded for the cost of restoration of the Premises at the termination of any such temporary taking. If there shall be a casualty under a Ground Lease, either there is an obligation to use insurance proceeds for a full restoration or Borrower is entitled to receive such portion of such proceeds as equals the value of the Improvements.
(ix) Subject to Sections 15.5, 18.1 and 18.2 of the Ground Lease, the Ground Lease may be assigned from time to time with the consent of Ground Lessor, which consent is not permitted to be unreasonably withheld, conditioned or delayed.
(x) Ground Lessor does not have the right to terminate the Ground Lease following a default by the Borrower thereunder unless Lender, after receipt of notice from Ground Lessor, fails to cure such default within the time periods provided in the Ground Lease. Provided that no monetary default under the Ground Lease remains uncured beyond any applicable notice and grace periods to which Borrower and Lender are entitled, the Ground Lease may not be terminated by Ground Lessor by reason of any default by Borrower which is not susceptible of cure by Lender and that solely arises from the status of Tenant and therefore cannot be cured by a leasehold mortgagee (as opposed to breaches relating to the condition or operation of the Premises).
(xi) 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 conditions of any Acceptable Ground Lease agreements as tenant under such Acceptable Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option are contained in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then provided, that in partial consideration for the new lease, the Lender or its designee is obligated under the Ground Lease to pay to Ground Lessor all amounts necessary to cure any breach that can be cured by the payment of money, and all monetary amounts due under the terms of the Ground Lease from the date of such notice shall constitute full protection termination through the date the New Lease commences, and to commence and diligently pursue the cure of any other breach as provided in Section 18.5 of the Ground Lease, and provided, further, that, Lender’s right to enter into such New Lease is subject to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonAnti-Assignment Acts.
Appears in 1 contract
Sources: Deed of Trust, Security Agreement, Assignment of Rents and Fixture Filing (Pebblebrook Hotel Trust)
Ground Leases. Solely with respect to Unencumbered Property, each of the Parent and the (a) Borrower shall, at its sole cost and shall cause each other Loan Party to:
(a) Diligently expense, promptly and timely perform and observe in all material respects all of the terms, covenants, covenants and conditions of any Acceptable required to be performed and observed by Borrower as lessee under each Ground Lease as tenant (including, but not limited to, the payment of all rent, additional rent, percentage rent and other charges required to be paid under such Acceptable each Ground Lease; and).
(b) Promptly notify the Administrative Agent of (i) the giving If Borrower shall be in default under any Ground Lease, then, subject to the applicable Subsidiary Guarantor terms of such Ground Lease, Borrower shall grant Lender the right (but not the obligation) to, upon written notice to Borrower (unless an Event of Default then exists), cause the default or defaults under each such Ground Lease to be remedied and otherwise exercise any and all rights of Borrower under each such Ground Lease, as may be necessary to prevent or cure any default provided such actions are necessary to protect Lender’s interest under the Loan Documents, and Lender shall have the right, subject to the rights of Tenants under their Leases, to enter all or any portion of any notice of any default by such Subsidiary Guarantor under any Acceptable Individual Property subject to a Ground Lease and deliver to the Administrative Agent (each, a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable “Ground Lease Property”) at such times and in such manner as Lender deems necessary, to prevent or of to cure any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receiptdefault.
(c) Exercise The actions or payments of Lender to cure any individual option to extend or renew the term of an Acceptable default by Borrower under any Ground Lease upon demand shall not remove or waive, as between Borrower and Lender, the default that occurred under this Agreement by virtue of the Administrative Agent made at any time within thirty (30) days prior default by Borrower under a Ground Lease. All sums expended by Lender to the last day upon which cure any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney default shall be irrevocable paid by Borrower to Lender, upon demand, with interest on such sum at the rate set forth in this Agreement from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken secured by the Administrative Agent, in good faith, in reliance thereonMortgage.
Appears in 1 contract
Ground Leases. Solely with With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a ground leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of the originator, its successors and shall cause each other Loan Party toassigns, Seller represents and warrants that:
(a) Diligently perform and observe The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recording in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of any Acceptable the Ground Lease as tenant under such Acceptable Ground Lease; andhas occurred since the origination of the applicable Mortgage Loan.
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by The lessor under such Subsidiary Guarantor under any Acceptable Ground Lease has agreed in a writing included in the related Purchased Asset File (or in such Ground Lease) that the Ground Lease may not be amended, modified, or cancelled or terminated by agreement of lessor and deliver to lessee without the Administrative Agent a true copy prior written consent of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofthe lender, and (ii) any bankruptcy, reorganization, or insolvency no such consent has been granted since the origination of the landlord under Mortgage Loan, except as reflected in any Acceptable Ground Lease or of any notice thereof, and deliver to written instruments included in the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receiptrelated Purchased Asset File.
(c) Exercise any individual option to extend or renew the term of an Acceptable The Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either the Mortgagor or the mortgagee) that extends not less than twenty (20) years beyond the stated maturity of the related Mortgage Loan, or ten (10) years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes).
(d) The Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances, or (ii) is subject to a subordination, non-in-fact disturbance and attornment agreement to exercise any such option which the mortgagee on the lessor’s fee interest in the name Mortgaged Property is subject.
(e) The Ground Lease does not place commercially unreasonable restrictions on the identity of the mortgagee and upon behalf the Ground Lease is assignable to the holder of the Mortgage Loan and its assigns without the consent of the lessor thereunder (or if such consent is necessary it has been obtained), and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor.
(f) The Seller has not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease. To the Seller’s knowledge, which power there is no material default under such Ground Lease and no condition that, but for the passage of attorney shall be irrevocable time or giving of notice, would result in a material default under the terms of such Ground Lease and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default Seller’s knowledge, such Ground Lease is in full force and effect as of the performance Purchase Date.
(g) The Ground Lease or observance ancillary agreement between the lessor and the lessee requires the lessor to give to the lender written notice of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenantsdefault, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end provides that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any no notice of default or termination is effective against lender unless such notice is given to the lender.
(h) A lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Acceptable the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the lender’s receipt of notice of any default before the lessor may terminate the Ground Lease.
(i) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender.
(j) Under the terms of the Ground Lease, then such notice shall constitute full protection an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the Administrative Agent ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in subpart (k)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Purchased Asset Documents) the lender or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest.
(k) In the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest.
(l) Provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with lender upon termination of the Ground Lease for any action taken or omitted to be taken by reason, including rejection of the Administrative Agent, Ground Lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 1 contract
Sources: Master Repurchase Agreement (Colony Credit Real Estate, Inc.)
Ground Leases. Solely A. Mortgagor will not do or omit to do any act or thing which could impair the security of this Mortgage with respect to Unencumbered Property, each of Mortgagor's leasehold estate under the Parent and the Borrower shall, and shall cause each other Loan Party to:Ground Leases.
(a) Diligently perform and observe in all material respects all of the terms, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; andB. Mortgagor
(b) Promptly notify the Administrative Agent of (i) shall comply with the giving provisions of the Ground Leases, (ii) shall give immediate written notice to the applicable Subsidiary Guarantor of any notice Mortgagee of any default by such Subsidiary Guarantor the lessor under any Acceptable the Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease Leases or of any notice thereofreceived by Mortgagor from such lessor of any default under a Ground Lease by Mortgagor, and deliver (iii) shall give immediate written notice to the Administrative Agent a true copy of such notice within five (5) Business Days Mortgagee of the applicable Subsidiary Guarantor’s receipt.
commencement of any remedial proceedings under the Ground Leases by any party thereto and, if required by Mortgagee, shall permit Mortgagee as Mortgagor's attorney-in-fact to control and act for Mortgagor in any such remedial proceedings and (civ) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time shall within thirty (30) days after reasonable request by Mortgagee obtain from the lessor under the Ground Leases and deliver to Mortgagee the lessor's estoppel certificate required thereunder, if any. The Mortgagor hereby expressly transfers and assigns to Mortgagee the benefit of all covenants contained in the Ground Leases, whether or not such covenants run with the land, but Mortgagee shall have no liability with respect to such covenants nor any other covenants contained in the Ground Leases.
C. Mortgagor shall not surrender the leasehold estate and interests herein conveyed nor terminate or cancel the Ground Leases creating said estate and interests, and the Mortgagor shall not, without the express written consent of Mortgagee alter or amend any Ground Lease. The Mortgagor agrees that there shall not be a merger of the Ground Lease, or of the leasehold estate created thereby, with the fee estate covered by the Ground Lease by reason of the leasehold estate or the fee estate, or any part of either, coming into common ownership, unless Mortgagee shall consent in writing to such merger. In the event Mortgagor shall acquire fee title to all or any portion of such Real Estate, this Mortgage shall further constitute a mortgage with respect to such fee interest or estate of Mortgagor in such Real Estate, upon the terms provided for herein without any amendment to or modification of this Mortgage being required. In such event, notwithstanding the fact that the provisions hereof shall be self-executing, Mortgagor agrees, immediately upon the written request of Mortgagee, to execute any amendment to this Mortgage or any additional mortgage or other agreement or instrument with respect to said Real Estate to further evidence and effect the existence of a valid mortgage in favor of Mortgagee with respect to Mortgagor's fee interest in all or any portion of said Real Estate, the form and content of any such amendment, mortgage or other instrument not inconsistent with the terms of this Mortgage to be approved by Mortgagee.
D. Mortgagee represents, covenants and warrants that: (i) each Ground Lease is in full force and effect and unmodified except as hereinbefore provided; (ii) that all rents reserved in the Ground Leases have been paid to the extent they were payable prior to the last day upon which any such option may be exercised, date hereof; and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints (iii) that there is no existing default under the Administrative Agent as its attorney-in-fact to exercise any such option in provisions of the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default Ground Leases or in the performance or observance of any term, covenant, or condition of any Acceptable the Ground Lease Leases on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor Mortgagor to be performed observed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonperformed.
Appears in 1 contract
Sources: First Mortgage and Security Agreement (Intergraph Corp)
Ground Leases. Solely (1) The Borrower has delivered to Administrative Agent a true, correct and complete copy of the Ground Lease. Leasehold Holder is the sole tenant and holder of a valid and existing Leasehold Estate under the Ground Lease, and the interest of Leasehold Holder thereunder has not been assigned, transferred, pledged, hypothecated or otherwise encumbered (except for the security interest granted by the Leasehold Holder to the Lender under the Security Instruments);
(2) The Ground Lease is in full force and effect and has not been Modified or assigned, and the Leasehold Holder has not waived, canceled or surrendered any of its respective rights thereunder;
(3) The Ground Lease does not require the continued use of any Mortgaged Property (i) under any designated trade name or (ii) for any single designated required use (other than use categories such as hotel and casino operations or similarly broad categories that would not have a Material Adverse Effect);
(4) All sums, charges, fees, costs, expenses, rent, additional rent, common charges, common area maintenance charges and other charges or assessments reserved in or payable under the Ground Lease, including without limitation, all sums, charges, fees, assessments, costs, and expenses in connection with any taxes, site preparation and construction, non-shareholder contributions, and common area and other property management activities, are current, and no Lien (other than the Permitted Encumbrances) with respect thereto has attached or been recorded on the Ground Lease Parcel (or threat thereof been made in writing) for failure to Unencumbered Property, each pay any of the Parent foregoing;
(5) Neither Leasehold Holder nor Ground Lease Fee Owner has delivered or received any notices of default under the Ground Lease and Leasehold Holder is not in default under the Borrower shallGround Lease, and shall cause each neither Leasehold Holder nor Ground Lease Fee Owner or any other Loan Party to:party to the Ground Lease has commenced any action or given or received any notice for the purpose of terminating the Ground Lease;
(a6) Diligently perform To the best knowledge of the Loan Parties, neither Ground Lease Fee Owner nor any other party to the Ground Lease is in default under any of the terms of the Ground Lease and observe there are no circumstances which, with the passage of time or the giving of notice, or both, would constitute a default under any terms of the Ground Lease by Ground Lease Fee Owner or any other party that would have a Material Adverse Effect, and, as of the Effective Date, neither Ground Lease Fee Owner nor any other party to the Ground Lease has transferred, assigned, hypothecated or encumbered the fee interest in the Ground Lease Parcel;
(7) All construction obligations required to be performed as of the Effective Date by the Leasehold Holder under the Ground Lease have been satisfied in all material respects all respects;
(8) The Ground Lease Parcel Purchase Option is in full force and effect and no Loan Party has exercised or given any written notice to the Ground Lease Fee Owner concerning the exercise of the terms, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground LeaseParcel Purchase Option; and
(b9) Promptly notify To the Administrative Agent best knowledge of (i) the giving Loan Parties, all easements granted pursuant to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease which were to have survived the site preparation and deliver completion of construction, remain in full force and effect and have not been released, terminated, extinguished or discharged by agreement or otherwise, except to the Administrative Agent extent it would not be expected to result in a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receiptMaterial Adverse Effect.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereon.
Appears in 1 contract
Ground Leases. Solely with (A) With respect to Unencumbered Property, each Ground Lease encumbered by a Deed of the Parent and the Borrower shall, and shall cause each other Loan Party toTrust:
(a) Diligently perform and observe in all material respects all of the terms, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable The Ground Lease and deliver any easements appurtenant or related thereto contain the entire agreement of the Ground Lessor and the applicable Borrower pertaining to the Administrative Agent Ground Lease Site covered thereby. The Borrowers have no estate, right, title or interest in or to the Ground Lease Site except under and pursuant to the Ground Lease and any easements appurtenant or related thereto. The Borrowers have made available or delivered a true and correct copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofthe Ground Lease to the Lender and the Ground Lease has not been modified, amended or assigned except as set forth therein and in any Estoppel related thereto.
(ii) any bankruptcyThere are no rights to terminate the Ground Lease other than the Ground Lessor’s right to terminate by reason of default, reorganizationcasualty, condemnation or insolvency of other reasons, in each case as expressly set forth in the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the as provided by applicable Subsidiary Guarantor’s receiptlaw.
(ciii) Exercise any individual option to extend or renew the term of an Acceptable The Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercisedis in full force and effect, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints no breach or default or event that with the Administrative Agent as its attorney-in-fact to exercise any such option in giving of notice or passage of time would constitute a breach or default under the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease (a “Ground Lease Default”) exists on the part of such Subsidiary Guarantor and shall fail to cure the same prior Borrowers or, to the expiration of any applicable cure period provided thereunderBorrowers’ Knowledge, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantorthe Ground Lessor under the Ground Lease, except to the end extent such Ground Lease Default would not be reasonably likely to have a Material Adverse Effect. The Borrowers have not received any written notice that a Ground Lease Default exists, or that the rights Ground Lessor or any third party alleges the same to exist that would, in either case, be reasonably likely to have a Material Adverse Effect.
(iv) The Borrower party to the Ground Lease is the exclusive owner of such Subsidiary Guarantor the lessee’s interest under and pursuant to the Ground Lease and has not assigned, transferred, or encumbered its interest in, to, and or under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection except in favor of the Lender pursuant to this Loan Agreement and the Administrative Agent for any action taken other Loan Documents.
(v) The Ground Lease or omitted a memorandum thereof or other instrument sufficient to permit recording of a deed of trust or similar security instrument has been recorded and the Ground Lease (or a separate agreement with respect thereto (the “Estoppel”)) permits the interest of the lessee thereunder to be taken encumbered by the Administrative Agentrelated Deed of Trust. ‑55‑
(vi) Except for the Permitted Encumbrances, the applicable Borrower’s interests in good faiththe Ground Lease is not subject to any liens or encumbrances superior to, in reliance thereonor of equal priority with, the related Deed of Trust unless a non‑disturbance agreement has been obtained from the applicable holder of such lien or encumbrance.
(vii) The Ground Lease does not impose restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender.
Appears in 1 contract
Sources: Loan and Security Agreement (Sba Communications Corp)
Ground Leases. Solely with With respect to Unencumbered Propertyany Mezzanine Loan where the related Mortgage Loan for such Mezzanine Loan is secured by a leasehold estate under a Ground Lease in whole or in part, each and the related Mortgage (for such Mortgage Loan) does not also encumber the related lessor’s fee interest in such related Mortgaged Property (indirectly securing the Mezzanine Loan and securing the related Mortgage Loan), based upon the terms of such Ground Lease, the related Mortgage Loan, the Mezzanine Loan and any estoppel or other agreement received from the ground lessor in favor of the Parent Seller, its successors and the Borrower shall, and shall cause each other Loan Party toassigns:
(a) Diligently perform and observe Such Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; andits successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage.
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by The lessor under such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to has agreed in a writing included in the Administrative Agent a true copy of each related Purchased Asset File (or in such notice within five (5Ground Lease) Business Days of that such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganizationGround Lease may not be amended or modified, or insolvency canceled or terminated by agreement of lessor and ▇▇▇▇▇▇, without the prior written consent of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receiptlender.
(c) Exercise any individual option to extend or renew the term of an Acceptable Such Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either borrower or the mortgagee) that extends not less than twenty (20) years beyond the stated maturity of the related Mezzanine Loan.
(d) Such Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances, or (ii) is subject to a subordination, non-in-fact disturbance and attornment agreement to exercise any such option which the mortgagee on the lessor’s fee interest in the name Mortgaged Property is subject.
(e) Such Ground Lease is assignable to the holder of the related Mortgage Loan and upon behalf its assigns without the consent of the lessor thereunder (or if such consent is necessary, it has been obtained).
(f) The Seller has not received any written notice of material default (or in the case of a Foreign Purchased Asset, forfeiture) under or notice of ACTIVE 237973428v.3 termination of such Subsidiary GuarantorGround Lease. To the Seller’s Knowledge, which power there is no material default under such Ground Lease and no condition that, but for the passage of attorney shall be irrevocable time or giving of notice, would result in a material default under the terms of such Ground Lease and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance case of a Foreign Purchased Asset, would lead to a forfeiture of such Ground Lease, and to the Seller’s Knowledge, such Ground Lease is in full force and effect as of the Purchase Date for the related Mortgage Loan.
(g) Such Ground Lease or observance ancillary agreement between the lessor and the lessee requires the lessor to give to the lender written notice of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenantsdefault, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end provides that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any no notice of default or termination is effective against the lender unless such notice is given to the lender.
(h) A lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Acceptable Ground Lease through legal proceedings) to cure any default under such Ground Lease which is curable after the lender’s receipt of notice of any default before the lessor may terminate such Ground Lease.
(i) Intentionally Omitted.
(j) Under the terms of such Ground Lease, then such notice shall constitute full protection an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the Administrative Agent ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in subpart (k)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mezzanine Loan Documents) the lender or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mezzanine Loan, together with any accrued interest.
(k) In the case of a total or substantially total taking or loss, under the terms of such Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mezzanine Loan (and the related Mortgage Loan), together with any accrued interest.
(l) Provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with lender upon early termination of such Ground Lease for any action taken or omitted to be taken by the Administrative Agentreason, including rejection of such Ground Lease in good faith, in reliance thereon.a bankruptcy proceeding. Ex. X-37 ACTIVE 237973428v.3
Appears in 1 contract
Sources: Master Repurchase Agreement (BrightSpire Capital, Inc.)
Ground Leases. Solely (a) This Lease, to the extent affecting and solely with respect to Unencumbered the Ground Leased Property, each of the Parent and the Borrower shall, is and shall cause each other Loan Party to:
(a) Diligently perform be subject and observe in all material respects subordinate to all of the terms, covenants, terms and conditions of any Acceptable the Ground Leases and to all liens, rights and encumbrances to which the Ground Leases are subject or subordinate. Tenant hereby acknowledges that Tenant has reviewed and agreed to all of the terms and conditions of the Ground Leases in effect as of the Commencement Date as listed on Schedule 2 attached hereto. Tenant hereby agrees that (x) Tenant shall comply with all provisions, terms and conditions of the Ground Leases in effect as of the Commencement Date as listed on Schedule 2, except to the extent such provisions, terms and conditions (1) apply solely to Landlord, (2) are not susceptible of being performed (or if breached, are not capable of being cured) by Tenant, and (3) in the case of the Ground Leases in effect as of the Commencement Date, are expressly set forth in the copies of such Ground Leases that were furnished to Landlord by Tenant on or prior to the Commencement Date (provisions, terms and conditions satisfying clauses (1) through (3), “Landlord Specific Ground Lease Requirements”), and (y) Tenant shall not do, or (except with respect to Landlord Specific Ground Lease Requirements) fail to do, anything that would cause any violation of the Ground Leases. Without limiting the foregoing, (i) Tenant acknowledges that it shall be obligated to (and shall) pay, as part of Tenant’s obligations under this Lease, all monetary obligations imposed upon Landlord as the lessee under any and all of the Ground Leases, including, without limitation, any rent and additional rent payable thereunder and shall, upon request, provide satisfactory proof evidencing such payments to Landlord, (ii) to the extent Landlord is required to obtain the written consent of the lessor under any applicable Ground Lease (in each case, the “Ground Lessor”) to alterations of or the subleasing of all or any portion of the Ground Leased Property pursuant to any Ground Lease, Tenant shall likewise obtain the applicable Ground Lessor’s written consent to alterations of or the sub-subleasing of all or any portion of the Ground Leased Property (in each case, to the extent the same is permitted hereunder), and (iii) (without limitation of the Insurance Requirements hereunder) Tenant shall carry and maintain general liability, automobile liability, property and casualty, worker’s compensation, employer’s liability insurance and such other insurance, if any, in amounts and with policy provisions, coverages and certificates as required of Landlord as tenant under such Acceptable any applicable Ground Lease; . The foregoing is not intended to vitiate or supersede Landlord’s rights as lessee under any Ground Lease, and, without limitation of the preceding portion of this sentence or of any other rights or remedies of Landlord hereunder, in the event Tenant fails to comply with its obligations with respect to Ground Leases as described herein (without giving effect to any notice or cure periods thereunder), Landlord shall have the right (but without any obligation to Tenant or any liability for failure to exercise such right), following written notice to Tenant and the passage of a reasonable period of time (except to the extent the failure is of a nature such that it is not practicable for Landlord to provide such prior written notice, in which event Landlord shall provide written notice as soon as practicable) to cure such failure, in which event Tenant shall reimburse Landlord for Landlord’s reasonable costs and expenses incurred in connection with curing such failure. The parties acknowledge that the Ground Leases on the one hand, and this Lease on the other hand, constitute separate contractual arrangements among separate parties and nothing in this Lease shall vitiate or otherwise affect the obligations of the parties to the Ground Leases, and nothing in the Ground Leases shall vitiate or otherwise affect the obligations of the parties hereto pursuant to this Lease (except as specifically set forth in this Section 7.3).
(b) Promptly notify Subject to Section 7.3(c) below, in the Administrative Agent event of cancellation or termination of any Ground Lease for any reason whatsoever whether voluntary or involuntary (by operation of law or otherwise) prior to the expiration date of this Lease, including extensions and renewals granted thereunder (other than the cancellation or termination of a Ground Lease entered into in connection with a sale-leaseback transaction by Landlord (other than if such cancellation or termination resulted from Tenant’s default under this Lease), which cancellation or termination results in the Leased Property leased under such Ground Lease no longer being subject to this Lease), then, this Lease and Tenant’s obligation to pay the Rent and Additional Charges hereunder and all other obligations of Tenant hereunder (other than such obligations of Tenant hereunder that concern solely the applicable Ground Leased Property demised under the affected Ground Lease) shall continue unabated; provided that if Landlord (or any Fee Mortgagee) enters into a replacement lease with respect to the applicable Ground Leased Property on substantially similar terms to those of such cancelled or terminated Ground Lease, then such replacement lease shall automatically become a Ground Lease hereunder and such Ground Leased Property shall remain part of the Leased Property hereunder. Nothing contained in this Lease shall create, or be construed as creating, any privity of contract or privity of estate between Ground Lessor and Tenant.
(c) With respect to any Ground Leased Property, the Ground Lease for which has an expiration date (taking into account any renewal options exercised thereunder as of the Commencement Date or hereafter exercised) prior to the expiration of the Term (taking into account any exercised renewal options hereunder), this Lease shall expire solely with respect to such Ground Leased Property concurrently with such Ground Lease expiration date (taking into account the terms of the following sentences of this Section 7.3(c)). There shall be no reduction in Rent nor Required Capital Expenditures by reason of such expiration with respect to, and the corresponding removal from this Lease of, any such Ground Leased Property. Landlord (as ground lessee) shall be required to exercise all renewal options contained in each Ground Lease so as to extend the term thereof (provided, that Tenant shall furnish to Landlord written notice of the outside date by which any such renewal option must be exercised in order to validly extend the term of any such Ground Lease; such notice shall be delivered no earlier than one hundred twenty (120) days prior to the earliest date any such option may be validly exercised and no later than forty-five (45) days prior to the outside date by which such option must be validly exercised, which notice shall be followed by a second notice from Tenant to Landlord of such outside date, such notice to be furnished to Landlord no later than fifteen (15) days prior to the outside date), and Landlord shall provide Tenant with a copy of Landlord’s exercise of such renewal option. With respect to any Ground Lease that otherwise would expire during the Term, Tenant, on Landlord’s behalf, shall have the right to negotiate for a renewal or replacement of such Ground Lease with the third-party ground lessor, on terms satisfactory to Tenant (subject, (i) the giving to Landlord’s reasonable consent with respect to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease provisions, terms and deliver conditions thereof which would reasonably be expected to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofmaterially and adversely affect Landlord, and (ii) in the case of any bankruptcysuch renewal or replacement that would extend the term of such Ground Lease beyond the Term, reorganizationto Landlord’s sole right to approve any such provisions, terms and conditions that would be applicable beyond the Term).
(d) Nothing contained in this Lease amends, or insolvency shall be construed to amend, any provision of the landlord Ground Leases.
(e) Tenant shall indemnify, defend and hold harmless the Landlord Indemnified Parties, the Ground Lessor, any master lessor to Ground Lessor and any other party entitled to be indemnified by Landlord pursuant to the terms of any Ground Lease from and against any and all claims arising from or in connection with the Facility and/or this Lease with respect to which such party is entitled to indemnification by Landlord pursuant to the terms of any Ground Lease, and from and against all costs, attorneys’ fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon to the extent provided in the applicable Ground Lease; and in case any such action or proceeding be brought against any of the Landlord Indemnified Parties, any Ground Lessor or any master lessor to Ground Lessor or any such party by reason of any such claim, Tenant, upon notice from Landlord or any of its Affiliates or such other Landlord Indemnified Party, such Ground Lessor or such master lessor to Ground Lessor or any such party, shall defend the same at Tenant’s expense by counsel reasonably satisfactory to the party or parties indemnified pursuant to this paragraph or the Ground Lease. Notwithstanding the foregoing, in no event shall Tenant be required to indemnify, defend or hold harmless the Landlord Indemnified Parties, the Ground Lessor, any master lessor to Ground Lessor or any other party from or against any claims to the extent resulting from (i) the gross negligence or willful misconduct of Landlord, or (ii) the actions of Landlord except if such actions are the result of Tenant’s failure, in violation of this Lease, to act.
(f) To the extent required under the applicable Ground Lease, Tenant hereby waives any Acceptable and all rights of recovery (including subrogation rights of its insurers) from the applicable Ground Lessor, its agents, principals, employees and representatives for any loss or damage, including consequential loss or damage, covered by any insurance policy maintained by Tenant, whether or not such policy is required under the terms of the Ground Lease.
(g) Landlord shall not enter into any new ground leases with respect to the Leased Property or any portion thereof (except as provided by Section 7.3(h)), or amend, modify or terminate any existing Ground Leases (except as provided by Section 7.3(b) or Section 7.3(c)), in each case without Tenant’s prior written consent in its reasonable discretion, provided, that, Landlord may amend or modify Ground Leases in a manner that will not adversely affect Tenant (e.g., an amendment relating to a period following the end of the Term), and Landlord may acquire the fee interest in the property leased pursuant to any Ground Lease, so long as Tenant’s rights and obligations hereunder are not adversely affected thereby.
(h) Landlord may enter into new Ground Leases with respect to the Leased Property or any portion thereof (including pursuant to a sale-leaseback transaction), provided that, notwithstanding anything herein to the contrary, (other than replacement Ground Lease(s) made pursuant to Section 7.3(b) or Ground Lease(s) made pursuant to the final sentence of Section 7.3(c)), Tenant shall not be obligated to comply with any additional or more onerous obligations under such new ground lease with which Tenant is not otherwise obligated to comply under this Lease (and, without limiting the generality of the foregoing, Tenant shall not be required to incur any additional monetary obligations (whether for payment of rents under such new Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of otherwise) in connection with such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable new Ground Lease) (except to a de minimis extent), then unless Tenant approves such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, additional obligations in good faith, in reliance thereonits sole and absolute discretion.
Appears in 1 contract
Ground Leases. Solely Seller has delivered to Purchaser contemporaneous with respect the full execution of this Agreement, true, correct and complete copies of each Ground Lease described on the attached Schedule 4.3. Seller is the original lessee (or has validly succeeded to Unencumbered Property, each the rights of the Parent and original lessee) under each Ground Lease, holds the Borrower shallleasehold interest created under each Ground Lease, and shall cause each other Loan Party to:
(a) Diligently perform and observe in all material respects all is the sole owner of the termsImprovements located on the real property being leased thereunder. To Seller’s Knowledge, covenants, and conditions of any Acceptable the Improvements are all constructed within the area leased pursuant to each Ground Lease or easements appurtenant to each Ground Lease. Seller will assign each Ground Lease and convey the Improvements in connection therewith to Purchaser at Closing free and clear of all liens and encumbrances, excepting only the Permitted Exceptions. Furthermore, Seller represents and warrants that: (i) each Ground Lease is in full force and effect and has not been modified or amended, except as tenant provided to Purchaser; (ii) Seller is in actual possession of the leased premises under such Acceptable each Ground Lease; (iii) Seller has paid the rent set forth in each Ground Lease on a current basis and there are no past due amounts; (iv) except as expressly set forth in each Ground Lease, Seller is not obligated to pay any additional rent or charges to any Ground Lessor for any period subsequent to the Closing Date; (v) Seller has not received notice from or given notice to any Ground Lessor claiming that such Ground Lessor or Seller is in default under any Ground Lease, and
(b) Promptly notify , to the Administrative Agent best of (i) Seller’s Knowledge, there is no event which, with the giving of notice or the passage of time or both, would constitute such a default; (vi) each Ground Lease does not provide for non-monetary rent or other consideration to the applicable Subsidiary Guarantor Ground Lessor thereunder; (vii) except for those Tower Sites where Seller has acquired a long term easement interest, and except for those sites set forth on Schedule 4.3(vii) Ground Lessor is not an Affiliate of any notice of any default by such Subsidiary Guarantor under any Acceptable Seller, (viii) each Ground Lease (or a memorandum thereof) and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days all assignments of such Subsidiary Guarantor’s receipt thereofGround Lease (if any) is recorded in the appropriate jurisdiction, or a memorandum or other document referencing such Ground Lease will be recorded in the appropriate jurisdiction as of the Closing Date, and (iiix) any bankruptcy, reorganization, or insolvency of the landlord Seller has no obligation under any Acceptable Ground Lease to relocate any Tower now or of in the future. Seller has not received notice that any notice thereofGround Lessor has conveyed, and deliver to the Administrative Agent a true copy of assigned or transferred such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at to any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option third party engaged in the name business of and upon behalf of such Subsidiary Guarantoracquiring, which power of attorney shall be irrevocable and shall be deemed by easement, ground lease, assignment or other method, rights to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail leases related to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonwireless communications facilities.
Appears in 1 contract
Sources: Purchase and Sale Agreement (StratCap Digital Infrastructure REIT, Inc.)
Ground Leases. Solely with With respect to Unencumbered Propertyeach Ground Lease, each Borrower shall (i) pay all rents, additional rents and other sums required to be paid by Borrower, as tenant under and pursuant to the provisions of the Parent and the Borrower shallsuch Ground Lease, and shall cause each other Loan Party to:
(aii) Diligently diligently perform and observe in all material respects all of the terms, covenants, covenants and conditions of any Acceptable such Ground Lease on the part of Borrower in all material respects, as tenant under such Acceptable Ground Lease; and
thereunder, (biii) Promptly promptly notify the Administrative Agent Lender of (i) the giving to the applicable Subsidiary Guarantor of any notice by the landlord under such Ground Lease to Borrower of any default by such Subsidiary Guarantor under any Acceptable Ground Lease Borrower, as tenant thereunder, and deliver to the Administrative Agent Lender a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (iiiv) promptly notify Lender of any bankruptcy, reorganization, reorganization or insolvency of the landlord under any Acceptable such Ground Lease or of any notice thereofthereof received by Borrower, and deliver to the Administrative Agent Lender a true copy of such notice within five (5) Business Days of the applicable Subsidiary GuarantorBorrower’s receipt.
(c) Exercise . Borrower shall not, without the prior consent of Lender, surrender the leasehold estate created by any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at or terminate or cancel any time within thirty (30) days prior to the last day upon which Ground Lease or modify, change, supplement, alter or amend any such option may be exercisedGround Lease in any material respect, either orally or in writing, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor if Borrower shall default in the performance or observance of any term, covenant, covenant or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor Borrower, as tenant thereunder, in any material respect and shall fail to cure the same (or shall fail to receive a written waiver of same from the landlord under such Ground Lease) prior to the expiration of any applicable cure period provided thereunder, then the Administrative Agent 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, covenants and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor Borrower to be performed or observed on behalf of such Subsidiary GuarantorBorrower, to the end that the rights of such Subsidiary Guarantor Borrower in, to, to and under such Acceptable Ground Lease shall be kept unimpaired and free from default; provided that Lender shall use reasonable efforts to notify Borrower that Lender intends (but is not obligated) to pay any such sums, perform any such act and/or take any such action. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent Lender a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent Lender for any action taken or omitted to be taken by the Administrative AgentLender, in good faith, in reliance thereon. Borrower shall exercise each individual option, if any, to extend or renew the term of each Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and 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, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
Appears in 1 contract
Ground Leases. Solely with respect to Unencumbered Property, each of the Parent and the Borrower shall, and shall cause each other Loan Party to:
(a) Diligently With respect to each Ground Lease, each Ground Lessee shall (i) pay all rents, additional rents and other sums required to be paid by such Ground Lessee, as tenant under and pursuant to the provisions of each Ground Lease, (ii) diligently perform and observe in all material respects all of the terms, covenants, covenants and conditions of any Acceptable each Ground Lease on the part of such Ground Lessee, as tenant under such Acceptable Ground Lease; and
thereunder, (biii) Promptly promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice by the landlord under the applicable Ground Lease to any Ground Lessee of any default by such Subsidiary Guarantor under any Acceptable Ground Lease Lessee, as tenant thereunder, and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days days of such Subsidiary Guarantor’s receipt thereof, and (iiiv) promptly notify Administrative Agent of any bankruptcy, reorganization, reorganization or insolvency of the landlord under any Acceptable the applicable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days days of such Ground Lessee's receipt. No Ground Lessee shall, without the prior consent of Administrative Agent and the Required Lenders, surrender the leasehold estate created by the applicable Subsidiary Guarantor’s receipt.
(c) Exercise Ground Lease or terminate or cancel any individual option Ground Lease or modify, change, supplement, alter, amend or waive any term of any Ground Lease, either orally or in writing; provided that only the consent of Administrative Agent shall be required for any amendment to extend or renew a Ground Lease which only extends the term of an Acceptable such Ground Lease upon demand and increases the annual rent payable thereunder by 5% or less; and provided further, that Borrowers shall be entitled to terminate or cancel the Myrtle Beach Golf Course Lease without the prior consent of the Administrative Agent made at or any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interestLender. If the applicable Subsidiary Guarantor any Ground Lessee shall default in the performance or observance of any term, covenant, covenant or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided Ground Lessee, as tenant thereunder, then the 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 terms, covenants, covenants and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor Ground Lessee to be performed or observed on behalf of such Subsidiary GuarantorGround Lessee, to the end that the rights of such Subsidiary Guarantor Ground Lessee in, to, to and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable the applicable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereon. Each Ground Lessee shall exercise its option, if any, to extend or renew the term of each Ground Lease (other than the Myrtle Beach Golf Course 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 each Ground Lessee hereby expressly authorizes and appoints Administrative Agent its attorney-in-fact to exercise any such option in the name of and upon behalf of such Ground Lessee, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
(b) Notwithstanding anything contained in any Ground Lease to the contrary and except for Operating Leases, no Ground Lessee or Affiliate Ground Lessor shall further sublet any portion of the related Collateral Property (other than as permitted pursuant to Section 7.16) without prior written consent of Administrative Agent and the Required Lenders. To the extent that consent or approval of Required Lenders or Administrative Agent is required under this Section 7.23, any such proposed modification, change, supplement, alteration or amendment, or proposed sublease submitted to Administrative Agent and Lenders for approval shall be deemed approved if (i) Borrowers deliver to Administrative Agent and Lenders a written request for such approval marked in bold lettering with the following language: “ADMINISTRATIVE AGENT AND REQUIRED LENDERS' RESPONSE IS REQUIRED WITHIN FIFTEEN (15) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A TERM LOAN AGREEMENT AMONG THE UNDERSIGNED, AND ADMINISTRATIVE AGENT AND OTHERS” and the envelope containing the request must be marked “PRIORITY”, and (ii) Administrative Agent and Required Lenders shall have failed to notify Borrowers of approval or disapproval within such fifteen (15) Business Days following Administrative Agent's and the Lenders' receipt of Borrowers' written request together with such proposed modification, change, supplement, alteration or amendment, or sublease and any and all other information and documentation relating thereto reasonably required by Administrative Agent or the Lenders to reach a decision. In no event shall Administrative Agent or the Required Lenders be deemed to have approved any modification, change, supplement, alteration or amendment or sublease that may have a Material Adverse Effect. Upon a Borrower's request, Administrative Agent and each of the disapproving Lenders shall deliver to such Borrower a reasonably detailed description of the reasons for any disapprovals under this Section 7.23.
(c) In the event of any default by any Ground Lessee in the performance of any of its obligations under any Ground Lease, including, without limitation, any default in the payment of rent and other charges and impositions made payable by the lessee thereunder, then, in the case of a default in the payment of any monetary obligation, Administrative Agent may, at its option and without notice, make payment to cure such default, or, in the case of a default in the performance of any non-monetary obligation, Administrative Agent may, at its option, cause the default or defaults to be remedied and otherwise exercise any and all of the rights of the Ground Lessee thereunder in the name of and on behalf of the Ground Lessee. Each Owner shall, on demand, reimburse Agent for all advances made and expenses incurred by Administrative Agent in curing any such default (including, without limitation, reasonable attorneys' fees), together with interest thereon computed at the Default Rate from the date that an advance is made or expense is incurred, to and including the date the same is paid.
(d) Notwithstanding anything to the contrary contained herein with respect to any Ground Lease:
(i) The Lien of the Mortgages attach to all of the Ground Lessees' rights and remedies at any time arising under or pursuant to subsection 365(h) of the Bankruptcy Code, including, without limitation, all of the Ground Lessees' rights, as debtor, to remain in possession of the related Collateral Property which is subject to a Ground Lease;
(ii) No Ground Lessee shall, without Administrative Agent's written consent, elect to treat a Ground Lease as terminated under subsection 365(h)(1) of the Bankruptcy Code. Any such election made without Administrative Agent's prior written consent shall be void;
(iii) As security for the Obligations, each Ground Lessee unconditionally assigns, transfers and sets over to Administrative Agent for the benefit of the Lenders all of such Ground Lessee's claims and rights to the payment of damages arising from any rejection by any Ground Lessor under the Bankruptcy Code. Administrative Agent and the applicable Owner shall proceed jointly or in the name of such Owner in respect of any claim, suit, action or proceeding relating to the rejection of a Ground Lease, including, without limitation, the right to file and prosecute any proofs of claim, complaints, motions, applications, notices and other documents in any case in respect of a Ground Lessor 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 all of the Obligations shall have been satisfied and discharged in full. Any amounts received by Administrative Agent or any Owner as damages arising out of the rejection of a Ground Lease as aforesaid shall be applied to all costs and expenses of Administrative Agent (including, without limitation, reasonable attorneys' fees and costs) incurred in connection with the exercise of any of its rights or remedies in accordance with the applicable provisions hereof;
(iv) If pursuant to subsection 365(h) of the Bankruptcy Code, any Ground Lessee seeks to offset, against the rent reserved in a Ground Lease, the amount of any damages caused by the nonperformance by the applicable Ground Lessor of any of its obligations thereunder after the rejection by such Ground Lessor under the Bankruptcy Code, then no Owner shall effect any offset of the amounts so objected to by Administrative Agent. If Administrative Agent has failed to object as aforesaid within ten (10) days after notice from such Ground Lessee in accordance with the first sentence of this subsection, such Ground Lessee may proceed to offset the amounts set forth in such Ground Lessee' notice to Administrative Agent;
(v) In any action, proceeding, motion or notice shall be commenced or filed in respect of any Ground Lessor of all or any part any Collateral Property subject to a Ground Lease in connection with any case under the Bankruptcy Code, Administrative Agent and the applicable Owner shall cooperatively conduct and control any such litigation with counsel agreed upon between such Owner and Administrative Agent in connection with such litigation. Borrowers shall, upon demand, pay to Administrative Agent all costs and expenses (including reasonable attorneys' fees and costs) actually paid or actually incurred by Administrative Agent or any Lender in connection with the cooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be secured by the Lien of the applicable Mortgage; and
(vi) Each Owner shall promptly, after obtaining knowledge of such filing, notify Administrative Agent orally of any filing by or against a Ground Lessor of a petition under the Bankruptcy Code. Each Owner shall thereafter promptly give written notice of such filing to Administrative Agent and the Lenders, setting forth any information available to such Owner as to the date of such filing, the court in which such petition was filed, and the relief sought in such filing. Each Owner shall promptly deliver to Administrative Agent any and all notices, summons, pleadings, applications and other documents received by Administrative Agent in connection with any such petition and any proceedings relating to such petition.
(e) Each of Philadelphia Affiliate Ground Lessor and Hospitality Owner acknowledge and confirm that, with respect to the Philadelphia Affiliate Ground Lease and each of the Boca Raton Affiliate Ground Lessor and Boca Owner acknowledge and confirm that with respect to the Boca Raton Affiliate Ground Lease:
(i) the Mortgage covering such Ground Lease Property is and shall be deemed to be a “Leasehold Mortgage” as set forth in the applicable Affiliate Ground Lease, for all purposes thereunder;
(ii) Administrative Agent, as mortgagee, grantee or beneficiary, as applicable, thereunder, together with its successors and assigns in such capacity, shall constitute a “Leasehold Mortgagee” thereunder;
(iii) the Mortgages covering such Ground Lease Property shall be entitled to all the rights, benefits and privileges of a “Leasehold Mortgage” under the applicable Affiliate Ground Lease;
(iv) Administrative Agent shall be entitled to all the rights, benefit and privileges of a “Leasehold Mortgagee” under the applicable Affiliate Ground Lease; and
(v) the notice for address for the “Leasehold Mortgagee” under the applicable Affiliate Ground Lease, shall be the address of Administrative Agent as set forth in this Agreement.
Appears in 1 contract
Sources: Revolving Credit Agreement (FelCor Lodging Trust Inc)
Ground Leases. Solely Borrower and any applicable Guarantor covenants, represents and warrants to Agent and each of the Lenders with respect to Unencumbered Property, each any ground lease of any of the Parent and the Borrower shallMortgaged Properties (a "Qualified Ground Lease" or collectively, and shall cause each other Loan Party to"Qualified Ground Leases"), if any, as follows:
(a) Diligently perform and observe in all material respects all Except as previously disclosed to Agent, to the best knowledge of the termsBorrower, covenantsno default has occurred and is continuing under the terms of any Qualified Ground Lease, and conditions no event has occurred that, with the passage of time or service of notice, or both, would constitute an event of default under any Acceptable Ground Lease as tenant under such Acceptable Qualified Ground Lease; and.
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Each Qualified Ground Lease is in full force and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipteffect.
(c) Exercise any individual option to extend or renew the term of an Acceptable All rents, additional rents, percentage rents and all other charges due and payable under each Qualified Ground Lease have been fully paid.
(d) Subject to the Permitted Encumbrances, Borrower is the owner of the entire lessee's interest in and under each Qualified Ground Lease and has the right and authority under each Qualified Ground Lease to execute this Agreement, the related Mortgage and other related Loan Documents, and to encumber Borrower's interest in the Qualified Ground Leases.
(e) Borrower and any Guarantor, as applicable, shall, at its sole cost and expense, promptly and timely perform and observe, or cause the applicable Tenant under a Qualified Ground Lease to promptly and timely perform and observe, all the material terms, covenants and conditions required to be performed and observed by Borrower as lessee under each Qualified Ground Lease (including the payment of all rent, additional rent, percentage rent and other charges required to be paid under such Qualified Ground Lease).
(f) If Borrower or any Guarantor, as applicable, shall violate any of the covenants specified above, then, subject to the applicable Qualified Ground Lease terms, Borrower grants Agent the right (but not the obligation) to cause the default or defaults under any Qualified Ground Lease and the applicable Tenant Lease to be remedied and otherwise exercise any and all rights of Borrower under each Qualified Ground Lease, as may be necessary to prevent or cure any default, provided such actions are necessary to protect Lenders' interest under this instrument, and Agent shall have the right subject to the terms of the Qualified Ground Lease to enter all or any portion of such Mortgaged Property at such times and in such manner as Agent deems necessary, to prevent or to cure any such default.
(g) The actions or payments of Agent to cure any default by Borrower or any Guarantor, as applicable, under any Qualified Ground Lease shall not remove or waive, as between any Obligor and Lenders, the default that occurred under this Agreement by virtue of the default by Borrower or Guarantor, as applicable, under any Qualified Ground Lease. All sums expended by Agent to cure any such default shall be paid by Borrower to Agent, upon demand demand, with interest on such sum at the rate set forth in the Note from the date such sum is expended to and including the date the reimbursement payment is made to the Agent. All such indebtedness shall be deemed to be secured by the Administrative Mortgages and other Loan Documents.
(h) Borrower shall notify Agent made at promptly in writing after any Obligor receives notice of the occurrence of any material default by the lessor under any Qualified Ground Lease or the occurrence of any event that, with the passage of time within or service of notice, or both, would constitute a material default by the lessor under any Qualified Ground Lease, and the receipt by Borrower or Guarantor, as applicable, of any notice (written or otherwise) from the lessor under any Qualified Ground Lease noting or claiming the occurrence of any default by any Obligor under any Qualified Ground Lease or the occurrence of any event that, with the passage of time or service of notice, or both, would constitute a default by any Obligor under any Qualified Ground Lease. Borrower shall promptly deliver to Agent a copy of any such written notice of default.
(i) Within thirty (30) days prior after written demand by Agent, Borrower shall use reasonable efforts (other than payments to the last day upon lessor) to obtain from the lessor under any Qualified Ground Lease and furnish to Agent the estoppel certificate of such lessor stating the date through which rent has been paid and whether or not there are any defaults thereunder and specifying the nature of such option may be exercisedclaimed defaults, if any.
(j) Subject to the applicable Qualified Ground Lease terms, and each the terms of the applicable Subsidiary Guarantor hereby expressly authorizes Lease Borrower or Guarantor, as applicable, shall promptly execute, acknowledge and deliver to Agent such instruments as may reasonably be required to permit Agent to cure any default under any Qualified Ground Lease or permit Agent to take such other action required to enable Agent to cure or remedy the matter in default and preserve the security interest of Agent under the Loan Documents with respect to any Property which is the subject of a Qualified Ground Lease. Borrower irrevocably appoints the Administrative Agent as its true and lawful attorney-in-fact to exercise do, in its name or otherwise, any and all acts and to execute any and all documents that are necessary to preserve any rights of Borrower under or with respect to the Qualified Ground Leases, after an Event of Default, including the right to effectuate any extension or renewal of any Qualified Ground Lease, or to preserve any rights of Borrower or Guarantor, as applicable, whatsoever in respect of any part of any Qualified Ground Lease (and the above powers granted to Agent are coupled with an interest and shall be irrevocable).
(k) The generality of the provisions of this section relating to the Qualified Ground Lease shall not be limited by other provisions of this Agreement or the other Loan Documents setting forth particular obligations of any Obligor that are also required of Borrower or Guarantor, as applicable, with respect to the Qualified Ground Leases or any related Mortgaged Properties subject to any such option in the name of and upon behalf of such Subsidiary Qualified Ground Lease.
(l) Borrower or Guarantor, which power of attorney as applicable, shall be irrevocable and not, without Agent's prior written consent, surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modify or amend in a material or adverse manner, any Qualified Ground Lease. Consent to one amendment, change, agreement or modification shall not be deemed to be coupled with an interesta waiver of the right to require consent to other, future or successive amendments, changes, agreements or modifications. If the applicable Subsidiary Guarantor shall default in the performance or observance Any acquisition of any term, covenantlessor's interest in any Qualified Ground Lease by Borrower or Guarantor, or condition any affiliate of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunderBorrower or Guarantor, then the Administrative Agent shall have the right, but shall be under no obligation, accomplished by Borrower or any such Guarantor in such a manner so as to pay any sums and to perform any act or take any action as may be appropriate to cause all avoid a merger of the terms, covenants, interests of lessor and conditions of lessee in such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Qualified Ground Lease, then unless consent to such notice shall constitute full protection merger is granted by Agent.
(m) Notwithstanding anything to the Administrative Agent for contrary contained in this Agreement with respect to the Qualified Ground Leases:
(i) The lien of the related Mortgage attaches to all of Borrower's rights and remedies at any action taken time arising under or omitted pursuant to be taken by Subsection 365(h) of the Administrative AgentBankruptcy Code, in good faith, in reliance thereon.11 U.S.
Appears in 1 contract
Sources: Master Credit Agreement (Entertainment Properties Trust)
Ground Leases. Solely For purposes of the Mortgage Loan Purchase Agreement, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land (or, with respect to Unencumbered air rights leases, the air) and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency or similar leases for purposes of conferring a tax abatement or other benefit. With respect to any Mortgage Loan where the Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of Seller, its successors and shall cause each other Loan Party toassigns, Seller represents and warrants that:
(a) Diligently perform and observe The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; andits successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage;
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by The lessor under such Subsidiary Guarantor under any Acceptable Ground Lease has agreed in a writing included in the related Mortgage File (or in such Ground Lease) that the Ground Lease may not be amended or modified, or canceled or terminated by agreement of lessor and deliver to lessee, without the Administrative Agent a true copy prior written consent of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofthe lender, and (ii) any bankruptcy, reorganization, or insolvency no such consent has been granted by the Seller since the origination of the landlord under Mortgage Loan except as reflected in any Acceptable Ground Lease or of any notice thereof, and deliver to written instruments which are included in the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.related Mortgage File;
(c) Exercise any individual option to extend or renew the term of an Acceptable The Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints will be enforceable, by either Mortgagor or the Administrative Agent as its attorney-in-fact to exercise any such option in Mortgagee) that extends not less than twenty (20) years beyond the name stated maturity of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenantrelated Mortgage Loan, or condition of any Acceptable ten (10) years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
(d) The Ground Lease on the part of such Subsidiary Guarantor and shall fail either (i) is not subject to cure the same prior to the expiration of any applicable cure period provided thereunder, then the Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act liens or take any action as may be appropriate to cause all of the terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, encumbrances superior to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If or of equal priority with, the landlord under any Acceptable Ground Lease shall deliver to Mortgage, except for the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereon.related fee interest of
Appears in 1 contract
Sources: Mortgage Loan Purchase Agreement
Ground Leases. Solely with respect The Mortgage Loan is not secured by the Mortgagor’s interest in a Ground Lease except to Unencumbered Property, each the extent permitted pursuant to paragraph (ix) of the Parent and the Borrower shallthis Schedule 1, and shall cause each other if such Mortgage Loan Party tois secured by the Mortgagor’s interest in a Ground Lease:
(a1) Diligently perform and observe in all material respects all The Ground Lease or a memorandum thereof has been duly recorded, the Ground Lease permits the interest of the termslessee thereunder to be encumbered by the related Mortgage, covenantsdoes not restrict the use of the Mortgaged Property by the lessee or its successors and assigns in a manner that would adversely affect the security provided by the related Mortgage, and conditions there has not been a material change in the terms of the Ground Lease since its recordation, with the exception of written instruments which are part of the related mortgage file;
(2) The Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related ground lessor’s related fee interest;
(3) The Ground Lease either (i) has a term which extends not less than ten years beyond the maturity date of the related Mortgage Loan or (ii) grants the lessee the option to extend the term of the lease for a period (in the aggregate) which exceeds ten years beyond the maturity date of the related Mortgage Loan;
(4) The Ground Lease is valid, in good standing, and in full force and effect;
(5) The lessee is not in default under any provision of the lease;
(6) The mortgagee under the Mortgage Loan is given at least 30 days’ notice of any Acceptable default and an opportunity to cure any defaults under the Ground Lease as tenant or to take over the Mortgagor’s rights under such Acceptable the Ground Lease;
(7) The Ground Lease does not contain any default provisions that could give rise to forfeiture or termination of the Ground Lease except for the non-payment of the Ground lease rents; and
(b) Promptly notify 8) The Ground Lease provides that the Administrative Agent leasehold can be transferred, mortgaged and sublet an unlimited number of (i) the giving times either without restriction or on payment of a reasonable fee and delivery of reasonable documentation to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receiptlessor.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereon.
Appears in 1 contract
Ground Leases. Solely Borrower hereby represents and warrants to Lender the following with respect to Unencumbered Property, each of the Parent and the Borrower shall, and shall cause each other Loan Party toGround Lease:
(a) Diligently perform and observe in all material respects all A memorandum of such Ground Lease has been duly recorded. Each such Ground Lease permits the interest of the termsBorrower or its Subsidiary, covenantsas the case may be, and conditions to be encumbered by a mortgage. There have not been any material amendments or modifications to the terms of any Acceptable such Ground Lease that has been mortgaged pursuant to Section 6.10 since its recordation, with the exception of written instruments which have been recorded or disclosed to the Lender. Each such Ground Lease shall provide that, without the prior written consent of Lender, it may not be canceled, terminated or surrendered, provided, however, such Ground Lease may also provide that if Lender has received notice of a default under the Ground Lease (as tenant provided in Section 4.27(e) hereof) and such default remains uncured after the expiration of the applicable cure periods, then the lessor under the Ground Lease may take appropriate steps or exercise applicable remedies to terminate the Ground Lease. Each such Ground Lease shall also provide that it may not be amended or modified, without the prior written consent of Lender; provided, however, Lender's consent shall not be required to the extent such amendment or modification would not (A) adversely affect the protections afforded to Lender under the Ground Lease or Lender's security interest in Borrower's or Subsidiary's leasehold interest under such Acceptable Ground Lease or (B) materially increase the burden of the Borrower or such Subsidiary under such Ground Lease; and.
(b) Promptly notify Except for Liens with respect thereto permitted under Section 7.2 arising after the Administrative Agent Closing Date and Liens permitted under Section 7.2(d) and Liens for taxes, assessments, governmental charges, levies or claims not yet due arising prior to the Closing Date, the interest of the Borrower or any Subsidiary of the Borrower, as the case may be, in each Ground Lease that has been mortgaged pursuant to Section 6.10 is not subject to any Liens or encumbrances superior to, or of equal priority with, the related Mortgage other than the ground lessor's related fee simple interest; provided, that in the event that any such fee simple mortgages were recorded prior to the Acquisition of any Ground Lease (or if executed by the Borrower or any of its Subsidiaries, the execution of such Ground Lease) or thereafter to the extent the Borrower or any of its Subsidiaries becomes aware of such recording, Borrower or such Subsidiary of the Borrower has obtained a non-disturbance agreement which provides that in the event of foreclosure of such mortgage, the mortgagee thereunder shall not disturb the right of possession of Borrower or any of its Subsidiaries under the subject Ground Lease, unless (i) such Ground Lease by its express terms clearly provides that the leasehold interest under such Ground Lease is superior to the lien and provisions of any mortgage then existing or thereafter created on the fee simple interest encumbered by such Ground Lease, (ii) the Borrower or any of its Subsidiaries shall have obtained title insurance that is adequate in the reasonable judgment of the Lender to ensure that such Ground Lease is superior to any such mortgages, or (iii) such Ground Lease is not by its express terms superior to the lien and provisions of any mortgage then existing or thereafter created on the fee simple interest encumbered by such Ground Lease, but expressly requires that as a condition to the subordination of such Ground Lease to any such lien and mortgage, the mortgagee of such mortgage execute and deliver a nondisturbance agreement which contains an agreement by such mortgagee that upon foreclosure of any interest in the property of such Ground Lease, the lessee shall have the right to continue to use the leased premises in accordance with the terms of such Ground Lease and not be disturbed in its possession of the leased premises so long as lessee is not in default past any applicable notice and cure periods.
(c) The interest of the Borrower or any Subsidiary of the Borrower, as the case may be, in each Ground Lease is assignable to the Lender upon notice to, but without the consent of, the ground lessor thereof (or, if any such consent is required, such consent has been obtained). Each Ground Lease is further assignable by Lender, its successors and assigns without the consent of the ground lessor.
(d) Each Ground Lease is in full force and effect and no default exists under such Ground Lease and, to the actual knowledge of the Borrower, there is no existing condition which, but for the passage of time or the giving of notice, could result in a default under the terms of such Ground Lease.
(e) Each Ground Lease requires the ground lessor thereof to the applicable Subsidiary Guarantor of any give notice of any default by such the Borrower or any Subsidiary Guarantor of the Borrower, as the case may be, to Lender. Each Ground Lease, or estoppel letters received by Lender from the ground lessor thereof, further provides that notice of termination given under any Acceptable the Ground Lease and deliver to the Administrative Agent is not effective against Lender unless a true copy of each such the notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency of has been delivered to Lender in the landlord under any Acceptable manner described in the Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receiptLease.
(cf) Exercise any individual option to extend or renew The Lender is permitted the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail reasonable opportunity to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord default under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then which is curable after the receipt of notice of any of the default before the ground lessor thereunder may terminate such notice shall constitute full protection Ground Lease.
(g) Each Ground Lease created and entered into by the Borrower or its Subsidiaries after the date hereof requires the ground lessor thereof to enter into a new lease with the Lender upon termination of such Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceeding.
(h) No Ground Lease imposes any restrictions on subleasing except to the Administrative Agent for any action taken or omitted extent that such restrictions are not reasonably expected to be taken by the Administrative Agent, in good faith, in reliance thereonhave an Individual Property Material Adverse Effect.
Appears in 1 contract
Sources: Credit Agreement (Global Signal Inc)
Ground Leases. Solely with respect to Unencumbered PropertyExhibit M contains a list, each of the Parent which is correct and the Borrower shall, and shall cause each other Loan Party to:
(a) Diligently perform and observe complete in all material respects all as of the termsEffective Date, covenantsof all ground leases, including all amendments and modifications thereto, affecting the Properties (the “Ground Leases”). The copies of the Ground Leases delivered or made available to Purchaser are true, complete and correct in all material respects. No Property Owner has given or received a written notice of default alleging a material default that remains uncured as of the Effective Date under any of the Ground Leases. To WPG’s Knowledge, in all material respects (i) no Property Owner is in default under any of the Ground Leases, and conditions no event has occurred or failed to occur that gives any party the right to terminate the applicable Ground Lease or to cease performing its obligations thereunder, (ii) no party to a Ground Lease is in default thereunder, (iii) as of the Effective Date, no Seller Party has received written notice from any party to a Ground Lease of such party’s intention to cease performing its obligations under the applicable Ground Lease, (iv) except as set forth on Exhibit M, no lessor under a Ground Lease (and no fee mortgagee of any Acceptable Ground Lease as tenant under portion of the Property covered by such Acceptable Ground Lease; and
) has any right to consent to the Sale or either Parallel Sale, (v) the Sale and the Parallel Sales shall not result in, or cause, a default under any Ground Lease, or entitle the lessor thereunder to declare a default, or entitle the lessor thereunder to modify such Ground Lease, and (vi) the Ground Leases are valid, binding and enforceable in accordance with their terms and in full force and effect. With respect to those Ground Leases under which the Pearlridge Property Owner is the current lessee, (a) the current “Base Value” is equal to $205,321,863, (b) Promptly notify the Administrative Agent of to WPG’s Knowledge, there has been one (i1) the giving “Assignment” prior to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofdate hereof, and (iic) no “Assignment Premium” shall be due in connection with the Sale based on actions taken by any bankruptcyWPG Party, reorganizationany Partnership Entity, any Parallel Partnership Entity or insolvency any of their affiliates during the landlord under any Acceptable period in which Pearlridge Property Owner has been the lessee thereunder (as each such term in quotes is defined in the Master Ground Lease or of any notice thereofAdministration Agreement dated April 23, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt2004).
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereon.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Washington Prime Group Inc.)
Ground Leases. Solely with For purposes of this Exhibit C, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner. With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a Ground Leasehold estate in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of Mortgage Loan Seller, its successors and shall cause each other assigns (collectively, the “Ground Lease and Related Documents”), Mortgage Loan Party toSeller represents and warrants that:
(aA) Diligently perform and observe in all material respects all of the terms, covenants, and conditions of any Acceptable The Ground Lease as tenant under or a memorandum regarding such Acceptable Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) the giving to Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording Exh. C-14 in the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable jurisdiction. The Ground Lease and deliver to Related Documents permit the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency interest of the landlord under any Acceptable lessee to be encumbered by the related Mortgage and do not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of the Ground Lease had occurred since its recordation, except by any written instruments which are included in the related Mortgage File;
(B) The lessor under such Ground Lease has agreed in a writing included in the related Mortgage File (or in such Ground Lease and Related Documents) that the Ground Lease may not be amended, modified, canceled or terminated by agreement of any notice thereof, lessor and deliver to lessee without the Administrative Agent a true copy of such notice within five (5) Business Days prior written consent of the applicable Subsidiary Guarantor’s receipt.Mortgagee and that any such action without such consent is not binding on the Mortgagee, its successors or assigns, provided that the Mortgagee has provided lessor with notice of its lien in accordance with the terms of the Ground Lease;
(cC) Exercise any individual option to extend or renew the term of an Acceptable The Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either the Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
(D) The Ground Lease either (i) is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as Permitted Encumbrances and Title Exceptions; or (ii) is the subject of a subordination, non-disturbance or attornment agreement or similar agreement to which the Mortgagee on the lessor’s fee interest is subject;
(E) Subject to the notice requirements of the Ground Lease and Related Documents, the Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and the Ground Lease is assignable to the holder of the Mortgage Loan and its attorney-in-fact to exercise any successors and assigns without the consent of the lessor thereunder (or, if such option consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated and all amounts due thereunder have been paid), and in the name event it is so assigned, it is further assignable by the holder of the Mortgage Loan and upon behalf its successors and assigns without the consent of the lessor (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated and all amounts due thereunder have been paid);
(F) The Mortgage Loan Seller has not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease. To the Mortgage Loan Seller’s knowledge, which power there is no material default under such Ground Lease and no condition that, but for the passage of attorney shall be irrevocable time or giving of notice, would result in a material default under the terms of such Ground Lease and shall be deemed to be coupled with an interestthe Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date; Exh. If C-15
(G) The Ground Lease and Related Documents require the applicable Subsidiary Guarantor shall default in lessor to give to the performance or observance Mortgagee written notice of any termdefault, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the Administrative Agent shall have the right, but shall be under provides that 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 Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default or termination is effective against the Mortgagee unless such notice is given to the Mortgagee;
(H) A Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Acceptable the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the Mortgagee’s receipt of notice of any default before the lessor may terminate the Ground Lease;
(I) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by the Mortgage Loan Seller in connection with the origination of similar commercial or multifamily loans intended for securitization;
(J) Under the terms of the Ground Lease and Related Documents, then such notice shall constitute full protection any related insurance proceeds or the portion of the condemnation award allocable to the Administrative Agent ground lessee’s interest (other than in respect of a total or substantially total loss or taking as addressed in subpart (K)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan documents) the Mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;
(K) In the case of a total or substantially total taking or loss, under the terms of the Ground Lease and Related Documents, any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and
(L) Provided that the Mortgagee cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the Mortgagee upon termination of the Ground Lease for any action taken or omitted to be taken by reason, including rejection of the Administrative Agent, Ground Lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 1 contract
Sources: Mortgage Loan Purchase Agreement
Ground Leases. Solely with respect to Unencumbered Property, each of the Parent and the Borrower shall, and shall cause each other Loan Party to:
(a) Diligently perform and observe Borrower will cause each Individual Property Owner to comply in all material respects with the terms and conditions of the Ground Leases (including, but not limited to, the payment of all rent, additional rent, percentage rent and other charges required to be paid under the Ground Leases). Borrower will not permit or cause any Individual Property Owner to 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 Individual Property leased to such Individual Property Owner under any Ground Lease or will be grounds for declaring a forfeiture of any Ground Lease.
(b) Borrower shall cause each Individual Property Owner to enforce the Ground Leases and will not terminate, modify, cancel, change, supplement, alter or amend any of the Ground Leases (except in connection with a buyout (a “Ground Lease Buyout”) of the fee title held by any Ground Lessor where such fee contemporaneously becomes subject to the Lien of the related Mortgage), or waive, excuse, condone or in any way release or discharge any Ground Lessor of or from any of the material covenants and conditions to be performed or observed by the Ground Lessor under the applicable Ground Lease. Borrower hereby expressly covenants with Lender not to permit or cause any Individual Property Owner to cancel, surrender, amend, modify or alter in any way the terms of any Ground Lease. Borrower hereby agrees to cause each Individual Property Owner to assign to ▇▇▇▇▇ Fargo Mortgage Loan Lender, as further security for the payment of the Debt and for the performance and observance of the terms, covenants, covenants and conditions of any Acceptable Ground Lease the related Mortgages, all of the rights, privileges and prerogatives of such Individual Property Owner, as tenant under such Acceptable the Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) the giving Leases relating to the applicable Subsidiary Guarantor of any notice of any default ▇▇▇▇▇ Fargo Mortgage Loan Property, and not to surrender the leasehold estate created by such Subsidiary Guarantor under Ground Leases or terminate, cancel, modify, change, supplement, alter or amend such Ground Leases, and any Acceptable such surrender of the leasehold estate created by such Ground Leases or termination, cancellation, modification, change, supplement, alteration or amendment of such Ground Leases (except in connection with a Ground Lease Buyout) without the prior consent of Lender shall be void and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, no force and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipteffect.
(c) Exercise Borrower will cause each Individual Property Owner to give Lender prompt (and in all events within two (2) Business Days) notice of (i) any individual option written notice delivered by such Individual Property Owner alleging a default under any Ground Lease, (ii) the receipt by such Individual Property Owner of any written notice of default or alleging a default from any Ground Lessor or (iii) the occurrence of any event known to extend Borrower, Mezzanine 1 Borrower, Mortgage Loan Borrower or renew Maryland Owner that, with the term passage of time or service of notice, or both, would constitute a default by the Individual Property Owner or Ground Lessor. Borrower will cause each Individual Property Owner to promptly (and in all events within two (2) Business Days) furnish to Lender copies of all information furnished to any Ground Lessor in accordance with the terms of the Ground Leases or the provisions of this Section 5.26. Borrower will deposit, or will cause each Individual Property Owner to deposit with Lender an Acceptable exact copy of any written notice received or given by such Individual Property Owner in any way relating to or affecting any Ground Lease upon demand by which may concern or affect the Administrative Agent made estate of the related Ground Lessor or such Individual Property Owner thereunder in or under any Ground Lease or in the real estate thereby demised.
(d) Borrower hereby agrees to cause each Individual Property Owner to grant Lender the right, but not the obligation, to perform any obligations of such Individual Property Owner under the terms of any Ground Lease (subject to the prior rights of any CIGNA Mortgage Lender with respect to a CIGNA Mortgage Loan Ground Lease) during the existence of a Default (provided such Default is related to a Ground Lease) or Event of Default or at any time within thirty (30) days prior after Lender receives written notice that such Individual Property Owner has defaulted or is about to default under the last day upon which terms of any such option may be exercised, Ground Lease and each applicable Subsidiary Guarantor Borrower hereby agrees to cause such Individual Property Owner to expressly authorizes authorize and appoints the Administrative Agent as appoint Lender its attorney-in-fact to exercise perform, upon written notice to such Individual Property Owner, any obligations of such Individual Property Owner under the terms of any such option Ground Lease in the name of and upon behalf of such Subsidiary GuarantorIndividual Property Owner, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If All costs and expenses (including reasonable attorneys’ fees and expenses) so incurred by Lender, shall be treated as an advance secured by the applicable Subsidiary Guarantor Pledge Agreement, shall default bear interest thereon at the Default Rate from the date of payment by Lender until paid in the full and shall be paid by Borrower to Lender within five (5) days after demand. No performance or observance by Lender of any term, covenant, or condition obligations of Borrower shall constitute a waiver of any Acceptable Ground Lease on Event of Default arising by reason of Borrower’s failure to perform the part of such Subsidiary Guarantor and same. If Lender shall fail to cure the same prior to the expiration of make any applicable cure period provided thereunder, then the Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to payment or perform any act or take any action as may be appropriate to cause all in accordance with this Section 5.26, Lender will notify Borrower of the termsmaking of any such payment, covenantsthe performance of any such act, or the taking of any such action promptly after taking such action. In any such event, subject to the rights of Ground Lessors specifically reserved under the Ground Leases and the rights of lessees, sublessees and other occupants under any Leases, Lender and any person designated by Lender shall have, and conditions are hereby granted, the right to enter upon any Individual Property at any time and from time to time for the purpose of taking any such Acceptable action.
(e) To the extent permitted by law, Borrower agrees that the price payable by Borrower or any other person or entity in the exercise of any right of redemption following foreclosure of an Individual Property subject to a Ground Lease on shall include all rents paid and other sums advanced by Lender (together with interest thereon at the part of such Subsidiary Guarantor to be performed or observed Default Rate) as ground lessee under the Ground Leases, on behalf of such Subsidiary GuarantorBorrower on account of each applicable Individual Property.
(f) Unless Lender shall otherwise consent, Borrower shall cause each Individual Property Owner to exercise its rights under the end Ground Lease and applicable law to ensure that the rights of such Subsidiary Guarantor in, to, fee title and under such Acceptable the leasehold estate in each Individual Property subject to a Ground Lease shall not merge but shall always be kept unimpaired separate and free from default. If distinct, notwithstanding the landlord under any Acceptable union of said estates either in Ground Lessor or in a Borrower, or in a third party, by purchase or otherwise except in a Ground Lease Buyout in connection with which ▇▇▇▇▇ Fargo Individual Property Owner has delivered to ▇▇▇▇▇ Fargo Mortgage Loan Lender an amendment to the related Mortgage spreading the lien of the Mortgage over the fee interests and providing title insurance coverage related to the priority of the lien of the Mortgage over such interest.
(g) Intentionally omitted.
(h) Borrower hereby acknowledges and agrees that if any Ground Lessor shall deliver to the Administrative Agent Lender a copy of any notice of default sent by such Ground Lessor to Individual Property Owner, as tenant under a Ground Lease (or to Operating Lessee, as subtenant thereunder), Lender shall be entitled (but not obligated) to take or omit to take any action in reliance thereon (and without any duty of inquiry) and in response to such Acceptable notice.
(i) For any Ground Lease scheduled to mature earlier than fifteen (15) years from the date of this Agreement, Borrower shall cause the applicable Individual Property Owner to exercise each individual option, if any, to extend or renew the term of any Ground Lease promptly (and in all events before the expiration of any applicable deadline to extend under the Ground Lease if such applicable deadline to extend is prior to the latest Extended Maturity Date that may occur with respect to the Loan) 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 (subject to any right to do so in favor of a CIGNA Mortgage Lender in the case of a Ground Lease relating to a CIGNA Mortgage Loan Property) in the name of and upon behalf of such Individual Property Owner to so exercise such option if Borrower fails to exercise the same as herein required, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
(j) Borrower shall cause Mortgage Loan Borrower and Maryland Owner to cause each Lease of space at any Individual Property subject to a Ground Lease hereafter made and each renewal of any existing Lease (or any other Lease as may be required by the Ground Lease) to provide that, (i) in the event of the termination of the related Ground Lease, then the Lease shall not terminate or be terminable by the lessee; (ii) in the event of any action for the foreclosure of the related Mortgage, the Lease shall not terminate or be terminable by the subtenant 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 related Ground Lease is terminated as aforesaid, the lessee under the Lease shall attorn to the lessee under such Ground Lease or to the purchaser at the sale of the related Individual Property on such foreclosure, as the case may be.
(k) Borrower shall notify or cause the applicable Individual Property Owner to notify Lender promptly (and in any event within five (5) days) of any claim, suit, action or proceeding relating to the rejection of any Ground Lease. Lender is hereby irrevocably appointed as each Borrower’s attorney-in-fact, coupled with an interest, with the power to file and prosecute, to the exclusion of each Borrower during an Event of Default, any proofs of claim, complaints, motions, applications, notices and other documents, in any case (other than a CIGNA Mortgage Loan Ground Lease) in respect of the Ground Lessor under the Bankruptcy Code. A 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. The applicable Borrower shall promptly execute and deliver, or cause the applicable Individual Property Owner to promptly execute and deliver, to Lender any and all instruments reasonably required in connection with any such proceeding after reasonably timely request therefor by Lender. Except as set forth above, Borrower shall not, and shall not permit any Individual Property Owner to, adjust, compromise, settle or enter into any agreement with respect to such proceedings without the prior written consent of Lender, such consent not to be unreasonably withheld.
(l) Borrower shall not, and shall not permit any Individual Property Owner to, without Lender’s prior written consent, elect to treat any 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)(1) of the Bankruptcy Code, any Individual Property Owner seeks to offset against the rent reserved in any 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 related Ground Lease after the rejection by the Ground Lessor of such Ground Lease under the Bankruptcy Code, Borrower shall, and shall cause the applicable Individual Property Owner to, 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 or the applicable Individual Property Owner in accordance with the first sentence of this Section 5.26(m) (or such shorter period of time as may be necessary to timely assert such offset so long as the inability to afford Lender ten (10) days notice was not due to Borrower’s or the applicable Individual Property Owner’s delay), Borrower may proceed to permit such Individual Property Owner to effect such offset in the amounts set forth in such Borrower’s notice. Neither Lender’s failure to object as aforesaid nor any objection or other communication between Lender and a 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 reasonable attorneys’ fees and disbursements) arising from or relating to any such offset by a Borrower against the rent reserved in any Ground Lease.
(n) If, during the continuance of an Event of Default, any action, proceeding, motion or notice shall constitute full protection be commenced or filed in respect of an Individual Property that is subject to a Ground Lease (other than a CIGNA Mortgage Loan Ground Lease) in connection with any case under the Bankruptcy Code, Lender has the option, to the Administrative Agent for exclusion of an Individual Property Owner that is the lessee under such Ground Lease, exercisable upon notice from Lender to Borrower, to conduct and control any action taken such litigation with counsel of Lender’s choice. Lender may proceed in its own name or omitted in the name of the applicable Individual Property Owner in connection with any such litigation, and Borrower agrees to cause such Individual Property Owner 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 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 taken secured by the Administrative Agentlien of the Collateral, shall be added to the principal amount of the Debt and shall bear interest at the Default Interest Rate. Borrower shall not, and shall not permit or cause any Individual Property Owner to, commence any action, suit, proceeding or case, or file any application or make any motion, in good faithrespect of any Ground Lease in any such case under the Bankruptcy Code without the prior written consent of Lender.
(o) Borrower shall cause an Individual Property Owner that is the lessee under the related Ground Lease to promptly, after obtaining knowledge thereof, notify Lender of any filing by or against any Ground Lessor of a petition under the Bankruptcy Code. Such notice shall set forth any information available to such Individual Property Owner as to the date of such filing, the court in reliance thereonwhich such petition was filed, and the relief sought therein. Borrower shall cause an Individual Property Owner promptly deliver to Lender following receipt any and all notices, summonses, pleadings, applications and other documents received by such Individual Property Owner in connection with any such petition and any proceedings relating thereto.
(p) If there shall be filed by or against any Individual Property Owner a petition under the Bankruptcy Code, and such Individual Property Owner, as the tenant under any Ground Lease, shall determine to reject the Ground Lease to which it is a party pursuant to Section 365(a) of the Bankruptcy Code, then Borrower shall cause such Individual Property Owner to give Lender not less than ten (10) days’ prior notice of the date on which such Individual Property Owner shall apply to the bankruptcy court for authority to reject such Ground Lease(s). Lender has the right, but not the obligation, to serve upon such Borrower within such 10-day period a notice stat
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Ground Leases. Solely with respect to Unencumbered Property, each of the Parent and the Borrower shall, and shall cause each other Loan Party to:
(a) Diligently perform Each Ground Lease is in full force and observe effect in all material respects all accordance with the terms thereof, and has not been modified except as expressly set forth on Exhibit B hereto. Mortgagor has delivered to the Mortgagee a true, correct and comp▇▇▇▇ ▇▇▇▇ of each Ground Lease. To the best knowledge of the termsMortgagor, covenantsno material default exists, and conditions no event or act has occurred and no condition exists which with the passage of time or the giving of notice or both would constitute a material default, under any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and
(b) Promptly notify . The execution and delivery of this Mortgage by the Administrative Agent of Mortgagor (i) does not require the giving to consent or approval of the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor landlord under any Acceptable Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofLease, and (ii) will not violate or result in a default under any bankruptcy, reorganizationGround Lease.
(b) The Mortgagor shall at all times promptly and faithfully keep and perform, or insolvency cause to be kept and performed in all material respects, all the covenants and conditions contained in each Ground Lease by the lessee therein to be kept and performed and shall conform to and comply with the terms and conditions of each Ground Lease, and the landlord Mortgagor further covenants that it will not do or permit anything to be done, the doing of which, or refrain from doing anything, the omission of which, will impair the security of this Mortgage or will be reason for declaring a default under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receiptLease.
(c) Exercise The Mortgagor shall furnish to any individual option to extend or renew Agent, promptly upon such Agent's request, any and all information concerning the term of an Acceptable Ground Lease upon demand performance by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, 14 IN Mortgagor and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to of the Administrative Agent a copy covenants of any Ground Lease, including, without limitation, all notices of default.
(d) After the occurrence and during the continuance of an Event of Default, the Mortgagee may (but shall not be obligated to) take any such action as the Mortgagee deems necessary or desirable to cure, in whole or in part, any failure of compliance by the Mortgagor under any Ground Lease; and upon the receipt by the Mortgagee from the Mortgagor or the landlord under any Ground Lease of any written notice of default under such Acceptable Ground Leaseby the Mortgagor as the lessee thereunder, then the Mortgagee may rely thereon, and such notice shall constitute full authority and protection to the Administrative Agent Mortgagee for any action taken or omitted to be taken in good faith reliance thereon. All sums, including reasonable attorneys' fees, so expended by the Administrative Mortgagee to cure or prevent any such default, or expended to sustain the Lien of this Mortgage or its priority, shall be deemed secured by this Mortgage and shall become a portion of the Secured Obligations and shall be paid by the Mortgagor on demand, with interest accruing thereon at the Default Rate. Subject to the provisions set forth in the first sentence of this Subparagraph (d), the Mortgagor hereby expressly grants to the Mortgagee (subject to the terms of each Ground Lease), and agrees that the Mortgagee shall have, the absolute and immediate right to enter in and upon the Leased Land and the Improvements or any part thereof to such extent and as often as the Mortgagee, in its discretion, deems necessary or desirable in order to cure any default or alleged default by the Mortgagor under any Ground Lease.
(e) Upon the occurrence and during the continuance of any Event of Default, all lessee's options (including, without limitation, any right to exercise any purchase options), elections and approval rights, together with the right of termination, cancellation, modification, change, supplement, alteration or amendment of each Ground Lease, all of which have been assigned for collateral purposes to the Mortgagee, shall automatically vest exclusively in and be exercisable solely by the Mortgagee.
(f) So long as this Mortgage is in effect, there shall be no merger of any Ground Lease or any interest therein, or of the leasehold estate created thereby, with the fee estate in the Land or any portion thereof by reason of the fact that such Ground Lease or such interest therein may be held directly or indirectly by or for the account of any Person who shall hold the landlord's leasehold estate or fee estate in the Land or any portion thereof or any interest of the landlord under such Ground Lease. In case the Mortgagor acquires fee title to the Land or any portion thereof (pursuant to the exercise of a purchase option, or otherwise), this Mortgage shall attach to and cover and be a Lien upon the fee title or such other estate so acquired, and such fee title or other estate shall, without further assignment, mortgage or conveyance, become and be subject to the Lien of and covered by this Mortgage. The Mortgagor shall notify the Agents of any such acquisition and, on written request by the Agents, shall cause to be executed and recorded all such other and further assurances or other instruments in writing as may in the reasonable opinion of the Agents be necessary or appropriate to effect 15 IN the intent and meaning hereof and shall deliver to the Mortgagee an endorsement to the Mortgagee's loan title insurance policy insuring that such fee title or other estate is subject to the Lien of this Mortgage.
(g) If any action or proceeding shall be instituted to evict the Mortgagor or to recover possession of the Leased Land or any part thereof or interest therein, or any action or proceeding otherwise affecting any Ground Lease or this Mortgage shall be instituted, then the Mortgagor will, promptly, but no later than within seven (7) Business Days of service thereof on or to the Mortgagor, deliver to the Agents any notice of motion, order to show cause and of all other provisions, pleadings, and papers, however designated, served in any such action or proceeding.
(h) The Lien of this Mortgage shall attach to all of the Mortgagor's rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including, without limitation, all of the Mortgagor's rights to remain in possession of each leasehold parcel, provided, however, that the Mortgagee shall have no right to exercise such rights and remedies unless an Event of Default has occurred and is continuing. The Mortgagor shall, after obtaining knowledge thereof, promptly notify the Agents of any filing by or against the lessor or fee owner of any leasehold parcel of a petition under the Bankruptcy Code. At any Agent's request, the Mortgagor shall promptly deliver to such Agent, following receipt, copies of any and all notices, summonses, pleadings, applications and other documents received by the Mortgagor in good faithconnection with any such petition and any proceedings relating thereto.
(i) If there shall be filed by or against the Mortgagor a petition under the Bankruptcy Code, in reliance thereonthe Mortgagor, as lessee under any Ground Lease, shall not reject such Ground Lease pursuant to Section 365(a) of the Bankruptcy Code without the prior written consent of the Agents.
(j) Effective upon the entry of an order for relief with respect to the Mortgagor under the Bankruptcy Code, the Mortgagor hereby assigns and transfers to the Mortgagee a non-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 any Ground Lease may be rejected or assumed.
(k) No release or forbearance of any of the Mortgagor's obligations under any Ground Lease, pursuant to the terms thereof or otherwise, shall release the Mortgagor from any of its obligations under this Mortgage or the other Secured Obligations.
Appears in 1 contract
Sources: Mortgage, Collateral Assignment of Leases and Rents and Fixture Filing (Marsh Supermarkets Inc)
Ground Leases. Solely with With respect to Unencumbered any Purchased Asset where the underlying Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related underlying Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of Seller, its successors and shall cause each other Loan Party toassigns, Seller represents and warrants that:
(a) Diligently perform and observe (i) the Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction; (ii) the Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage and conditions (iii) no material change in the terms of any Acceptable the Ground Lease as tenant under such Acceptable Ground Lease; andhad occurred since its recordation, except by any written instrument which are included in the related Purchased Asset File;
(b) Promptly notify the Administrative Agent lessor under such Ground Lease has agreed in a writing included in the related Purchased Asset File (or in such Ground Lease) that the Ground Lease may not be amended or modified in any material respect, or canceled or terminated, without the prior written consent of the mezzanine lender (except termination or cancellation if (i) the giving to the applicable Subsidiary Guarantor of any notice of any a default by such Subsidiary Guarantor under any Acceptable the Ground Lease and deliver is provided to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, mezzanine lender and (ii) any bankruptcysuch default is curable by mezzanine lender as provided in the Ground Lease but remains uncured beyond the applicable cure period), reorganization, or insolvency and no such consent has been granted by Seller since the origination of the landlord under Purchased Asset except as reflected in any Acceptable Ground Lease or of any notice thereof, and deliver to written instruments which are included in the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.related Purchased Asset File;
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either the underlying Mortgagor or the mortgagee) that extends not less than 20 years beyond the stated maturity of the related Purchased Asset, or 10 years past the stated maturity if such Purchased Asset fully amortizes by the stated maturity (or with respect to a Purchased Asset that accrues on an actual 360 basis, substantially amortizes);
(d) the Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the underlying Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorney-in-fact Permitted Encumbrances, or (ii) is subject to exercise any such option a subordination, non‑disturbance and attornment agreement to which the mortgagee on the lessor’s fee interest in the name underlying Mortgaged Property is subject;
(e) the Ground Lease does not place commercially unreasonable restrictions on the identity of the mortgagee and upon behalf the Ground Lease is assignable to the holder of the Purchased Asset and its successors and assigns without the consent of the lessor thereunder, and in the event it is so assigned, it is further assignable by the holder of the Purchased Asset and its successors and assigns without the consent of the lessor;
(f) Seller has not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease and, to Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease and to Seller’s knowledge, such Ground Lease is in full force and effect;
(g) the Ground Lease or ancillary agreement between the lessor and the lessee requires the lessor to give to the lender written notice of any default, and provides that no notice of default or termination is effective against the lender unless such notice is given to the lender;
(h) a lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings) to cure any default under the Ground Lease which power is curable after the lender’s receipt of attorney shall notice of any default before the lessor may terminate the Ground Lease;
(i) the Ground Lease does not impose any restrictions on subletting that would be irrevocable viewed as commercially unreasonable by a prudent commercial mortgage lender;
(j) under the terms of the Ground Lease, an estoppel or other agreement received from the ground lessor and shall the related underlying Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in Paragraph (26)(k) below) will be deemed applied either to the repair or to restoration of all or part of the related underlying Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Purchased Asset Documents) the lender or a trustee appointed by it or the ground lessor having the right to hold and disburse such proceeds as repair or restoration progresses, or, to the payment of the outstanding principal balance of the underlying Mortgage Loan, together with any accrued interest, with excess, if any, applied to the Mezzanine Loan;
(k) in the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related underlying Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related underlying Mortgaged Property to the extent not applied to restoration, will be coupled applied first, pro rata, to the payment of the outstanding principal balance of the underlying Mortgage Loan and the Purchased Asset, together with an any accrued interest; and
(l) provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the lender upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a bankruptcy proceeding. If applicable, the applicable Subsidiary Guarantor shall ground lessor consented to and acknowledged that (i) the Mezzanine Loan is permitted / approved, (ii) any foreclosure of the Mezzanine Loan and related change in ownership of the ground lessee will not require the consent of the ground lessor or constitute a default under the ground lease, (iii) copies of default notices would be sent to mezzanine lender (or, in the performance or observance of any termalternative, covenant, or condition of any Acceptable Ground Lease on the part of mortgage lender has agreed to send such Subsidiary Guarantor and shall fail notice to cure the same prior mezzanine lender pursuant to the expiration of any applicable related intercreditor agreement) and (iv) it would accept cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed from mezzanine lender on behalf of the ground lessee (or, in the alternative, mortgage lender has agreed to tender such Subsidiary Guarantor, cure on behalf of mezzanine lender pursuant to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonrelated intercreditor agreement).
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (Colony NorthStar Credit Real Estate, Inc.)
Ground Leases. Solely with With respect to Unencumbered any Mortgage Loan where the Mortgage Loan is secured by a ground leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of the originator, its successors and shall cause each other Loan Party toassigns, Seller represents and warrants that:
(a) Diligently perform and observe The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; andits successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage;
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by The lessor under such Subsidiary Guarantor under any Acceptable Ground Lease has agreed in a writing included in the related Purchased Asset File (or in such Ground Lease) that the Ground Lease may not be amended, modified, or canceled or terminated by agreement of lessor and deliver to lessee without the Administrative Agent a true copy prior written consent of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofthe lender, and (ii) any bankruptcy, reorganization, or insolvency no such consent has been granted since the origination of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.Mortgage Loan;
(c) Exercise any individual option to extend or renew the term of an Acceptable The Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either the Borrower or the mortgagee) that extends not less than twenty (20) years beyond the stated maturity of the related Mortgage Loan, or ten (10) years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
(d) The Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances, or (ii) is subject to a subordination, non-in-fact disturbance and attornment agreement to exercise any such option which the mortgagee on the lessor’s fee interest in the name Mortgaged Property is subject;
(e) The Ground Lease does not place commercially unreasonable restrictions on the identity of the mortgagee and upon behalf the Ground Lease is assignable to the holder of the Mortgage Loan and its assigns without the consent of the lessor thereunder (or if such Subsidiary Guarantorconsent is necessary it has been obtained), which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any termevent it is so assigned, covenant, or condition of any Acceptable Ground Lease on it is further assignable by the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 holder of the terms, covenants, Mortgage Loan and conditions its successors and assigns without the consent of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under lessor;
(f) Seller has not received any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any written notice of default under or notice of termination of such Acceptable Ground Lease. To Seller’s knowledge, there is no default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a default under the terms of such Ground Lease and to. To Seller’s knowledge, such Ground Lease is in full force and effect as of the Purchase Date;
(g) The Ground Lease or ancillary agreement between the lessor and the lessee requires the lessor to give to the lender written notice of any default, and provides that no notice of default or termination is effective against lender unless such notice is given to the lender;
(h) A lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the lender’s receipt of notice of any default before the lessor may terminate the Ground Lease;
(i) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by a prudent institutional commercial mortgage lender in connection with loans similar to the Mortgage Loan intended for securitizations;
(j) Under the terms of the Ground Lease, then such notice shall constitute full protection an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the Administrative Agent ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in subpart (k)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Purchased Asset Documents) the lender or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;
(k) In the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and
(l) Provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with lender upon termination of the Ground Lease for any action taken or omitted to be taken by reason, including rejection of the Administrative Agent, Ground Lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 1 contract
Sources: Master Repurchase Agreement (FS Credit Real Estate Income Trust, Inc.)
Ground Leases. Solely (i) Borrower shall pay, promptly when due and payable (before the commencement of any "cure" or "grace" period), all Ground Rent. Upon notice from Agent, simultaneously with respect the making of each and every payment of Ground Rent payable after the delivery of such notice, Borrower shall simultaneously deliver to Unencumbered Property, each Agent a copy of the Parent and check in the Borrower shall, and shall cause each other Loan Party to:amount delivered to the payee.
(aii) Diligently Borrower shall perform and observe in (before the commencement of any "cure" or "grace" period) all material respects all of the terms, covenants, and conditions of any Acceptable Ground Lease as tenant that Borrower is required to perform and observe under such Acceptable Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver do everything necessary to preserve and to keep unimpaired and in full force and effect the Administrative Agent a true copy applicable Ground Lease. The Borrower shall not permit any Ground Lease to go into default (whether or not any cure period in the Ground Lease has expired).
(iii) Borrower shall enforce the obligations of the applicable lessor under each such notice within five Ground Lease so that Borrower may at all times enjoy all its rights, benefits and privileges under the applicable Ground Leases.
(5iv) Business Days The Borrower shall not, without Agent's consent, cause, agree to, permit, or suffer to occur any Ground Lease Impairment. Any Ground Lease Impairment made without Agent's consent shall be null, void, and of no force or effect. Any party entering into or purportedly obtaining the benefit of such Subsidiary Guarantor’s receipt thereofa purported Ground Lease Impairment is hereby placed on notice that Borrower has no power or authority to cause, and (ii) any bankruptcy, reorganizationconsent, or insolvency of the landlord agree to such Ground Lease impairment without Agent's consent.
(v) The Borrower shall not, without Agent's consent, refuse to consent or consent to any action that any Lessor under any Acceptable a Ground Lease or of any notice thereof, and deliver third party takes or desires to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipttake under or with respect to any Ground Lease.
(cvi) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney Borrower shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall promptly deliver to the Administrative Agent a copy of any notice of default or termination, or demand for performance (other than routine bills for current Ground Rent) that it receives from any lessor under a Ground Lease. The Borrower shall furnish to Agent all information that Agent may request from time to time concerning the Ground Leases and Borrower's compliance with the Ground Leases. Borrower, immediately upon learning that any lessor under a Ground Lease has failed to perform the terms and provisions under any Ground Lease (including by reason of a rejection or disaffirmance or purported rejection of disaffirmance of such Acceptable Ground Lease pursuant to any state or federal bankruptcy law), shall notify Agent thereof. Promptly after the Closing Date, and again promptly after execution of any amendment to the related leasehold REO Mortgage, Borrower shall notify the applicable Ground Lessor of the execution and delivery of the related leasehold REO Mortgage or such amendment. Such notice shall set forth, verbatim, in a form satisfactory to Agent, all provisions of the related leasehold REO Mortgage relating to Ground Lease Impairments. Agent shall have the right, but not the obligation, to give any lessor under a Ground Lease at any time any notice described in this paragraph or otherwise relating to the related leasehold REO Mortgage or the Loan.
(vii) The Borrower shall promptly notify agent of any request that any party to a Ground Lease makes for arbitration or other dispute resolution procedure pursuant to such Ground Lease and of the institution of any such arbitration or dispute resolution. The Borrower hereby authorizes Agent to participate in any such arbitration or dispute resolution. Such participation may, at Agent's option, be to the exclusion of, and in place of, the Borrower. The Borrower shall promptly deliver to Agent a copy of the determination of each such arbitration or dispute resolution mechanism.
(viii) If Agent or its designee shall acquire or obtain a New Ground Lease, then Borrower shall have no right, title or interest whatsoever in or to such notice New Ground Lease, or any proceeds or income arising from the estate arising under any such New Ground Lease, including from any sale or other disposition thereof. Agent or its designee shall constitute full protection to the Administrative Agent for hold such New Ground Lease free and clear of any action taken right or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonclaim of Borrower.
Appears in 1 contract
Ground Leases. Solely with With respect to Unencumbered any Purchased Asset where the Purchased Asset is secured by a ground leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, each based upon the terms of the Parent Ground Lease and any estoppel or other agreement received from the Borrower shallground lessor in favor of the originator, its successors and shall cause each other Loan Party toassigns, Seller represents and warrants that:
(a) Diligently perform and observe The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recording in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of any Acceptable the Ground Lease as tenant under such Acceptable Ground Lease; andhas occurred since its recordation, except by a written instrument which has been included in the Purchased Asset File.
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by The lessor under such Subsidiary Guarantor under any Acceptable Ground Lease has agreed in a writing included in the related Purchased Asset File (or in such Ground Lease) that the Ground Lease may not be amended, modified, cancelled or terminated by agreement of lessor and deliver to lessee without the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency prior written consent of the landlord under any Acceptable Ground Lease or of any notice thereof, lender and deliver to no such consent has been granted since the Administrative Agent a true copy of such notice within five (5) Business Days origination of the applicable Subsidiary Guarantor’s receiptPurchased Asset, except as reflected in any written instruments included in the related Purchased Asset File.
(c) Exercise any individual option to extend or renew the term of an Acceptable The Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either the Mortgagor or the mortgagee) that extends not less than twenty (20) years beyond the stated maturity of the related Purchased Asset or ten (10) years past the stated maturity if such Purchased Asset fully amortizes by the stated maturity (or with respect to a Purchased Asset that accrues on an actual 360 basis, substantially amortizes). 4918-1599-2897v.6 (d) The Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances and Title Exceptions, or (ii) is subject to a subordination, non-in-fact disturbance and attornment agreement to exercise any such option which the mortgagee on the lessor’s fee interest in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonMortgaged Property is subject.
Appears in 1 contract
Sources: Master Repurchase Agreement (Principal Credit Real Estate Income Trust)
Ground Leases. Solely with respect Except as disclosed on Schedule VII and except to Unencumbered Property, each the extent failure of the Parent and the Borrower shall, and shall cause each other Loan Party tosame to be true would not have a Material Adverse Effect:
(a) Diligently perform the lien of any mortgage now or hereafter placed on the fee title to the Premises is and observe will be subject and subordinate to the Ground Lease and to any New Lease (hereinafter defined); (b) if there shall be a condemnation or taking in all material respects all lieu of a condemnation of the fee title to the Premises, subject to amounts which are applied to restoration, Borrower or Maryland Owner is entitled under the Ground Lease to receive such portion of the Award for such condemnation or taking in lieu of condemnation as equals the value of Borrower’s or Maryland Owner’s estate under the Ground Lease and improvements made by Borrower or Maryland Owner and if there shall be a casualty under a Ground Lease, either there is an obligation to use insurance proceeds for a full restoration or Borrower or Maryland Owner is entitled to receive such portion of such proceeds as equals the value of improvements made by Borrower or Maryland Owner; (c) Borrower or Maryland Owner is authorized to assign its interest in any Award which Borrower or Maryland Owner is entitled to receive pursuant to the Ground Lease; (d) the Ground Lease may be assigned from time to time without the consent of Ground Lessor and upon an assignment of Borrower’s or Maryland Owner’s interest in the Ground Lease, the assignor may, by the terms of the assignment, be released from all obligations on the part of the ground lessee under the Ground Lease arising thereafter; (e) Borrower or Maryland Owner 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; (f) Borrower or Maryland Owner has the right to sublease or otherwise encumber, subject to matters disclosed pursuant to Schedule VII without restriction, all or any part of the applicable Individual Property without the consent of Ground Lessor; (h) if any default by Borrower or Maryland Owner shall occur under the Ground Lease, Lender is entitled under the Ground Lease to receive notice of such default from Ground Lessor and a commercially reasonable opportunity to cure any such default which is susceptible of cure by Lender, which, in the case of any non-monetary default susceptible of cure by Lender, includes the right of Lender or its designee to acquire possession of the affected Individual Property by means of foreclosure of the Mortgage or by other means and to become the lessee under the related Ground Lease, and so long as Lender has agreed to effectuate a cure and is proceeding to cure any such non-monetary default and no monetary default remains uncured beyond any applicable notice and grace periods to which Borrower or Maryland Owner and Lender are entitled, Ground Lessor may not terminate the related Ground Lease; (i) provided that no monetary default remains uncured beyond any applicable notice and grace periods to which Borrower or Maryland Owner and Lender are entitled, the Ground Lease may not be terminated by Ground Lessor by reason of any default by Borrower or Maryland Owner which is not susceptible of cure by Lender; (j) if the Ground Lease is terminated by reason of a default by Borrower or Maryland Owner, 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 conditions of any Acceptable Ground Lease agreements as tenant under such Acceptable are contained in the Ground Lease; and
(b) Promptly notify the Administrative Agent of (ik) the giving Ground Lease requires the Ground Lessor to give copies of all notices of default which are given under the applicable Subsidiary Guarantor of any notice of any default Ground Lease to Borrower or Maryland Owner contemporaneously to Lender; (l) each Ground Lease represents the entire agreement between the parties thereto and is in full force and effect and has not been modified or supplemented; (m) no Ground Lease can be canceled solely by such Subsidiary Guarantor under any Acceptable Ground Lessor and requires Borrower’s or Maryland Owner’s consent for all modifications, amendments or restatements thereof; (n) all rents (including additional rents and other charges) reserved for in each Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days payable prior to the last day upon date hereof have been paid; (o) no party to any 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; (p) no notice or other written or oral communication has been provided to any party under the Ground Lease which alleges that, as of the date hereof, either a default exists or with the passage of time will exist under the provisions of any such option may be exercised, Ground Lease; and (q) the Ground Lessor under each applicable Subsidiary Guarantor hereby expressly authorizes and appoints of the Administrative Agent as its attorney-in-fact to exercise any such option Ground Leases is the fee owner of the underlying fee interest in the name of related Individual Property and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable no Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent creates a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonsubleasehold interest.
Appears in 1 contract
Sources: Mortgage Loan Agreement (Ashford Hospitality Trust Inc)
Ground Leases. Solely with respect to Unencumbered Property, each of the Parent and the (a) Borrower shall, at its sole cost and shall cause each other Loan Party to:
(a) Diligently expense, promptly and timely perform and observe in all the material respects all of the terms, covenants, covenants and conditions of any Acceptable required to be performed and observed by Borrower as lessee under each Ground Lease as tenant (including, but not limited to, the payment of all rent, additional rent, percentage rent and other charges required to be paid under such Acceptable each Ground Lease; and).
(b) Promptly notify the Administrative Agent of (i) the giving If Borrower shall be in default under any Ground Lease, then, subject to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days terms of the applicable Subsidiary GuarantorGround Lease, Borrower shall grant Lender the right (but not the obligation), to cause the default or defaults under such Ground Lease to be remedied and otherwise exercise any and all rights of Borrower under the Ground Lease, as may be necessary to prevent or cure any default provided such actions are necessary to protect Lender’s receiptinterest under the Loan Documents, and Lender shall have the right to enter all or any portion of the related Ground Lease Property at such times and in such manner as Lender deems necessary, to prevent or to cure any such default.
(c) Exercise The actions or payments of Lender to cure any individual option to extend or renew the term of an Acceptable default by Borrower under each Ground Lease shall not remove or waive, as between Borrower and Lender, the default that occurred under this Agreement by virtue of the default by Borrower under any Ground Lease. All sums expended by Lender to cure any such default shall be paid by Borrower to Lender, upon demand, with interest on such sum at the rate set forth in this Agreement from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the related Security Instrument.
(d) Borrower shall notify Lender promptly in writing of the occurrence of any material default by Ground Lessor under any Ground Lease or the occurrence of any event that, with the passage of time or service of notice, or both, would constitute a material default by Ground Lessor under any Ground Lease, and the receipt by Borrower of any notice (written or otherwise) from Ground Lessor under any Ground Lease noting or claiming the occurrence of any default by Borrower under any Ground Lease or the occurrence of any event that, with the passage of time or service of notice, or both, would constitute a default by Borrower under any Ground Lease. Borrower shall promptly deliver to Lender a copy of any such written notice of default.
(e) Within twenty (20) days after receipt of written demand by Lender, but in no event more than two (2) times in any Fiscal Year (taking into account any similar request made by the Administrative Agent made at any time within thirty (30) days prior Mezzanine Lenders pursuant to the last day upon Mezzanine Loan Documents), Borrower shall use reasonable efforts to obtain from Ground Lessor under each Ground Lease and furnish to Lender the estoppel certificate of Ground Lessor stating the date through which rent has been paid and whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any; provided, that any such option estoppel shall, to the extent permitted under the applicable Ground Lease, be addressed to both Lender and the Mezzanine Lenders.
(f) Borrower shall promptly execute, acknowledge and deliver to Lender such instruments as may reasonably be exercised, required to permit Lender to cure any default under any Ground Lease or permit Lender to take such other action required to enable Lender to cure or remedy the matter in default and preserve the security interest of Lender under the Loan Documents with respect to each applicable Subsidiary Guarantor hereby expressly authorizes and Ground Lease Property. Borrower irrevocably appoints the Administrative Agent Lender as its true and lawful attorney-in-fact to exercise do, in its name or otherwise, any and all acts and to execute any and all documents that are necessary to preserve any rights of Borrower under or with respect to each Ground Lease, including, without limitation, the right to effectuate any extension or renewal of each Ground Lease, or to preserve any rights of Borrower whatsoever in respect of any part of each Ground Lease (and the above powers granted to Lender are coupled with an interest and shall be irrevocable).
(g) Notwithstanding anything to the contrary contained in this Agreement with respect to each Ground Lease:
(i) The Lien of the related Security Instrument attaches to all of Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the U.S. Bankruptcy Code, 11 U.S.C. Sections 101 et seq., including, without limitation, all of Borrower’s rights, as debtor, to remain in possession of the related Ground Lease Property.
(ii) Borrower shall not, without Lender’s written consent, elect to treat the Ground Lease as terminated under Subsection 365(h)(l) of the U.S. Bankruptcy Code. Any such option election made without Lender’s prior written consent shall be void.
(iii) As security for the Debt, Borrower unconditionally assigns, transfers and sets over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by the lessor under the Ground Lease under the U.S. Bankruptcy Code. Lender and Borrower shall proceed jointly or in the name of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of the Ground Lease, including, without limitation, the right to file and upon behalf prosecute any proofs of claim, complaints, motions, applications, notices and other documents in any case in respect of lessor under the U.S. Bankruptcy Code. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until all of the Debt shall have been satisfied and discharged in full. Any amounts received by Lender or Borrower as damages arising out of the rejection of the Ground Lease as aforesaid shall be applied (A) first, to all costs and expenses of Lender (including, without limitation, attorney’s fees and costs) incurred in connection with the exercise of any of its rights or remedies in accordance with the applicable provisions of this Agreement and (B) second, to payment of the Debt.
(iv) If, pursuant to subsection 365(h) of the Bankruptcy Code, Borrower seeks to offset, against the rent reserved in any Ground Lease, the amount of any damages caused by the nonperformance by the applicable Ground Lessor of any of its obligations thereunder after the rejection by such Ground Lessor of such Subsidiary GuarantorGround Lease under the U.S. Bankruptcy Code, which power then Borrower shall not effect any offset of attorney such amounts unless it shall be irrevocable have provided written notice to Lender of its intent to do so and Lender shall have consented thereto (provided that Lender shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and have consented thereto if it shall fail to cure object to the same prior in writing to Borrower within ten (10) Business Days after receipt of the aforesaid written notice from Borrower), in which case Borrower may proceed to offset the amounts set forth in Borrower’s notice.
(v) If any action, proceeding, motion or notice shall be commenced or filed in respect of any Ground Lessor of all or any part of the Ground Lease Property in connection with any case under the U.S. Bankruptcy Code, Lender and Borrower shall cooperatively conduct and control any such litigation with counsel agreed upon between Borrower and Lender in connection with such litigation. Borrower shall, upon demand, pay to Lender all costs and expenses (including reasonable attorneys’ fees and costs) actually paid or actually incurred by Lender in connection with the cooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be secured by the Lien of the related Security Instrument.
(vi) Borrower shall promptly, after obtaining knowledge of such filing notify Lender orally of any filing by or against the lessor under the Ground Lease of a petition under the U.S. Bankruptcy Code. Borrower shall thereafter promptly give written notice of such filing to Lender, setting forth any information available to Borrower as to the expiration date of such filing, the court in which such petition was filed, and the relief sought in such filing. Borrower shall promptly deliver to Lender any and all notices, summonses, pleadings, applications and other documents received by Borrower in connection with any such petition and any proceedings relating to such petition.
(vii) Borrower shall not consent to, acquiesce in or fail to object to any attempt by any fee owner of a Ground Lease Property of which Borrower has actual knowledge to sell, transfer or otherwise convey the fee estate of any Ground Lease Property free and clear of the applicable cure period provided thereunder, then Ground Lease under Section 363(f) of the Administrative Agent shall have Bankruptcy Code. Borrower acknowledges that the right, but shall be under no obligation, Lien of the related Security Instrument attaches to pay any sums and to perform any act or take any action as may be appropriate to cause all of Borrower’s rights and remedies, if any, at any time arising under or pursuant to Subsection 363(f) of the termsU.S. Bankruptcy Code to consent to any such sale, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed transfer or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonother assignment.
Appears in 1 contract
Sources: Loan Agreement (ESH Hospitality LLC)
Ground Leases. Solely with With respect to Unencumbered Propertyany Mezzanine Loan where the related Senior Interest or Whole Loan is secured by a leasehold estate under a Ground Lease in whole or in part, each of the Parent and the Borrower shallrelated Mortgage (for such Senior Interest or Whole Loan) does not also encumber the related lessor’s fee interest in such related Mortgaged Property (indirectly securing the Mezzanine Loan and securing the related Senior Interest or Whole Loan), based upon the terms of such Ground Lease, the related Senior Interest or Whole Loan, the Mezzanine Loan and shall cause each any estoppel or other Loan Party toagreement received from the ground lessor in favor of ▇▇▇▇▇▇, its successors and assigns:
(a) Diligently perform and observe Such Ground Lease or a memorandum or notice regarding such Ground Lease has been duly recorded or registered or submitted for recordation or registration in all material respects all a form that is acceptable for recording or registration in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of any Acceptable the Ground Lease as tenant under such Acceptable Ground Lease; andhas occurred since its recordation or registration, except by a written instrument which has been included in the Purchased Asset File.
(b) Promptly notify The lessor under such Ground Lease has agreed in a writing included in the Administrative Agent related Purchased Asset File (or in such Ground Lease) that such Ground Lease may not be amended or modified, or canceled or terminated by agreement of (i) lessor and lessee, without the giving to prior written consent of the applicable Subsidiary Guarantor of lender and that any such action without such consent is not binding on the lender, its successors or assigns, provided that lender has provided lessor with notice of any default by such Subsidiary Guarantor under any Acceptable its lien in accordance with the terms of the Ground Lease and deliver to no such consent has been granted since the Administrative Agent a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency origination of the landlord under Purchased Asset, except as reflected in any Acceptable Ground Lease or of any notice thereof, and deliver to written instruments included in the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receiptrelated Purchased Asset File.
(c) Exercise any individual option to extend or renew the term of an Acceptable Such Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either the underlying Mortgagor or the mortgagee) that extends not less than twenty (20) years beyond the stated maturity of the related Mezzanine Loan, or 10 years past the stated maturity if such Mezzanine Loan fully amortizes by the stated maturity (or with respect to a Mezzanine Loan that accrues on an actual 360 basis, substantially amortizes).
(d) Such Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances and Title Exceptions or (ii) is subject to a subordination, non-in-fact disturbance and attornment agreement to exercise any such option which the mortgagee on the lessor’s fee interest in the name Mortgaged Property is subject.
(e) Such Ground Lease is assignable to the holder of the related Purchased Asset and upon behalf its successors and assigns without the consent of the lessor thereunder provided that proper notice is delivered to the extent required in accordance with the Ground Lease (or if such consent is necessary, it has been obtained), and in the event it is so assigned, it is further assignable by the holder of the Purchased Asset and its successors and assigns without the consent of (but with proper notice to) the lessor.
(f) Seller has not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease. To Seller’s Knowledge, which power there is no material default under such Ground Lease and no condition that, but for the passage of attorney shall be irrevocable time or giving of notice, would result in a material default under the terms of such Ground Lease and shall be deemed to be coupled with an interest. If Seller’s Knowledge, such Ground Lease is in full force and effect.
(g) Such Ground Lease or ancillary agreement between the applicable Subsidiary Guarantor shall default in lessor and the performance or observance lessee requires the lessor to give to the lender written notice of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenantsdefault, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end provides that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any no notice of default or termination is effective against the lender unless such notice is given to the lender.
(h) A lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Acceptable Ground Lease through legal proceedings) to cure any default under such Ground Lease which is curable after the lender’s receipt of notice of any default before the lessor may terminate such Ground Lease.
(i) The Ground Lease does not impose any restrictions on subletting that would be viewed, in Seller’s reasonable judgment, as commercially unreasonable by a prudent commercial lender.
(j) Under the terms of such Ground Lease, then such notice shall constitute full protection an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the Administrative Agent ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in subpart (k) below) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mezzanine Loan Documents) the lender or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mezzanine Loan, together with any accrued interest.
(k) In the case of a total or substantially total taking or loss, under the terms of such Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the related Whole Loan or Senior Interest and then to the Mezzanine Loan, together with any accrued interest.
(l) Provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the lender upon early termination of such Ground Lease for any action taken or omitted to be taken by the Administrative Agentreason, including rejection of such Ground Lease in good faith, in reliance thereona bankruptcy proceeding.
Appears in 1 contract
Sources: Master Repurchase Agreement (Blackstone Private Real Estate Credit & Income Fund)
Ground Leases. Solely with respect Prior and as a condition precedent to Unencumbered the Close of Escrow for each Phase, the City, as lessor, and Developer, as lessee, shall agree, each in its sole and absolute discretion, upon the form and substance of a ground lease pursuant to which the City shall lease to Developer the applicable Property, and which as to the Phase I Property is referred to herein as the “Phase I Ground Lease” and as to the Phase II Property is referred to herein as the “Phase II Ground Lease”(the Phase I Ground Lease and Phase II Ground Lease collectively, the “Ground Leases”). The Ground Leases shall have a term not to exceed fifty-five (55) years and are anticipated to address and include the following terms and conditions for each of the Parent and the Borrower shall, and shall cause each other Loan Party toPhase:
(a) Diligently perform all Mortgages shall comply with the terms of Section 2.2.4;
(b) Developer shall be required to accept the Ground Leases and observe the Property on an “AS-IS, WHERE-IS AND WITH ALL FAULTS" basis upon the terms and conditions set forth in all material respects all Section 4.5.2;
(c) the Project will be subject to applicable development fees, including, but not limited to, those required by the City, or other jurisdictions such as the Foothill/Eastern Corridor Fee, the Santa ▇▇▇/Tustin Transportation System Improvement Area (TSIA) fee, school impact fees by the Tustin Unified School District (“TUSD”), current Orange County School Facility Bonds (Measure G and Measure L), and utility meter and connection fees; and may be subject to a future community facilities district for financing of school facilities to benefit TUSD pursuant to an agreement between the City and TUSD;
(d) the Ground Leases shall contain limitations on transfer and assignment of the termsrights of Developer, covenantsincluding the right of the City to approve in its sole discretion all assignments and transfers by Developer or interests in Developer except those transfers expressly enumerated in the Ground Lease and Transaction Documents as “Permitted Transfers”;
(e) the Ground Lease shall include an obligation of Developer to release, defend, indemnify and hold harmless the City with respect to any environmental remediation and liability regardless of cause (except for remediation and liability caused by the City’s willful misconduct or active negligence) and whether known or unknown as of the effective date of the Ground Lease;
(f) the Project shall be consistent with the Reuse Plan, the City’s General Plan, and conditions the Specific Plan unless otherwise specifically agreed by the City, at its sole discretion;
(g) the Ground Lease shall contain standard mortgagee protection provisions as reasonably approved by the City;
(h) subject to the rights of any Acceptable mortgagees, the Ground Lease as tenant under such Acceptable shall contain remedies and termination rights in favor of the City for breach of the Ground Lease;
(i) with respect to Phase I, any rental payment for the Phase I Ground Lease shall come from fifty percent (50%) of available net cash flow for Phase after the full repayment of the City Loan—in connection with such obligation the Parties shall establish in the Phase I Ground Lease a definition of “net cash flow” which shall be consistent with the terms of the financing plan submitted by Developer to the City prior to the Effective Date;
(j) with respect to Phase II, base rent under the Phase II Ground Lease shall be in the amount of One Million Five Hundred Thousand Dollars ($1,500,000), which shall be due at Close of Escrow for Phase II; and
(bk) Promptly notify in order to assure consistent management of the Administrative Agent Project as an affordable housing project in accordance with the terms of the Affordable Housing Covenants, each Ground Lease shall require that, unless otherwise agreed by then-current ground lessor and ground lessee, at the expiration of the full Ground Lease term (i) and provided the giving Ground Lease is not earlier terminated for any reason), ground lessor and ground lessee shall enter into a management agreement pursuant to which ground lessor shall retain ground lessee or its affiliate to manage the Units and Improvements on the applicable Parcel in compliance with the terms of the Affordable Housing Covenant for such Parcel, for the remaining term of such Affordable Housing Covenant and for which ground lessor shall, unless otherwise agreed by ground lessor and ground lessee, pay to such manager a management fee equal to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to “General Partner Asset Management Fee” shown on the Administrative Agent a true copy of each such notice within pro forma for year fifty-five (555) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under Ground Lease, escalated annually by three percent (3%) for each year of the term of the management agreement and a reasonable property management fee as determined by the Parties (i.e., commensurate with the fee for property management services in effect during the term of the Ground Lease). In no event shall ground lesser be obligated to make any Acceptable Ground Lease other payments to ground lessee or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days manager following termination of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereon.
Appears in 1 contract
Ground Leases. Solely with With respect to Unencumbered Property, each Ground Lease and except to the extent the effect of the Parent and the Borrower shall, and shall cause each other Loan Party tofollowing representations not being true is not reasonably likely to have a Material Adverse Effect:
(a) Diligently perform and observe in all material respects all Such Ground Lease contains the entire agreement of the termsGround Lessor and the applicable Asset Entity pertaining to the Ground Lease Site covered thereby. The applicable Asset Entity has no estate, covenantsright, title or interest in or to such Ground Lease Site except under and conditions pursuant to the Ground Lease. The Issuer shall have caused the Asset Entities to make available a true and correct copy of any Acceptable the Ground Lease as tenant under such Acceptable in effect on the Closing Date to Indenture Trustee and the Ground Lease; andLease has not been modified, amended or assigned except as set forth therein.
(b) Promptly notify the Administrative Agent of (i) the giving The applicable Asset Entity has obtained a Title Policy with respect to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Asset Entity’s leasehold interest in such Ground Lease and deliver to if the Administrative Agent related Tower Site is a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receiptMortgaged Site.
(c) Exercise any individual option There are no rights to extend or renew the term of an Acceptable terminate such Ground Lease upon demand by the Administrative Agent made at any time within thirty lessor other than the Ground Lessor’s right to terminate by reason of default, casualty, condemnation or other reasons, in each case as expressly set forth in such Ground Lease.
(30d) days prior to the last day upon which any such option may be exercisedSuch Ground Lease is in full force and effect, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable no Ground Lease Default exists on the part of such Subsidiary Guarantor and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the Administrative Agent shall have the right, but shall be under no obligationAsset Entity or, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the termssuch Asset Entity’s Knowledge, covenants, and conditions of such Acceptable Ground Lease on the part of the Ground Lessor under such Subsidiary Guarantor to be performed Ground Lease. The applicable Asset Entity has not received any written notice that a Ground Lease Default exists, or observed on behalf of such Subsidiary Guarantor, to the end that the rights Ground Lessor or any third party alleges the same to exist.
(e) The applicable Asset Entity is the exclusive owner of the lessee’s interest under and pursuant to such Subsidiary Guarantor Ground Lease and has not assigned, transferred, or encumbered its interest in, to, and or under such Acceptable Ground Lease shall be kept unimpaired and free from default. (other than assignments that will terminate on or prior to the Closing Date), except for Permitted Encumbrances.
(f) If the landlord under any Acceptable such Ground Lease shall deliver is in respect of a Mortgaged Site, such Ground Lease or a memorandum thereof or other instrument sufficient to permit recording of a deed of trust or similar security instrument has been recorded and such Ground Lease (or the Administrative Agent a copy applicable Estoppel) permits the interest of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted lessee to be taken encumbered by this Indenture.
(g) Except for the Administrative AgentPermitted Encumbrances, the Asset Entity’s interest in good faithsuch Ground Lease is not subject to any Liens superior to, in reliance thereonor of equal priority with, this Indenture unless a non-disturbance agreement has been obtained from the applicable holder of such Lien.
Appears in 1 contract
Sources: Indenture (American Tower Corp /Ma/)
Ground Leases. Solely with With respect to Unencumbered Propertyany Mezzanine Loan where the related Senior Interest or Whole Loan is secured by a leasehold estate under a Ground Lease in whole or in part, each of the Parent and the Borrower shallrelated Mortgage (for such Senior Interest or Whole Loan) does not also encumber the related lessor’s fee interest in such related Mortgaged Property (indirectly securing the Mezzanine Loan and securing the related Senior Interest or Whole Loan), based upon the terms of such Ground Lease, the related Senior Interest or Whole Loan, the Mezzanine Loan and shall cause each any estoppel or other Loan Party toagreement received from the ground lessor in favor of S▇▇▇▇▇, its successors and assigns:
(a) Diligently perform and observe Such Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in all material respects all a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the termslessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, covenants, and conditions its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of any Acceptable the Ground Lease as tenant under such Acceptable Ground Lease; andhas occurred since its recordation, except by a written instrument which has been included in the Purchased Asset File.
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by The lessor under such Subsidiary Guarantor under any Acceptable Ground Lease and deliver to has agreed in a writing included in the Administrative Agent a true copy of each related Purchased Asset File (or in such notice within five (5Ground Lease) Business Days of that such Subsidiary Guarantor’s receipt thereof, and (ii) any bankruptcy, reorganizationGround Lease may not be amended or modified, or insolvency canceled or terminated by agreement of lessor and lessee, without the prior written consent of the landlord under any Acceptable Ground Lease or of any notice thereof, lender and deliver to no such consent has been granted since the Administrative Agent a true copy of such notice within five (5) Business Days origination of the applicable Subsidiary Guarantor’s receiptPurchased Asset, except as reflected in any written instruments included in the related Purchased Asset File.
(c) Exercise any individual option to extend or renew the term of an Acceptable Such Ground Lease upon demand by the Administrative Agent made at any time within thirty has an original term (30) days prior to the last day upon which any such option or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes will be enforceable, by either the underlying Mortgagor or the mortgagee) that extends not less than twenty (20) years beyond the stated maturity of the related Mezzanine Loan.
(d) The Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and appoints the Administrative Agent as its attorneyPermitted Encumbrances and Title Exceptions, or (ii) is subject to a subordination, non-in-fact disturbance and attornment agreement to exercise any such option which the mortgagee on the lessor’s fee interest in the name Mortgaged Property is subject.
(e) Such Ground Lease does not place commercially unreasonable restrictions on the identity of the mortgagee and upon behalf the Ground Lease is assignable to the holder of the related Purchased Asset and its successors and assigns without the consent of the lessor thereunder provided that proper notice is delivered to the extent required in accordance with the Ground Lease (or if such consent is necessary, it has been obtained), and in the event it is so assigned, it is further assignable by the holder of the Purchased Asset and its successors and assigns without the consent of (but with proper notice to) the lessor.
(f) As of the Purchase Date, Seller has not received any written notice of material default under or notice of termination of such Subsidiary GuarantorGround Lease. To Seller’s Knowledge, as of the Purchase date, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease and to Seller’s Knowledge, such Ground Lease is in full force and effect as of the Purchase Date.
(g) Such Ground Lease or ancillary agreement between the lessor and the lessee requires the lessor to give to the lender written notice of any default, and provides that no notice of default or termination is effective against the lender unless such notice is given to the lender.
(h) A lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease through legal proceedings) to cure any default under such Ground Lease which power is curable after the lender’s receipt of attorney shall notice of any default before the lessor may terminate such Ground Lease.
(i) The Ground Lease does not impose any restrictions on subletting that would be irrevocable viewed as commercially unreasonable by a prudent commercial lender.
(j) Under the terms of such Ground Lease, an estoppel or other agreement received from the ground lessor and shall the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in subpart (k) below) will be deemed applied either to be coupled the repair or to restoration of all or part of the related Mortgaged Property with an interest. If (so long as such proceeds are in excess of the applicable Subsidiary Guarantor shall default threshold amount specified in the performance related Mezzanine Loan Documents) the lender or observance of any term, covenanta trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or condition to the payment of the outstanding principal balance of the Mezzanine Loan, together with any Acceptable accrued interest.
(k) In the case of a total or substantially total taking or loss, under the terms of such Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the related Whole Loan or Senior Interest and then to the Mezzanine Loan, together with any accrued interest.
(l) Provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the lender upon early termination of such Ground Lease on the part for any reason, including rejection of such Subsidiary Guarantor Ground Lease in a bankruptcy proceeding.
(m) If applicable, the ground lessor consented to and shall fail acknowledged that (i) the Mezzanine Loan is permitted / approved, (ii) any foreclosure of the Mezzanine Loan and related change in ownership of the ground lessee will not require the consent of the ground lessor or constitute a default under the ground lease, (iii) copies of default notices would be sent to cure mezzanine lender (or, in the same prior alternative, mortgage lender has agreed to send such notices to mezzanine lender pursuant to the expiration of any applicable related intercreditor agreement) and (iv) it would accept cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed from mezzanine lender on behalf of the ground lessee (or, in the alternative, mortgage lender has agreed to tender such Subsidiary Guarantor, cure on behalf of mezzanine lender pursuant to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonrelated intercreditor agreement).
Appears in 1 contract
Sources: Master Repurchase Agreement (FS Credit Real Estate Income Trust, Inc.)
Ground Leases. Solely with respect to Unencumbered Property, each of the Parent and the Borrower shall, and shall cause each other Loan Party to:
(a) Diligently perform The Buyer and observe in all material respects all the Seller acknowledge that the Properties identified on EXHIBIT A hereto as Ground Lease Properties consist of the termsSeller's interest as a lessee in the Ground Leases and the improvements thereon and that, covenantsas set forth on EXHIBIT L hereto, and conditions certain ground lessors under such Ground Leases have the right to object to a transfer of any Acceptable the Ground Leases and/or to acquire the Seller's interest in the Ground Lease as tenant under and the improvements thereon in the event of a proposed sale of such Acceptable Ground Lease; andinterests by the Seller. Between the date hereof and thirty (30) days after the date hereof, the Seller shall use commercially reasonable efforts to obtain consents and/or waivers of all such rights of first refusal.
(b) Promptly If, within such thirty (30) days, the Seller obtains the consents and/or waivers of rights of first refusal (such consents and/or waivers to be reasonably satisfactory to the Buyer) with respect to a particular Ground Lease, the Seller will give written notice to the Buyer that such Ground Lease will continue to constitute Property and will be included in the Properties transferred hereunder, subject to such Property being deemed a Deleted Property or a Deferred Property and subject to the other terms and conditions hereof.
(c) If, within such thirty (30) days, the Seller does not obtain the consents and/or waivers of rights of first refusal with respect to a particular Ground Lease Property and does not so notify the Administrative Agent of Buyer, (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease and deliver Property shall be deemed to the Administrative Agent be a true copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofCategory A Deleted Property, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Seller shall reimburse the Buyer for its actual out-of-pocket third party costs with respect to the diligence conducted on such Ground Lease or Property, plus the sum of any notice thereof, Ten Thousand Dollars ($10,000) for each such Ground Lease Property to cover legal and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receiptother costs.
(cd) Exercise any individual option to extend or renew The parties acknowledge and agree that if one of the term of an Acceptable two Ground Lease upon demand by Properties located in Tustin, California becomes a Deleted Property, the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent as its attorney-in-fact to exercise any such option in the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable other Ground Lease on the part of such Subsidiary Guarantor and Property so located shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, then the Administrative Agent shall have the right, but shall likewise 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 Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereonDeleted Property.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pacific Gulf Properties Inc)
Ground Leases. Solely with (A) With respect to Unencumbered Property, each Ground Lease encumbered by a Deed of the Parent and the Borrower shall, and shall cause each other Loan Party toTrust:
(a) Diligently perform and observe in all material respects all of the terms, covenants, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable The Ground Lease and deliver any easements appurtenant or related thereto contain the entire agreement of the Ground Lessor and the applicable Borrower pertaining to the Administrative Agent Ground Lease Site covered thereby. The Borrowers have no estate, right, title or interest in or to the Ground Lease Site except under and pursuant to the Ground Lease and any easements appurtenant or related thereto. The Borrowers have made available, delivered, or will deliver pursuant to Section 5.24(C), a true and correct copy of each such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereofthe Ground Lease to Lender and the Ground Lease has not been modified, amended or assigned except as set forth therein and in any Estoppel related thereto.
(ii) any bankruptcyThere are no rights to terminate the Ground Lease other than the Ground Lessor’s right to terminate by reason of default, reorganizationcasualty, condemnation or insolvency of other reasons, in each case as expressly set forth in the landlord under any Acceptable applicable Ground Lease or of any notice thereof, and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the as provided by applicable Subsidiary Guarantor’s receiptlaw.
(ciii) Exercise any individual option to extend or renew the term of an Acceptable The Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercisedis in full force and effect, and each applicable Subsidiary Guarantor hereby expressly authorizes and appoints no breach or default or event that with the Administrative Agent as its attorney-in-fact to exercise any such option in giving of notice or passage of time would constitute a breach or default under the name of and upon behalf of such Subsidiary Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease (a “Ground Lease Default”) exists on the part of such Subsidiary Guarantor and shall fail to cure the same prior Borrowers or, to the expiration of any applicable cure period provided thereunderBorrowers’ Knowledge, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantorthe Ground Lessor under the Ground Lease, except to the end extent such Ground Lease Default would not be reasonably likely to have a Material Adverse Effect. The Borrowers have not received any written notice that a Ground Lease Default exists, or that the rights Ground Lessor or any third party alleges the same to exist that would, in either case, be reasonably likely to have a Material Adverse Effect.
(iv) The applicable Borrower is the exclusive owner of such Subsidiary Guarantor the lessee’s interest under and pursuant to the applicable Ground Lease and has not assigned, transferred, or encumbered its interest in, to, and or under such Acceptable the Ground Lease shall be kept unimpaired (other than assignments that will terminate on or prior to Closing), except in favor of Lender pursuant to this Loan Agreement and free from default. If the landlord under any Acceptable other Loan Documents.
(v) The Ground Lease shall deliver or a memorandum thereof or other instrument sufficient to permit recording of a deed of trust or similar security instrument has been recorded and the Administrative Agent Ground Lease (or a copy separate agreement with respect thereto (the “Estoppel”)) permits the interest of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted lessee thereunder to be taken encumbered by the Administrative Agentrelated Deed of Trust.
(vi) Except for the Permitted Encumbrances, the applicable Borrower’s interests in good faiththe Ground Lease is not subject to any liens or encumbrances superior to, in reliance thereonor of equal priority with, the related Deed of Trust unless a non-disturbance agreement has been obtained from the applicable holder of such lien or encumbrance.
(vii) The Ground Lease does not impose restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender.
Appears in 1 contract
Sources: Loan and Security Agreement (Sba Communications Corp)
Ground Leases. Solely Borrower covenants, represents and warrants to Lender with respect to Unencumbered Propertythe Qualified Ground Leases, if any, as follows:
(a) Except as previously disclosed to Lender, no default has occurred and is continuing under the terms of any Qualified Ground Lease, and no event has occurred that, with the passage of time or service of notice, or both, would constitute an event of default under any Qualified Ground Lease.
(b) Each Qualified Ground Lease is in full force and effect.
(c) All rents, additional rents, percentage rents and all other charges due and payable under each Qualified Ground Lease have been fully paid. lx
(d) Subject to the Permitted Encumbrances, Megaplex Owner is the owner of the Parent entire lessee's interest in and under each Qualified Ground Lease and has the right and authority under each Qualified Ground Lease to execute this Agreement, the related Mortgage and other related Loan Documents, and to encumber Megaplex Owner's interest in the Qualified Ground Leases.
(e) Borrower shall, at its sole cost and expense, promptly and timely perform and observe, or cause Megaplex Owner or the applicable tenant under a Qualified Lease to promptly and timely perform and observe, all the material terms, covenants and conditions required to be performed and observed by Megaplex Owner as lessee under each Qualified Ground Lease (including the payment of all rent, additional rent, percentage rent and other charges required to be paid under such Qualified Ground Lease).
(f) If Borrower or Megaplex Owner shall violate any of the covenants specified above, then, subject to the applicable Qualified Ground Lease terms, Borrower and Megaplex Owner each grant Lender the right (but not the obligation) to cause the default or defaults under any Qualified Ground Lease to be remedied and otherwise exercise any and all rights of Borrower or Megaplex Owner under each Qualified Ground Lease, as may be necessary to prevent or cure any default, provided such actions are necessary to protect Lender's interest under this instrument, and Lender shall have the right subject to the terms of the Qualified Ground Lease to enter all or any portion of the Megaplex Property at such times and in such manner as Lender deems necessary, to prevent or to cure any such default.
(g) The actions or payments of Lender to cure any default by Borrower under any Qualified Ground Lease shall not remove or waive, as between any Obligor and Lender, the default that occurred under this Agreement by virtue of the default by Borrower or Megaplex Owner under any Qualified Ground Lease. All sums expended by Lender to cure any such default shall be paid by Borrower to Lender, upon demand, with interest on such sum at the rate set forth in the Note from the date such sum is expended to and including the date the reimbursement payment is made to the Lender. All such indebtedness shall be deemed to be secured by the Mortgages and other Loan Documents.
(h) Borrower shall notify Lender promptly in writing after any Obligor receives notice of the occurrence of any material default by the lessor under any Qualified Ground Lease or the occurrence of any event that, with the passage of time or service of notice, or both, would constitute a material default by the lessor under any Qualified Ground Lease, and the receipt by Borrower of any notice (written or otherwise) from the lessor under any Qualified Ground Lease noting or claiming the occurrence of any default by any Obligor under any Qualified Ground Lease or the occurrence of any event that, with the passage of time or service of notice, or both, would constitute a default by any Obligor under any Qualified Ground Lease. Borrower shall promptly deliver to Lender a copy of any such written notice of default.
(i) Within thirty (30) days after written demand by Lender, Borrower shall use reasonable efforts (other than payments to the lessor) to obtain from the lessor under lxi any Qualified Ground Lease and furnish to Lender the estoppel certificate of such lessor stating the date through which rent has been paid and whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any.
(j) Subject to the applicable Qualified Ground Lease terms, Borrower shall, and shall cause each other Loan Party Megaplex Owner to:
(a) Diligently perform and observe in all material respects all of the terms, covenantspromptly execute, and conditions of any Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and
(b) Promptly notify the Administrative Agent of (i) the giving to the applicable Subsidiary Guarantor of any notice of any default by such Subsidiary Guarantor under any Acceptable Ground Lease acknowledge and deliver to the Administrative Agent a true copy of each Lender such notice within five (5) Business Days of such Subsidiary Guarantor’s receipt thereof, and (ii) instruments as may reasonably be required to permit Lender to cure any bankruptcy, reorganization, or insolvency of the landlord default under any Acceptable Qualified Ground Lease or permit Lender to take such other action required to enable Lender to cure or remedy the matter in default and preserve the security interest of Lender under the Loan Documents with respect to any notice thereof, Property which is the subject of a Qualified Ground Lease. Borrower and deliver to the Administrative Agent a true copy of such notice within five (5) Business Days of the applicable Subsidiary Guarantor’s receipt.
(c) Exercise any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by the Administrative Agent made at any time within thirty (30) days prior to the last day upon which any such option may be exercised, and Megaplex Owner each applicable Subsidiary Guarantor hereby expressly authorizes and appoints the Administrative Agent irrevocably appoint Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, any and all acts and to execute any and all documents that are necessary to preserve any rights of Borrower or Megaplex Owner under or with respect to the Qualified Ground Leases, including the right to effectuate any extension or renewal of any Qualified Ground Lease, or to preserve any rights of Borrower whatsoever in respect of any part of any Qualified Ground Lease (and the above powers granted to Lender are coupled with an interest and shall be irrevocable).
(k) The generality of the provisions of this section relating to the Qualified Ground Leases shall not be limited by other provisions of this Agreement or the other Loan Documents setting forth particular obligations of any Obligor that are also required of Borrower with respect to the Qualified Ground Leases or the related Properties subject to such Qualified Ground Lease.
(l) Borrower shall not, and shall not permit Megaplex Owner to, without Lender's prior written consent, surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modify or amend in a material or adverse manner, any Qualified Ground Lease. Consent to one amendment, change, agreement or modification shall not be deemed to be a waiver of the right to require consent to other, future or successive amendments, changes, agreements or modifications. Any acquisition of any lessor's interest in any Qualified Ground Lease by Borrower or any affiliate of Borrower shall be accomplished by Borrower in such a manner so as to avoid a merger of the interests of lessor and lessee in such Qualified Ground Lease, unless consent to such merger is granted by Lender.
(m) Notwithstanding anything to the contrary contained in this Agreement with respect to the Qualified Ground Leases:
(i) The lien of the related Mortgage attaches to all of Megaplex Owner's rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, 11 U.S.C. Sections 101 et seq. (the "Bankruptcy Code"), including all of Megaplex Owner's rights, as debtor, to remain in possession of the related Property subject to such Qualified Ground Lease.
(ii) Neither Borrower nor Megaplex Owner shall, without Lender's written consent, elect to treat any Qualified Ground Lease as terminated under lxii 64 subsection 365(h)(1) of the Bankruptcy Code. Any such election made without Lender's prior written consent shall be void.
(iii) As security for the Loan, Borrower and Megaplex Owner unconditionally assign, transfer and set over to Lender all of Borrower's claims and rights to the payment of damages arising from any rejection by the lessor under any Qualified Ground Lease under the Bankruptcy Code. Lender and Borrower and Megaplex Owner shall proceed jointly or in the name of Borrower or Megaplex Owner in respect of any claim, suit, action or proceeding relating to the rejection of any Qualified Ground Lease, including the right to file and prosecute any proofs of claim, complaints, motions, applications, notices and other documents in any case in respect of lessor 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 all of the Loan and other obligations of Borrower to Lender under the Loan Documents shall have been satisfied and discharged in full. Any amounts received by Lender or Borrower or Megaplex Owner as damages arising out of the rejection of any Qualified Ground Lease as aforesaid shall be applied first to all costs and expenses of Lender (including attorneys' fees and costs) incurred in connection with the exercise of any of its rights or remedies under this Section 8.51 (m) and then in accordance with the other applicable provisions of this Agreement.
(iv) If, pursuant to subsection 365(h) of the Bankruptcy Code, Borrower or Megaplex Owner seeks to offset, against the rent reserved in any Qualified Ground Lease, the amount of any damages caused by the nonperformance by the lessor of any of its obligations thereunder after the rejection by lessor of any Qualified Ground Lease under the Bankruptcy Code, then Borrower or Megaplex Owner shall not effect any offset of the amounts so objected to by Lender. If Lender has failed to object as aforesaid within ten (10) days after notice from Borrower or Megaplex Owner in accordance with the first sentence of this subsection, Borrower or Megaplex Owner may proceed to offset the amounts set forth in such notice.
(v) If any action, proceeding, motion or notice shall be commenced or filed in respect of any lessor of all or any part of the leasehold property in connection with any case under the Bankruptcy Code, Lender, Borrower and Megaplex Owner shall cooperatively conduct and control any such litigation with counsel agreed upon between Borrower, Lender and Megaplex Owner in connection with such litigation. Borrower and Megaplex Owner shall, upon demand, pay to Lender all costs and expenses (including reasonable attorneys' fees and costs) actually paid or actually incurred by Lender in connection with the cooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be secured by the lien of the Mortgages and other Loan Documents. lxiii
(vi) Borrower and Megaplex Owner shall promptly, after obtaining knowledge of such filing notify Lender orally of any filing by or against any lessor under a Qualified Ground Lease of a petition under the Bankruptcy Code. Borrower and Megaplex Owner shall thereafter promptly give written notice of such filing to Lender, setting forth any information available to Borrower and Megaplex Owner as to the date of such filing, the court in which such petition was filed, and the relief sought in such filing. Borrower shall promptly deliver to Lender any and all notices, summonses, pleadings, applications and other documents received by Borrower in connection with any such petition and any proceedings relating to such petition.
(n) In addition to those events otherwise set forth in this Agreement, the occurrence of any of the following events shall, at Lender's option, constitute an Event of Default, as such term is defined in Section 10 hereof and, upon the occurrence of an Event of Default, Lender shall have all of the rights and remedies available to it under this Agreement and the other Loan Documents:
(i) A breach or default by Borrower under any condition or obligation contained in any Qualified Ground Lease that is not cured within any applicable cure period provided therein;
(ii) The occurrence of any event or condition that gives the lessor under any Qualified Ground Lease a right to terminate or cancel such Qualified Ground Lease unless cured by Borrower or Megaplex Owner (in case of nonpayment by a tenant under the applicable Qualified Lease); or
(iii) Borrower's or Megaplex Owner's failure to permit Lender and/or its representatives at all reasonable times upon reasonable prior written notice, but subject to the applicable Qualified Ground Lease and Qualified Lease respective terms, to make investigation or examination concerning Borrower's or Megaplex Owner's performance and observance of the terms, covenants and conditions of any Qualified Ground Lease.
(o) Borrower shall not, without Lender's written consent, fail to exercise or cause Megaplex Owner to exercise any option or right to renew or extend the term of any Qualified Ground Lease at least six (6) months prior to the date of termination of any such option or right, and shall give immediate written notice to Lender and shall execute, acknowledge, deliver and record any document requested by Lender to evidence the lien of the applicable Mortgage on such extended or renewed lease term; provided, however, Borrower shall not be required to exercise any particular such option or right to renew or extend to the extent Borrower shall have received the prior written consent of Lender (which consent may be withheld by Lender in its sole and absolute discretion) allowing Borrower to forego exercising such option or right to renew or extend. If Borrower shall fail to exercise or cause Megaplex Owner to exercise any such option or right as aforesaid, Lender may exercise the option or right as Megaplex Owner's and Borrower's agent and attorney-in-fact as provided above in Lender's own name or in the name of and upon lxiv 66 on behalf of such Subsidiary Guarantora nominee of Lender, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. If the applicable Subsidiary Guarantor shall default as Lender may determine in the performance or observance exercise of any termits sole and absolute discretion.
(p) Upon the request of Lender, covenant, or condition Borrower shall deposit with Lender a copy of any Acceptable each fully executed Qualified Ground Lease on certified by Borrower as true and correct, as further security to Lender, until all of the part obligations are fully paid and performed.
(q) Neither Borrower nor Megaplex Owner shall waive, excuse, condone or in any way release or discharge the lessor under any Qualified Ground Lease of or from such Subsidiary Guarantor and shall fail lessor's material obligations, covenant and/or conditions under such Qualified Ground Lease without the prior written consent of Lender.
(r) To the best of Borrower's knowledge, as of the Effective Date, there has been no event which would materially alter information contained in those ground lessor estoppels delivered by Borrower to cure Lender with respect to the same Qualified Ground Leases prior to the expiration of any applicable cure period provided thereunder, then the 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 terms, covenants, and conditions of such Acceptable Ground Lease on the part of such Subsidiary Guarantor to be performed or observed on behalf of such Subsidiary Guarantor, to the end that the rights of such Subsidiary Guarantor in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any Acceptable Ground Lease shall deliver to the Administrative Agent a copy of any notice of default under such Acceptable Ground Lease, then such notice shall constitute full protection to the Administrative Agent for any action taken or omitted to be taken by the Administrative Agent, in good faith, in reliance thereondate hereof.
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