Ground Leases. Shall (and Borrower shall cause such Loan Parties to), with respect to any ground lease related to any Borrowing Base Property or material easement agreements in favor of such Loan Party and related to any Borrowing Base Property (as applicable): (a) pay when due the rent and other amounts due and payable thereunder (subject to applicable cure or grace periods); (b) timely perform and observe all of the material terms, covenants and conditions required to be performed and observed by it as tenant thereunder (subject to applicable cure or grace periods); (c) do all things necessary to preserve and keep unimpaired such ground lease or easement agreement and its rights thereunder; (d) not waive, excuse or discharge any of the material obligations of the lessor or other obligor thereunder; (e) diligently and continuously enforce the material obligations of the lessor or other obligor thereunder; (f) not do, permit or suffer (i) any act, event or omission which would be likely to result in a default or permit the applicable lessor or other obligor to terminate or exercise any other remedy with respect to the applicable ground lease or easement or (ii) any act, event or omission which, with the giving of notice or the passage of time, or both, would constitute a default or permit the lessor or such other obligor to exercise any other remedy under the applicable agreement; (g) cancel, terminate, surrender, modify or amend any of the provisions of any such ground lease or easement or agree to any termination, amendment, modification or surrender thereof without the prior written consent of the Administrative Agent; (h) deliver to the Administrative Agent all default and other material notices received by it or sent by it under the applicable ground lease or easement agreement; (i) at Administrative Agent’s request, provide to Administrative Agent any information or materials relating to such ground lease or easement agreement and evidencing such Loan Party’s due observance and performance of its obligations thereunder; (j) not permit or consent to the subordination of such ground lease or easement agreement to any mortgage or other leasehold interest of the premises related thereto; (k) execute and deliver (to the extent permitted to do so under such ground lease or easement agreement), upon the request of the Administrative Agent, any documents, instruments or agreements as may be required to permit the Administrative Agent to cure any default under such ground lease or easement agreement; (l) provide to Administrative Agent written notice of its intention to exercise any option or renewal or extension rights with respect to such ground lease or easement at least thirty (30) days prior to the expiration of the time to exercise such right or option and, upon the direction of the Administrative Agent, duly exercise any renewal or extension option with respect to any such ground lease or easement (provided, that Borrower and each Loan Party hereby appoints the Administrative Agent its attorney-in-fact, coupled with an interest, to execute and deliver, for and in the name of such Person, all instruments, documents or agreements necessary to extend or renew any such ground lease or easement; (m) not treat, in connection with the bankruptcy or other insolvency proceedings of any ground lessor or other obligor, any ground lease or easement agreement as terminated, cancelled or surrendered pursuant to the Bankruptcy Code without the Administrative Agent’s prior written consent; (n) 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 or easement agreement within the applicable time period therefore in such proceedings, notwithstanding any rejection by such ground lessor or obligor or trustee, custodian or receiver related thereto; (o) provide to the Administrative Agent not less than thirty (30) days prior written notice of the date on which the applicable Loan Party shall apply to any court or other governmental authority for authority or permission to reject the applicable ground lease or easement agreement in the event that there shall be filed by or against any Loan Party any petition, action or proceeding under the Bankruptcy Code or any similar federal or state law; provided, that the Administrative Agent shall have the right, but not the obligation, to serve upon the applicable Loan Party within such thirty (30) day period a notice stating that (i) the Administrative Agent demands that such Loan Party assume and the assign the relevant ground lease or easement agreement to the Administrative Agent subject to an in accordance with the Bankruptcy Code and (ii) the Administrative Agent covenants to cure or provide reasonably adequate assurance thereof with respect to all defaults susceptible of being cured by the Administrative Agent and of future performance under the applicable ground lease or easement agreement; provided, further, that if the Administrative Agent serves such notice upon the applicable Loan Party, such Loan Party shall not seek to reject the applicable agreement and shall promptly comply with such demand; (p) permit the Administrative Agent (at its option), during the continuance of any Event of Default, to (i) perform and comply with all obligations under the applicable ground lease or easement agreement; (ii) do and take such action as the Administrative Agent deems necessary or desirable to prevent or cure any default by such Loan Party under such ground lease or easement agreement and (iii) enter in and upon the applicable premises related to such ground lease or easement agreement to the extent and as often as the Administrative Agent deems necessary or desirable in order to prevent or cure any default under the applicable ground lease or easement agreement; (q) in the event of any arbitration, court or other adjudicative proceedings under or with respect to any such ground lease or easement agreement, permit the Administrative Agent (at its option) to exercise all right, title and interest of the applicable Loan Party in connection with such proceedings; provided, that (i) Borrower and each other Loan Party hereby irrevocably appoint the Administrative Agent as their attorney-in-fact (which appointment shall be deemed coupled with an interest) to exercise such right, interest and title and (ii) the Loan Parties shall bear all costs, fees and expenses related to such proceedings; provided, further, that each Loan Party hereby further agrees that the Administrative Agent shall have the right, but not the obligation, to proceed in respect of any claim, suit, action or proceeding relating to the rejection of any of the ground leases or easement agreements referenced above by the relevant ground lessor or obligor as a result of bankruptcy or similar proceedings (including, without limitation, the right to file and prosecute all proofs of claims, complaints, notices and other documents in any such bankruptcy case or similar proceeding); and (r) deliver to the Administrative Agent (or, subject to the requirements of the subject ground lease, cause the applicable lessor or other obligor to deliver to the Administrative Agent) an estoppel certificate in relation to such ground lease or easement agreement in form and substance acceptable to the Administrative Agent, in its discretion, and, in any case, setting forth (i) the name of lessee and lessor under the ground lease (if applicable); (ii) that such ground lease or easement agreement is in full force and effect and has not been modified except to the extent Administrative Agent has received notice of such modification; (iii) that no rental and other payments due thereunder are delinquent as of the date of such estoppel; and (iv) whether such Person knows of any actual or alleged defaults or events of default under the applicable ground lease or easement agreement; provided, that each Loan Party hereby agrees to execute and deliver to Administrative Agent, within ten (10) days of any request therefor, such documents, instruments, agreements, assignments or other conveyances reasonably requested by the Administrative Agent in connection with or in furtherance of any of the provisions set forth above or the rights granted to the Administrative Agent in connection therewith.
Appears in 8 contracts
Samples: Credit Agreement (Ryman Hospitality Properties, Inc.), Amendment No. 1 and Joinder Agreement (Ryman Hospitality Properties, Inc.), Credit Agreement (Ryman Hospitality Properties, Inc.)
Ground Leases. Shall (The Borrower and Borrower shall cause such Loan Parties to)each Subsidiary shall, with respect to each Real Estate Asset subject to a Ground Lease:
(a) (i) Make all payments and otherwise perform in all material respects all obligations in respect of each such Ground Lease and keep each such Ground Lease in full force and effect and not allow any ground lease such Ground Lease to lapse or be terminated or any rights to renew any such Ground Lease to be forfeited or cancelled, (ii) notify the Administrative Agent of any written notice of default received by the applicable Credit Party or Subsidiary thereof with respect to any such Ground Lease and (iii) cooperate with the Administrative Agent in all respects to cure any such default, except, in any case, where the failure to do so could not be reasonably likely to have a Material Adverse Effect.
(b) Without limiting the foregoing, with respect to each Ground Lease related to any Borrowing Base Property or material easement agreements in favor of such Loan Party Real Estate Asset, the Credit Parties shall, and related to any Borrowing Base Property (as applicable):shall cause their Subsidiaries to:
(ai) pay when due the rent and other amounts due and payable thereunder (subject to applicable cure or grace periods);
(bii) timely perform (in all material respects) and observe all of the material terms, covenants and conditions required to be performed and observed by it as tenant thereunder (subject to applicable cure or grace periods);
(ciii) do all things necessary to preserve and keep unimpaired such ground lease or easement agreement Ground Lease and its material rights thereunder;
(div) not waive, excuse or discharge any of the material obligations of the ground lessor or other obligor thereunder;
(ev) diligently and continuously enforce the material obligations of the ground lessor or other obligor thereunder;
(fvi) without duplication of clause (i) and (ii) above, not do, permit or suffer (i) any act, event or omission beyond applicable notice and/or cure periods which would be likely to result in a default or permit the applicable ground lessor or other obligor to terminate or exercise any other material remedy with respect to the applicable ground lease or easement or (ii) any act, event or omission which, with the giving of notice or the passage of time, or both, would constitute a default or permit the lessor or such other obligor to exercise any other remedy under the applicable agreementGround Lease;
(gvii) not cancel, terminate, surrender, or materially modify or amend any of the provisions of any such ground lease or easement Ground Lease or agree to any termination, material amendment, or material modification thereof if the effect of such cancellation, termination, surrender, modification, amendment or surrender thereof agreement is to (A) materially shorten the term of such Ground Lease, (B) materially increase the rent payable under such Ground Lease, (C) materially increase the purchase price under any purchase option concerning the property included in and subject to such Ground Lease, (D) materially modify the gross or net leasable area subject to such Ground Lease, (E) materially transfer to the ground lessee any costs and/or expenses previously paid by the ground lessor under such Ground Lease, (F) terminate (or grant the ground lessor additional rights to unilaterally terminate) such Ground Lease, or (G) subordinate the rights of the applicable Credit Party or Subsidiary under such Ground Lease to any property manager or any other Person, in each case without the prior written consent of the Administrative AgentAgent (which shall not be unreasonably withheld or delayed);
(hviii) deliver to the Administrative Agent all written default and other material written notices received by it or sent by it under the applicable ground lease or easement agreementGround Lease;
(iix) at upon the Administrative Agent’s requestreasonable written request (but, so long as no Event of Default has occurred and is continuing, not more than one (1) time in any twelve month period), provide to the Administrative Agent any information or materials relating to such ground lease or easement agreement Ground Lease and evidencing such Loan Credit Party’s or such Subsidiary’s due observance and performance of its material obligations thereunder;
(jx) not permit or consent to the subordination of such ground lease or easement agreement Ground Lease to any mortgage or other leasehold interest of the premises related thereto;
(kxi) execute and deliver (to the extent permitted to do so under such ground lease or easement agreementGround Lease), upon the reasonable written request of the Administrative Agent, any documents, instruments or agreements as may be required to permit the Administrative Agent to cure any default under such ground lease or easement agreementGround Lease;
(lxii) provide to the Administrative Agent written notice of its intention to exercise any option or of renewal or extension rights with respect to such ground lease or easement Ground Lease at least thirty (30) days prior to the expiration of the time to exercise such right or option and, upon the direction of (or such later date as agreed to by the Administrative Agent, Agent in its sole discretion) and duly exercise any renewal or extension option with respect to any such ground lease Ground Lease (either consistent with such notice or easement (provided, upon the direction of the Administrative Agent) if the failure to so renew or extend would result in the subject Ground Lease having a term less than three years after the Revolving Commitment Termination Date; provided that Borrower and each Loan Credit Party further hereby appoints the Administrative Agent and/or the Collateral Agent its attorney-in-fact, coupled with an interest, to execute and deliver, for and in the name of such Person, all instruments, documents or agreements necessary to extend or renew any such ground lease or easementGround Lease;
(mxiii) not treat, in connection with the bankruptcy or other insolvency proceedings of any ground lessor or other obligor, any ground lease or easement agreement Ground Lease as terminated, cancelled or surrendered pursuant to the Bankruptcy Code without the Administrative Agent’s prior written consent;
(nxiv) 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 or easement agreement Ground Lease as against the applicable Credit Party within the applicable time period therefore therefor in such proceedings, notwithstanding any rejection by such ground lessor or obligor or trustee, custodian or receiver related thereto;
(oxv) provide to the Administrative Agent not less than thirty (30) days prior written notice (or such later date as agreed to by the Administrative Agent in its sole discretion) of the date on which the applicable Loan Credit Party or Subsidiary shall apply to any court or other governmental authority for authority or permission to reject the applicable ground lease or easement agreement Ground Lease in the event that there shall be filed by or against any Loan Credit Party or any Subsidiary thereof any petition, action or proceeding under the Bankruptcy Code or any similar federal or state law; provided, provided that the Administrative Agent shall have the right, but not the obligation, to serve upon the applicable Loan Credit Party or Subsidiary within such thirty (30) day period a notice stating that (iA) the Administrative Agent demands that such Loan Credit Party or Subsidiary assume and the assign the relevant ground lease or easement agreement Ground Lease to the Administrative Agent subject to an and in accordance with the Bankruptcy Code and (iiB) the Administrative Agent covenants to cure or provide reasonably adequate assurance thereof with respect to all defaults susceptible of being cured by the Administrative Agent and of future performance under the applicable ground lease or easement agreementGround Lease; provided, further, that if the Administrative Agent serves such notice upon the applicable Loan PartyCredit Party or Subsidiary thereof, such Loan Credit Party or Subsidiary shall not seek to reject the applicable agreement and shall promptly comply with such demand;
(pxvi) permit the Administrative Agent (at its option), during the continuance of any Event of Default, to (i) perform and comply with all obligations under the applicable ground lease or easement agreementGround Lease; (ii) do and take such action as the Administrative Agent deems necessary or desirable to prevent or cure any default by such Loan Credit Party or Subsidiary under such ground lease or easement agreement Ground Lease and (iii) enter in and upon the applicable premises related to such ground lease or easement agreement Ground Lease to the extent and as often as the Administrative Agent deems necessary or desirable in order to prevent or cure any default under the applicable ground lease or easement agreementGround Lease;
(qxvii) during the continuance of an Event of Default, in the event of any arbitration, court or other adjudicative proceedings under or with respect to any such ground lease or easement agreementGround Lease, permit the Administrative Agent (at its option) to exercise all right, title and interest of the applicable Loan Credit Party or Subsidiary in connection with such proceedings; provided, provided that (i) Borrower and each other Loan Credit Party hereby or Subsidiary thereby irrevocably appoint appoints the Administrative Agent as their its attorney-in-fact (which appointment shall be deemed coupled with an interest) to exercise such right, interest and title and (ii) the Loan Parties Borrower and each of its other Subsidiaries shall bear all costs, fees and expenses related to such proceedings; provided, further, that each Loan Credit Party and each of its Subsidiaries hereby further agrees that the Administrative Agent shall have the right, but not the obligation, to proceed in respect of any claim, suit, action or proceeding relating to the rejection of any of the ground leases or easement agreements Ground Leases referenced above by the relevant ground lessor or obligor as a result of bankruptcy or similar proceedings (including, without limitation, the right to file and prosecute all proofs of claims, complaints, notices and other documents in any such bankruptcy case or similar proceeding); and
(rxviii) use commercially reasonable efforts to deliver to the Administrative Agent (orand, subject if it has the ability pursuant to the requirements of the subject ground leaseGround Lease, cause the applicable ground lessor or other obligor under such Ground Lease to deliver to the Administrative Agent) upon written request of the Administrative Agent (but, so long as no Event of Default has occurred and is continuing, not more than one (1) time in any twelve month period) an estoppel certificate from the ground lessor in relation to such ground lease Ground Lease in (x) the form required by such Ground Lease or easement agreement (y) otherwise in form and substance acceptable to the Administrative Agent, in its reasonable discretion, and, in any casethe case of clause (y), setting forth (iA) the name of lessee and lessor under the ground lease (if applicable)Ground Lease; (iiB) that such ground lease or easement agreement Ground Lease is in full force and effect and has not been modified except to the extent the Administrative Agent has received notice of such modification; (iiiC) that no rental and other payments due thereunder are delinquent as of the date of such estoppel; and (ivD) whether such Person knows of any actual or alleged defaults or events of default under the applicable ground lease or easement agreementGround Lease as of the date of such estoppel; provided, provided that (x) each Loan applicable Credit Party hereby agrees to execute and deliver to Administrative Agent, within ten (10) days Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) of any written request therefor, such documents, instruments, agreements, assignments or other conveyances reasonably requested by the Administrative Agent in connection with or in furtherance of any of the provisions set forth above or the rights granted to the Administrative Agent in connection therewiththerewith and (y) in each instance in this Section 7.18 where “Administrative Agent” is used, either the Administrative Agent or the Collateral Agent may act to exercise the rights and abilities provided in this Section 7.18.
(c) For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.18, the foregoing shall not restrict the Borrower’s or any Delayed Consent Credit Party’s seeking of (i) any necessary consents with respect to any Delayed Consent Property or (ii) any amendment, waiver or other modification to any lease or other agreement to the extent not materially adverse to the Lenders with respect to any Delayed Consent Property).
Appears in 2 contracts
Samples: Credit Agreement (Sun Communities Inc), Credit Agreement (Sun Communities Inc)
Ground Leases. Shall (and Borrower shall cause such Loan Parties to), with respect to any ground lease related to any Borrowing Base Property or material easement agreements in favor of such Loan Party and related to any Borrowing Base Property (as applicable):
(a) pay when due the rent and other amounts due and payable thereunder (subject to applicable cure or grace periods);
(b) timely perform and observe all of the material terms, covenants and conditions required to be performed and observed by it as tenant thereunder (subject to applicable cure or grace periods);
(c) do all things necessary to preserve and keep unimpaired such ground lease or easement agreement and its rights thereunder;
(d) not waive, excuse or discharge any of the material obligations of the lessor or other obligor thereunder;
(e) diligently and continuously enforce the material obligations of the lessor or other obligor thereunder;
(f) not do, permit or suffer (i) any act, event or omission which would be likely to result in a default or permit the applicable lessor or other obligor to terminate or exercise any other remedy with respect to the applicable ground lease or easement or (ii) any act, event or omission which, with the giving of notice or the passage of time, or both, would constitute a default or permit the lessor or such other obligor to exercise any other remedy under the applicable agreement;
(g) cancel, terminate, surrender, modify or amend any of the provisions of any such ground lease or easement or agree to any termination, amendment, modification or surrender thereof without the prior written consent of the Administrative Agent;
(h) deliver to the Administrative Agent all default and other material notices received by it or sent by it under the applicable ground lease or easement agreement;
(i) at Administrative Agent’s request, provide to Administrative Agent any information or materials relating to such ground lease or easement agreement and evidencing such Loan Party’s due observance and performance of its obligations thereunder;
(j) not permit or consent to the subordination of such ground lease or easement agreement to any mortgage or other leasehold interest of the premises related thereto;
(k) execute and deliver (to the extent permitted to do so under such ground lease or easement agreement), upon the request of the Administrative Agent, any documents, instruments or agreements as may be required to permit the Administrative Agent to cure any default under such ground lease or easement agreement;
(l) provide to Administrative Agent written notice of its intention to exercise any option or renewal or extension rights with respect to such ground lease or easement at least thirty (30) days prior to the expiration of the time to exercise such right or option and, upon the direction of the Administrative Agent, duly exercise any renewal or extension option with respect to any such ground lease or easement (provided, that Borrower and each Loan Party hereby appoints the Administrative Agent its attorney-in-fact, coupled with an interest, to execute and deliver, for and in the name of such Person, all instruments, documents or agreements necessary to extend or renew any such ground lease or easement);
(m) not treat, in connection with the bankruptcy or other insolvency proceedings of any ground lessor or other obligor, any ground lease or easement agreement as terminated, cancelled or surrendered pursuant to the Bankruptcy Code without the Administrative Agent’s prior written consent;
(n) 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 or easement agreement within the applicable time period therefore in such proceedings, notwithstanding any rejection by such ground lessor or obligor or trustee, custodian or receiver related thereto;
(o) provide to the Administrative Agent not less than thirty (30) days prior written notice of the date on which the applicable Loan Party shall apply to any court or other governmental authority for authority or permission to reject the applicable ground lease or easement agreement in the event that there shall be filed by or against any Loan Party any petition, action or proceeding under the Bankruptcy Code or any similar federal or state law; provided, that the Administrative Agent shall have the right, but not the obligation, to serve upon the applicable Loan Party within such thirty (30) day period a notice stating that (i) the Administrative Agent demands that such Loan Party assume and the assign the relevant ground lease or easement agreement to the Administrative Agent subject to an in accordance with the Bankruptcy Code and (ii) the Administrative Agent covenants to cure or provide reasonably adequate assurance thereof with respect to all defaults susceptible of being cured by the Administrative Agent and of future performance under the applicable ground lease or easement agreement; provided, further, that if the Administrative Agent serves such notice upon the applicable Loan Party, such Loan Party shall not seek to reject the applicable agreement and shall promptly comply with such demand;
(p) permit the Administrative Agent (at its option), during the continuance of any Event of Default, to (i) perform and comply with all obligations under the applicable ground lease or easement agreement; (ii) do and take such action as the Administrative Agent deems necessary or desirable to prevent or cure any default by such Loan Party under such ground lease or easement agreement and (iii) enter in and upon the applicable premises related to such ground lease or easement agreement to the extent and as often as the Administrative Agent deems necessary or desirable in order to prevent or cure any default under the applicable ground lease or easement agreement;
(q) in the event of any arbitration, court or other adjudicative proceedings under or with respect to any such ground lease or easement agreement, permit the Administrative Agent (at its option) to exercise all right, title and interest of the applicable Loan Party in connection with such proceedings; provided, that (i) Borrower and each other Loan Party hereby irrevocably appoint the Administrative Agent as their attorney-in-fact (which appointment shall be deemed coupled with an interest) to exercise such right, interest and title and (ii) the Loan Parties shall bear all costs, fees and expenses related to such proceedings; provided, further, that each Loan Party hereby further agrees that the Administrative Agent shall have the right, but not the obligation, to proceed in respect of any claim, suit, action or proceeding relating to the rejection of any of the ground leases or easement agreements referenced above by the relevant ground lessor or obligor as a result of bankruptcy or similar proceedings (including, without limitation, the right to file and prosecute all proofs of claims, complaints, notices and other documents in any such bankruptcy case or similar proceeding); and
(r) deliver to the Administrative Agent (or, subject to the requirements of the subject ground lease, cause the applicable lessor or other obligor to deliver to the Administrative Agent) an estoppel certificate in relation to such ground lease or easement agreement in form and substance acceptable to the Administrative Agent, in its discretion, and, in any case, setting forth (i) the name of lessee and lessor under the ground lease (if applicable); (ii) that such ground lease or easement agreement is in full force and effect and has not been modified except to the extent Administrative Agent has received notice of such modification; (iii) that no rental and other payments due thereunder are delinquent as of the date of such estoppel; and (iv) whether such Person knows of any actual or alleged defaults or events of default under the applicable ground lease or easement agreement; provided, that each Loan Party hereby agrees to execute and deliver to Administrative Agent, within ten (10) days of any request therefor, such documents, instruments, agreements, assignments or other conveyances reasonably requested by the Administrative Agent in connection with or in furtherance of any of the provisions set forth above or the rights granted to the Administrative Agent in connection therewith.
Appears in 2 contracts
Samples: Credit Agreement (Ryman Hospitality Properties, Inc.), Credit Agreement (Ryman Hospitality Properties, Inc.)
Ground Leases. Shall (and Borrower shall cause such Loan Parties to), with respect to any ground lease related to any Borrowing Base Property or material easement agreements in favor of such Loan Party and related to any Borrowing Base Property (as applicable):
(a) Borrower or Leasehold Pledgor shall cause Owner to:
(i) pay when due the rent all rents, additional rents and other amounts due sums required to be paid by the applicable Individual Owner, as tenant under and payable thereunder (pursuant to the provisions of the Ground Leases, as and when such rent or other charge is payable, subject to applicable grace periods afforded Owner 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 Owner’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 all of the terms, covenants and conditions of the Ground Leases on the part of the applicable Individual Owner, as tenant thereunder, to be performed and observed, at least three (3) days prior to the expiration of any applicable grace periods);period therein provided; and
(iii) promptly notify Lender of the giving of any written notice by the lessor under the Ground Leases to Owner of any default by Owner in the performance or observance of any of the terms, covenants or conditions of the Ground Leases on the part of Owner, as tenant thereunder, to be performed or observed, and deliver to Lender a true copy of each such notice.
(b) timely Borrower shall not, without the prior consent of Lender (which consent may be withheld by Lender in its sole and absolute discretion), cause Owner to surrender or cause or permit Owner to surrender 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.
(c) If any Individual Owner shall default in the performance or observance of any material term, covenant or condition of any Ground Lease on the part of such Individual Owner, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of the Pledge Agreement, this Agreement and the other Loan Documents, and without waiving or releasing Borrower from any of its Obligations hereunder (but subject to the rights of Mortgage Lender), Lender shall have the right, but shall be under no obligation, to pay any sums and to perform and observe any act or take any action as may be necessary or appropriate to cause all of the material terms, covenants and conditions required of the Ground Lease on the part of such Individual Owner, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of such Individual Owner, to the end that the rights of such Individual Owner in, to and observed under 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 it as tenant thereunder Owner or by any party on behalf of Owner. 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 applicable cure the rights of tenants, subtenants and other occupants under the Leases or grace periodsof 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 in accordance with this Section 4.33(c);
(c) do all things necessary to preserve , together with interest thereon from the day of such payment at the Default Rate. All sums so paid and keep unimpaired such ground lease or easement agreement expended by Lender and its rights thereunder;the interest thereon shall be secured by the legal operation and effect of the Pledge Agreement.
(d) not waiveIf any lessor under a Ground Lease shall deliver to Lender a copy of any notice of default sent by said lessor to an Individual Owner, excuse as tenant under such Ground Lease, such notice shall constitute full protection to Lender for any action taken or discharge any omitted to be taken by Lender, in good faith, in reliance thereon and in accordance with Section 4.33(c). Borrower shall cause Owner to exercise each individual option, if any, to extend or renew the term of the material obligations of the lessor Ground Leases upon demand by Lender or other obligor thereunder;
Mortgage Lender made at any time within one (e1) diligently and continuously enforce the material obligations of the lessor or other obligor thereunder;
(f) not do, permit or suffer (i) any act, event or omission which would be likely to result in a default or permit the applicable lessor or other obligor to terminate or exercise any other remedy with respect year prior to the applicable ground lease or easement or (ii) last day upon which any actsuch option may be exercised, event or omission whichand if Borrower shall fail to do so, with the giving of notice or the passage of time, or both, would constitute a default or permit the lessor or such other obligor Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any other remedy under such option in the name of and upon behalf of the applicable agreement;
(g) cancelIndividual Owner, terminate, surrender, modify or amend any which power of the provisions of any such ground lease or easement or agree attorney shall be irrevocable and shall be deemed to any termination, amendment, modification or surrender thereof without the prior written consent of the Administrative Agent;
(h) deliver to the Administrative Agent all default and other material notices received by it or sent by it under the applicable ground lease or easement agreement;
(i) at Administrative Agent’s request, provide to Administrative Agent any information or materials relating to such ground lease or easement agreement and evidencing such Loan Party’s due observance and performance of its obligations thereunder;
(j) be coupled with an interest. Borrower will not permit subordinate or consent to the subordination of such ground the Ground Leases to any mortgage, security deed, lease or easement agreement 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) Borrower shall not permit any Individual Owner to, without Lender’s written consent, elect to treat any Ground Lease as terminated under Subsection 365(h)(1) of the U.S. Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(ii) If, pursuant to subsection 365(h) of the Bankruptcy Code, any Individual Owner 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 Owner shall not effect any offset of such amounts unless it shall have provided written notice to Mortgage Lender and Lender of its intent to do so and Mortgage Lender and Lender shall have consented thereto.
(f) Borrower may permit Owner to exercise any Ground Lease Purchase Option with respect to any mortgage or other leasehold interest Ground Lease Property without Lender’s prior written consent; provided each of the premises related theretofollowing conditions is satisfied:
(i) No Event of Default shall have occurred and be continuing;
(kii) execute and deliver Lender shall receive not less than forty-five (to the extent permitted to do so under such ground lease or easement agreement), upon the request 45) days advance written notice of the Administrative Agent, any documents, instruments or agreements as may be related Individual Owner’s intention to exercise such Ground Lease Purchase Option unless such Ground Lease sets forth a shorter time period within which such Individual Owner is required to permit respond in order to exercise such Ground Lease Purchase Option, in which case the Administrative Agent to cure any default under advance notice period hereunder shall instead be such ground lease or easement agreementshorter time period;
(liii) provide to Administrative Agent written notice The related Individual Owner shall comply with all of its intention to exercise any option or renewal or extension rights the terms and conditions of the related Ground Lease with respect to such ground lease or easement at least thirty (30) days prior to the expiration of the time to exercise such right or option and, upon the direction of the Administrative Agent, duly exercise any renewal or extension option with respect to any such ground lease or easement (provided, that Borrower and each Loan Party hereby appoints the Administrative Agent its attorney-in-fact, coupled with an interest, to execute and deliver, for and in the name of such Person, all instruments, documents or agreements necessary to extend or renew any such ground lease or easementGround Lease Purchase Option;
(miv) Fee title to the related Ground Lease Property shall be conveyed to the Individual Owner 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 treatresult in a merger of the fee and leasehold estates in such Ground Lease Property;
(v) Neither Borrower nor Owner shall 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 Owner’s acquisition of fee title to the Ground Lease Property, such Individual Owner shall comply with all of the terms and conditions of the Mortgage Loan Documents;
(viii) Borrower shall cause Owner to obtain a new owner’s title insurance policy together with a mezzanine endorsement thereto (or, if a mezzanine endorsement is unavailable, an assignment of title proceeds letter) reasonably satisfactory to Lender; and
(ix) Lender and/or its Servicer shall be reimbursed for all costs and expenses, including legal fees, incurred in connection with the bankruptcy exercise of such Ground Lease Purchase Option.
(g) Borrower shall not cause or other insolvency proceedings 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 Owner which is the ground lessor or other obligorlessee under the related Ground Lease, any ground lease or easement agreement as terminated, cancelled or surrendered pursuant to the Bankruptcy Code without the Administrative Agent’s prior written consent;
(n) and then only in connection compliance 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 or easement agreement within the applicable time period therefore in such proceedings, notwithstanding any rejection by such ground lessor or obligor or trustee, custodian or receiver related thereto;
preceding Subsection (o) provide to the Administrative Agent not less than thirty (30) days prior written notice of the date on which the applicable Loan Party shall apply to any court or other governmental authority for authority or permission to reject the applicable ground lease or easement agreement in the event that there shall be filed by or against any Loan Party any petition, action or proceeding under the Bankruptcy Code or any similar federal or state law; provided, that the Administrative Agent shall have the right, but not the obligation, to serve upon the applicable Loan Party within such thirty (30) day period a notice stating that (i) the Administrative Agent demands that such Loan Party assume and the assign the relevant ground lease or easement agreement to the Administrative Agent subject to an in accordance with the Bankruptcy Code and (ii) the Administrative Agent covenants to cure or provide reasonably adequate assurance thereof with respect to all defaults susceptible of being cured by the Administrative Agent and of future performance under the applicable ground lease or easement agreement; provided, further, that if the Administrative Agent serves such notice upon the applicable Loan Party, such Loan Party shall not seek to reject the applicable agreement and shall promptly comply with such demand;
(p) permit the Administrative Agent (at its optionf), during the continuance of any Event of Default, to (i) perform and comply with all obligations under the applicable ground lease or easement agreement; (ii) do and take such action as the Administrative Agent deems necessary or desirable to prevent or cure any default by such Loan Party under such ground lease or easement agreement and (iii) enter in and upon the applicable premises related to such ground lease or easement agreement to the extent and as often as the Administrative Agent deems necessary or desirable in order to prevent or cure any default under the applicable ground lease or easement agreement;
(q) in the event of any arbitration, court or other adjudicative proceedings under or with respect to any such ground lease or easement agreement, permit the Administrative Agent (at its option) to exercise all right, title and interest of the applicable Loan Party in connection with such proceedings; provided, that (i) Borrower and each other Loan Party hereby irrevocably appoint the Administrative Agent as their attorney-in-fact (which appointment shall be deemed coupled with an interest) to exercise such right, interest and title and (ii) the Loan Parties shall bear all costs, fees and expenses related to such proceedings; provided, further, that each Loan Party hereby further agrees that the Administrative Agent shall have the right, but not the obligation, to proceed in respect of any claim, suit, action or proceeding relating to the rejection of any of the ground leases or easement agreements referenced above by the relevant ground lessor or obligor as a result of bankruptcy or similar proceedings (including, without limitation, the right to file and prosecute all proofs of claims, complaints, notices and other documents in any such bankruptcy case or similar proceeding); and
(r) deliver to the Administrative Agent (or, subject to the requirements of the subject ground lease, cause the applicable lessor or other obligor to deliver to the Administrative Agent) an estoppel certificate in relation to such ground lease or easement agreement in form and substance acceptable to the Administrative Agent, in its discretion, and, in any case, setting forth (i) the name of lessee and lessor under the ground lease (if applicable); (ii) that such ground lease or easement agreement is in full force and effect and has not been modified except to the extent Administrative Agent has received notice of such modification; (iii) that no rental and other payments due thereunder are delinquent as of the date of such estoppel; and (iv) whether such Person knows of any actual or alleged defaults or events of default under the applicable ground lease or easement agreement; provided, that each Loan Party hereby agrees to execute and deliver to Administrative Agent, within ten (10) days of any request therefor, such documents, instruments, agreements, assignments or other conveyances reasonably requested by the Administrative Agent in connection with or in furtherance of any of the provisions set forth above or the rights granted to the Administrative Agent in connection therewith.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Hospitality Investors Trust, Inc.)
Ground Leases. Shall (and Borrower shall cause such Loan Parties toExcept as set forth on Schedule 2.2(k)(ix), no Subject Entity is a party to any ground lease and no part of the Real Property is subject to any ground lease. Such schedule sets forth a list of all ground leases entered into by or otherwise affecting a Subject Entity (the “Ground Leases”). To the knowledge of the Subject Entities, (A) the copies of the Ground Leases delivered or to be delivered in accordance with this Agreement are true, complete and accurate copies of all of the Ground Leases, including all amendments, modifications, extensions, renewals, guarantees and other agreements with respect thereto; (B) there are no written or oral promises, understandings or commitments between any of the entities and any ground lessor other than as set forth in such delivered copies; (C) the Ground Leases constitute the legal, valid and binding obligation of each of the parties named therein or otherwise obligated thereunder, and the Ground Leases are enforceable in accordance with their terms; (D) neither such entity nor any ground lessor has breached or is in default of any material provision in any Ground Lease, and no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, could reasonably be expected to constitute a material breach or default or permit the termination, modification or acceleration of rent under any Ground Lease; (E) no security deposit or portion thereof deposited with respect to any ground lease related Ground Lease has been applied in respect of a breach or default under such Ground Lease which has not been redeposited in full; and (F) the transactions contemplated by this Agreement do not require the consent of any other party to any Borrowing Base Property or material easement agreements in favor of such Loan Party and related to any Borrowing Base Property (as applicable):
(a) pay when due the rent and other amounts due and payable thereunder (subject to applicable cure or grace periods);
(b) timely perform and observe all of the material termsGround Lease, covenants and conditions required to be performed and observed by it as tenant thereunder (subject to applicable cure or grace periods);
(c) do all things necessary to preserve and keep unimpaired such ground lease or easement agreement and its rights thereunder;
(d) will not waive, excuse or discharge any of the material obligations of the lessor or other obligor thereunder;
(e) diligently and continuously enforce the material obligations of the lessor or other obligor thereunder;
(f) not do, permit or suffer (i) any act, event or omission which would be likely to result in a default breach of or permit the applicable lessor or other obligor to terminate or exercise any other remedy with respect to the applicable ground lease or easement or (ii) any act, event or omission which, with the giving of notice or the passage of time, or both, would constitute a default or permit the lessor or such other obligor to exercise any other remedy under the applicable agreement;
(g) cancel, terminate, surrender, modify or amend any of the provisions of any such ground lease or easement or agree to any termination, amendment, modification or surrender thereof without the prior written consent of the Administrative Agent;
(h) deliver to the Administrative Agent all default and other material notices received by it or sent by it under the applicable ground lease or easement agreement;
(i) at Administrative Agent’s request, provide to Administrative Agent any information or materials relating to such ground lease or easement agreement and evidencing such Loan Party’s due observance and performance of its obligations thereunder;
(j) not permit or consent to the subordination of such ground lease or easement agreement to any mortgage or other leasehold interest of the premises related thereto;
(k) execute and deliver (to the extent permitted to do so under such ground lease or easement agreement), upon the request of the Administrative Agent, any documents, instruments or agreements as may be required to permit the Administrative Agent to cure any default under such ground lease or easement agreement;
(l) provide any Ground Lease, will not otherwise cause any Ground Lease to Administrative Agent written notice of its intention cease to exercise any option or renewal or extension rights with respect to such ground lease or easement at least thirty (30) days prior to the expiration of the time to exercise such right or option andbe legal, upon the direction of the Administrative Agentvalid, duly exercise any renewal or extension option with respect to any such ground lease or easement (providedbinding, that Borrower enforceable and each Loan Party hereby appoints the Administrative Agent its attorney-in-fact, coupled with an interest, to execute and deliver, for and in the name of such Person, all instruments, documents or agreements necessary to extend or renew any such ground lease or easement;
(m) not treat, in connection with the bankruptcy or other insolvency proceedings of any ground lessor or other obligor, any ground lease or easement agreement as terminated, cancelled or surrendered pursuant to the Bankruptcy Code without the Administrative Agent’s prior written consent;
(n) 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 or easement agreement within the applicable time period therefore in such proceedings, notwithstanding any rejection by such ground lessor or obligor or trustee, custodian or receiver related thereto;
(o) provide to the Administrative Agent not less than thirty (30) days prior written notice of the date on which the applicable Loan Party shall apply to any court or other governmental authority for authority or permission to reject the applicable ground lease or easement agreement in the event that there shall be filed by or against any Loan Party any petition, action or proceeding under the Bankruptcy Code or any similar federal or state law; provided, that the Administrative Agent shall have the right, but not the obligation, to serve upon the applicable Loan Party within such thirty (30) day period a notice stating that (i) the Administrative Agent demands that such Loan Party assume and the assign the relevant ground lease or easement agreement to the Administrative Agent subject to an in accordance with the Bankruptcy Code and (ii) the Administrative Agent covenants to cure or provide reasonably adequate assurance thereof with respect to all defaults susceptible of being cured by the Administrative Agent and of future performance under the applicable ground lease or easement agreement; provided, further, that if the Administrative Agent serves such notice upon the applicable Loan Party, such Loan Party shall not seek to reject the applicable agreement and shall promptly comply with such demand;
(p) permit the Administrative Agent (at its option), during the continuance of any Event of Default, to (i) perform and comply with all obligations under the applicable ground lease or easement agreement; (ii) do and take such action as the Administrative Agent deems necessary or desirable to prevent or cure any default by such Loan Party under such ground lease or easement agreement and (iii) enter in and upon the applicable premises related to such ground lease or easement agreement to the extent and as often as the Administrative Agent deems necessary or desirable in order to prevent or cure any default under the applicable ground lease or easement agreement;
(q) in the event of any arbitration, court or other adjudicative proceedings under or with respect to any such ground lease or easement agreement, permit the Administrative Agent (at its option) to exercise all right, title and interest of the applicable Loan Party in connection with such proceedings; provided, that (i) Borrower and each other Loan Party hereby irrevocably appoint the Administrative Agent as their attorney-in-fact (which appointment shall be deemed coupled with an interest) to exercise such right, interest and title and (ii) the Loan Parties shall bear all costs, fees and expenses related to such proceedings; provided, further, that each Loan Party hereby further agrees that the Administrative Agent shall have the right, but not the obligation, to proceed in respect of any claim, suit, action or proceeding relating to the rejection of any of the ground leases or easement agreements referenced above by the relevant ground lessor or obligor as a result of bankruptcy or similar proceedings (including, without limitation, the right to file and prosecute all proofs of claims, complaints, notices and other documents in any such bankruptcy case or similar proceeding); and
(r) deliver to the Administrative Agent (or, subject to the requirements of the subject ground lease, cause the applicable lessor or other obligor to deliver to the Administrative Agent) an estoppel certificate in relation to such ground lease or easement agreement in form and substance acceptable to the Administrative Agent, in its discretion, and, in any case, setting forth (i) the name of lessee and lessor under the ground lease (if applicable); (ii) that such ground lease or easement agreement is in full force and effect on identical terms following the Closing, and has will not been modified except to the extent Administrative Agent has received notice trigger any purchase option, right of such modification; (iii) that no rental and other payments due thereunder are delinquent as first opportunity, right of the date of such estoppel; and (iv) whether such Person knows of any actual or alleged defaults or events of default under the applicable ground lease or easement agreement; provided, that each Loan Party hereby agrees to execute and deliver to Administrative Agent, within ten (10) days of any request therefor, such documents, instruments, agreements, assignments first refusal or other conveyances reasonably requested by similar right to purchase the Administrative Agent in connection with or in furtherance of any of the provisions set forth above or the rights granted to the Administrative Agent in connection therewithsubject premises.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Richmond Honan Medical Properties Inc.)
Ground Leases. Shall (and Borrower shall cause such Loan Parties to), with respect to any ground lease related to any Borrowing Base Property thereto or material easement agreements in favor of such Loan Party and related to any Borrowing Base Property (as applicable):thereto:
(a) pay when due the rent and other amounts due and payable thereunder (subject to applicable cure or grace periods);
(b) timely perform and observe all of the material terms, covenants and conditions required to be performed and observed by it as tenant thereunder (subject to applicable cure or grace periods);
(c) do all things necessary to preserve and keep unimpaired such ground lease or easement agreement and its rights thereunder;
(d) not waive, excuse or discharge any of the material obligations of the lessor or other obligor thereunder;
(e) diligently and continuously enforce the material obligations of the lessor or other obligor thereunder;
(f) not do, permit or suffer (i) any act, event or omission which would be likely to result in a default or permit the applicable lessor or other obligor to terminate or exercise any other remedy with respect to the applicable ground lease or easement or (ii) any act, event or omission which, with the giving of notice or the passage of time, or both, would constitute a default or permit the lessor or such other obligor to exercise any other remedy under the applicable agreement;
(g) cancel, terminate, surrender, modify or amend any of the provisions of any such ground lease or easement or agree to any termination, amendment, modification or surrender thereof without the prior written consent of the Administrative Agent;
(h) deliver to the Administrative Agent all default and other material notices received by it or sent by it under the applicable ground lease or easement agreement;
(i) at Administrative Agent’s 's request, provide to Administrative Agent any information or materials relating to such ground lease or easement agreement and evidencing such Loan Party’s 's due observance and performance of its obligations thereunder;
(j) not permit or consent to the subordination of such ground lease or easement agreement to any mortgage or other leasehold interest of the premises related thereto;
(k) execute and deliver (to the extent permitted to do so under such ground lease or easement agreement), upon the request of the Administrative Agent, any documents, instruments or agreements as may be required to permit the Administrative Agent to cure any default under such ground lease or easement agreement;
(l) provide to Administrative Agent written notice of its intention to exercise any option or renewal or extension rights with respect to such ground lease or easement at least thirty (30) days prior to the expiration of the time to exercise such right or option and, upon the direction of the Administrative Agent, duly exercise any renewal or extension option with respect to any such ground lease or easement (provided, that Borrower and each Loan Party hereby appoints the Administrative Agent its attorney-in-fact, coupled with an interest, to execute and deliver, for and in the name of such Person, all instruments, documents or agreements necessary to extend or renew any such ground lease or easement;
(m) not treat, in connection with the bankruptcy or other insolvency proceedings of any ground lessor or other obligor, any ground lease or easement agreement as terminated, cancelled or surrendered pursuant to the Bankruptcy Code without the Administrative Agent’s 's prior written consent;
(n) 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 or easement agreement within the applicable time period therefore in such proceedings, notwithstanding any rejection by such ground lessor or obligor or trustee, custodian or receiver related thereto;
(o) provide to the Administrative Agent not less than thirty (30) days prior written notice of the date on which the applicable Loan Party shall apply to any court or other governmental authority for authority or permission to reject the applicable ground lease or easement agreement in the event that there shall be filed by or against any Loan Party any petition, action or proceeding under the Bankruptcy Code or any similar federal or state law; provided, that the Administrative Agent shall have the right, but not the obligation, to serve upon the applicable Loan Party within such thirty (30) day period a notice stating that (i) the Administrative Agent demands that such Loan Party assume and the assign the relevant ground lease or easement agreement to the Administrative Agent subject to an in accordance with the Bankruptcy Code and (ii) the Administrative Agent covenants to cure or provide reasonably adequate assurance thereof with respect to all defaults susceptible of being cured by the Administrative Agent and of future performance under the applicable ground lease or easement agreement; provided, further, that if the Administrative Agent serves such notice upon the applicable Loan Party, such Loan Party shall not seek to reject the applicable agreement and shall promptly comply with such demand;
(p) permit the Administrative Agent (at its option), during the continuance of any Event of Default, to (i) perform and comply with all obligations under the applicable ground lease or easement agreement; (ii) do and take such action as the Administrative Agent deems necessary or desirable to prevent or cure any default by such Loan Party under such ground lease or easement agreement and (iii) enter in and upon the applicable premises related to such ground lease or easement agreement to the extent and as often as the Administrative Agent deems necessary or desirable in order to prevent or cure any default under the applicable ground lease or easement agreement;
(q) in the event of any arbitration, court or other adjudicative proceedings under or with respect to any such ground lease or easement agreement, permit the Administrative Agent (at its option) to exercise all right, title and interest of the applicable Loan Party in connection with such proceedings; provided, that (i) Borrower and each other Loan Party hereby irrevocably appoint the Administrative Agent as their attorney-in-fact (which appointment shall be deemed coupled with an interest) to exercise such right, interest and title and (ii) the Loan Parties shall bear all costs, fees and expenses related to such proceedings; provided, further, that each Loan Party hereby further agrees that the Administrative Agent shall have the right, but not the obligation, to proceed in respect of any claim, suit, action or proceeding relating to the rejection of any of the ground leases or easement agreements referenced above by the relevant ground lessor or obligor as a result of bankruptcy or similar proceedings (including, without limitation, the right to file and prosecute all proofs of claims, complaints, notices and other documents in any such bankruptcy case or similar proceeding); and
(r) deliver to the Administrative Agent (or, subject to the requirements of the subject ground lease, cause the applicable lessor or other obligor to deliver to the Administrative Agent) an estoppel certificate in relation to such ground lease or easement agreement in form and substance acceptable to the Administrative Agent, in its discretion, and, in any case, setting forth (i) the name of lessee and lessor under the ground lease (if applicable); (ii) that such ground lease or easement agreement is in full force and effect and has not been modified except to the extent Administrative Agent has received notice of such modification; (iii) that no rental and other payments due thereunder are delinquent as of the date of such estoppel; and (iv) whether such Person knows of any actual or alleged defaults or events of default under the applicable ground lease or easement agreement; provided, that each Loan Party hereby agrees to execute and deliver to Administrative Agent, within ten (10) days of any request therefor, such documents, instruments, agreements, assignments or other conveyances reasonably requested by the Administrative Agent in connection with or in furtherance of any of the provisions set forth above or the rights granted to the Administrative Agent in connection therewith.
Appears in 1 contract
Ground Leases. Shall (and a) Borrower shall cause such Loan Parties Owner to), with respect to any ground lease related to any Borrowing Base Property or material easement agreements in favor of such Loan Party and related to any Borrowing Base Property (as applicable)::
(ai) pay when due the rent all rents, additional rents and other amounts due sums required to be paid by the applicable Individual Owner, as tenant under and payable thereunder (pursuant to the provisions of the Ground Leases, as and when such rent or other charge is payable, subject to applicable grace periods afforded Owner 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 Owner’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 all of the terms, covenants and conditions of the Ground Leases on the part of the applicable Individual Owner, as tenant thereunder, to be performed and observed, at least three (3) days prior to the expiration of any applicable grace periods);period therein provided; and
(iii) promptly notify Lender of the giving of any written notice by the lessor under the Ground Leases to Owner of any default by Owner in the performance or observance of any of the terms, covenants or conditions of the Ground Leases on the part of Owner, as tenant thereunder, to be performed or observed, and deliver to Lender a true copy of each such notice.
(b) timely Borrower shall not, without the prior consent of Lender (which consent may be withheld by Lender in its sole and absolute discretion), cause Owner to surrender or cause or permit Owner to surrender 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.
(c) If any Individual Owner shall default in the performance or observance of any material term, covenant or condition of any Ground Lease on the part of such Individual Owner, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of the Pledge Agreement, this Agreement and the other Loan Documents, and without waiving or releasing Borrower from any of its Obligations hereunder (but subject to the rights of Mortgage Lender), Lender shall have the right, but shall be under no obligation, to pay any sums and to perform and observe any act or take any action as may be necessary or appropriate to cause all of the material terms, covenants and conditions required of the Ground Lease on the part of such Individual Owner, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of such Individual Owner, to the end that the rights of such Individual Owner in, to and observed under 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 it as tenant thereunder Owner or by any party on behalf of Owner. 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 applicable cure the rights of tenants, subtenants and other occupants under the Leases or grace periodsof 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 in accordance with this Section 4.33(c);
(c) do all things necessary to preserve , together with interest thereon from the day of such payment at the Default Rate. All sums so paid and keep unimpaired such ground lease or easement agreement expended by Lender and its rights thereunder;the interest thereon shall be secured by the legal operation and effect of the Pledge Agreement.
(d) not waiveIf any lessor under a Ground Lease shall deliver to Lender a copy of any notice of default sent by said lessor to an Individual Owner, excuse as tenant under such Ground Lease, such notice shall constitute full protection to Lender for any action taken or discharge any omitted to be taken by Lender, in good faith, in reliance thereon and in accordance with Section 4.33(c). Borrower shall cause Owner to exercise each individual option, if any, to extend or renew the term of the material obligations of the lessor Ground Leases upon demand by Lender or other obligor thereunder;
Mortgage Lender made at any time within one (e1) diligently and continuously enforce the material obligations of the lessor or other obligor thereunder;
(f) not do, permit or suffer (i) any act, event or omission which would be likely to result in a default or permit the applicable lessor or other obligor to terminate or exercise any other remedy with respect year prior to the applicable ground lease or easement or (ii) last day upon which any actsuch option may be exercised, event or omission whichand if Borrower shall fail to do so, with the giving of notice or the passage of time, or both, would constitute a default or permit the lessor or such other obligor Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any other remedy under such option in the name of and upon behalf of the applicable agreement;
(g) cancelIndividual Owner, terminate, surrender, modify or amend any which power of the provisions of any such ground lease or easement or agree attorney shall be irrevocable and shall be deemed to any termination, amendment, modification or surrender thereof without the prior written consent of the Administrative Agent;
(h) deliver to the Administrative Agent all default and other material notices received by it or sent by it under the applicable ground lease or easement agreement;
(i) at Administrative Agent’s request, provide to Administrative Agent any information or materials relating to such ground lease or easement agreement and evidencing such Loan Party’s due observance and performance of its obligations thereunder;
(j) be coupled with an interest. Borrower will not permit subordinate or consent to the subordination of such ground the Ground Leases to any mortgage, security deed, lease or easement agreement 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) Borrower shall not permit any Individual Owner to, without Lender’s written consent, elect to treat any Ground Lease as terminated under Subsection 365(h)(1) of the U.S. Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(ii) If, pursuant to subsection 365(h) of the Bankruptcy Code, any Individual Owner 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 Owner shall not effect any offset of such amounts unless it shall have provided written notice to Mortgage Lender and Lender of its intent to do so and Mortgage Lender and Lender shall have consented thereto.
(f) Borrower may permit Owner to exercise any Ground Lease Purchase Option with respect to any mortgage or other leasehold interest Ground Lease Property without Lender’s prior written consent; provided each of the premises related theretofollowing conditions is satisfied:
(i) No Event of Default shall have occurred and be continuing;
(kii) execute and deliver Lender shall receive not less than forty-five (to the extent permitted to do so under such ground lease or easement agreement), upon the request 45) days advance written notice of the Administrative Agent, any documents, instruments or agreements as may be related Individual Owner’s intention to exercise such Ground Lease Purchase Option unless such Ground Lease sets forth a shorter time period within which such Individual Owner is required to permit respond in order to exercise such Ground Lease Purchase Option, in which case the Administrative Agent to cure any default under advance notice period hereunder shall instead be such ground lease or easement agreementshorter time period;
(liii) provide to Administrative Agent written notice The related Individual Owner shall comply with all of its intention to exercise any option or renewal or extension rights the terms and conditions of the related Ground Lease with respect to such ground lease or easement at least thirty (30) days prior to the expiration of the time to exercise such right or option and, upon the direction of the Administrative Agent, duly exercise any renewal or extension option with respect to any such ground lease or easement (provided, that Borrower and each Loan Party hereby appoints the Administrative Agent its attorney-in-fact, coupled with an interest, to execute and deliver, for and in the name of such Person, all instruments, documents or agreements necessary to extend or renew any such ground lease or easementGround Lease Purchase Option;
(miv) Fee title to the related Ground Lease Property shall be conveyed to the Individual Owner 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 treatresult in a merger of the fee and leasehold estates in such Ground Lease Property;
(v) Neither Borrower nor Owner shall 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 Owner’s acquisition of fee title to the Ground Lease Property, such Individual Owner shall comply with all of the terms and conditions of the Mortgage Loan Documents;
(viii) Borrower shall cause Owner to obtain a new owner’s title insurance policy together with a mezzanine endorsement thereto (or, if a mezzanine endorsement is unavailable, an assignment of title proceeds letter) reasonably satisfactory to Lender; and
(ix) Lender and/or its Servicer shall be reimbursed for all costs and expenses, including legal fees, incurred in connection with the bankruptcy exercise of such Ground Lease Purchase Option.
(g) Borrower shall not cause or other insolvency proceedings 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 Owner which is the ground lessor or other obligorlessee under the related Ground Lease, any ground lease or easement agreement as terminated, cancelled or surrendered pursuant and then only in compliance with the preceding Subsection (f).
(h) With respect to the Bankruptcy Code without Individual Property located in San Antonio, Texas commonly known as the Administrative Agent’s prior written consent;
(n) in connection with Springfield Suites, Borrower agrees that during the bankruptcy or other insolvency proceedings of any ground lessor or other obligorTerm, ratify the legality, binding effect and enforceability of it will cause the applicable ground lease or easement agreement within the applicable time period therefore in such proceedings, notwithstanding any rejection by such ground lessor or obligor or trustee, custodian or receiver related thereto;
(o) provide Individual Owner to the Administrative Agent not less than thirty (30) days prior written notice of the date on which the applicable Loan Party shall apply to any court or other governmental authority for authority or permission to reject the applicable ground lease or easement agreement in the event that there shall be filed by or against any Loan Party any petition, action or proceeding under the Bankruptcy Code or any similar federal or state law; provided, that the Administrative Agent shall have the right, but not the obligation, to serve upon the applicable Loan Party within such thirty (30) day period a notice stating that (i) the Administrative Agent demands that such Loan Party assume and the assign the relevant ground lease or easement agreement to the Administrative Agent subject to an in accordance with the Bankruptcy Code and (ii) the Administrative Agent covenants to cure or provide reasonably adequate assurance thereof with respect to all defaults susceptible of being cured by the Administrative Agent and of future performance exercise its right under the applicable ground lease Ground Lease to go dark or easement agreement; provided, further, that if the Administrative Agent serves otherwise cease operations at such notice upon the applicable Loan Party, such Loan Party shall not seek to reject the applicable agreement and shall promptly comply with such demand;
(p) permit the Administrative Agent (at its option), during the continuance of any Event of Default, to (i) perform and comply with all obligations under the applicable ground lease or easement agreement; (ii) do and take such action as the Administrative Agent deems necessary or desirable to prevent or cure any default by such Loan Party under such ground lease or easement agreement and (iii) enter in and upon the applicable premises related to such ground lease or easement agreement to the extent and as often as the Administrative Agent deems necessary or desirable in order to prevent or cure any default under the applicable ground lease or easement agreement;
(q) in the event of any arbitration, court or other adjudicative proceedings under or with respect to any such ground lease or easement agreement, permit the Administrative Agent (at its option) to exercise all right, title and interest of the applicable Loan Party in connection with such proceedings; provided, that (i) Borrower and each other Loan Party hereby irrevocably appoint the Administrative Agent as their attorney-in-fact (which appointment shall be deemed coupled with an interest) to exercise such right, interest and title and (ii) the Loan Parties shall bear all costs, fees and expenses related to such proceedings; provided, further, that each Loan Party hereby further agrees that the Administrative Agent shall have the right, but not the obligation, to proceed in respect of any claim, suit, action or proceeding relating to the rejection of any of the ground leases or easement agreements referenced above by the relevant ground lessor or obligor as a result of bankruptcy or similar proceedings (including, without limitation, the right to file and prosecute all proofs of claims, complaints, notices and other documents in any such bankruptcy case or similar proceeding); and
(r) deliver to the Administrative Agent (or, subject to the requirements of the subject ground lease, cause the applicable lessor or other obligor to deliver to the Administrative Agent) an estoppel certificate in relation to such ground lease or easement agreement in form and substance acceptable to the Administrative Agent, in its discretion, and, in any case, setting forth (i) the name of lessee and lessor under the ground lease (if applicable); (ii) that such ground lease or easement agreement is in full force and effect and has not been modified except to the extent Administrative Agent has received notice of such modification; (iii) that no rental and other payments due thereunder are delinquent as of the date of such estoppel; and (iv) whether such Person knows of any actual or alleged defaults or events of default under the applicable ground lease or easement agreement; provided, that each Loan Party hereby agrees to execute and deliver to Administrative Agent, within ten (10) days of any request therefor, such documents, instruments, agreements, assignments or other conveyances reasonably requested by the Administrative Agent in connection with or in furtherance of any of the provisions set forth above or the rights granted to the Administrative Agent in connection therewithIndividual Property.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (W2007 Grace Acquisition I Inc)
Ground Leases. Shall (and a) Borrower shall cause such Loan Parties Owner to), with respect to any ground lease related to any Borrowing Base Property or material easement agreements in favor of such Loan Party and related to any Borrowing Base Property (as applicable)::
(ai) pay when due the rent all rents, additional rents and other amounts due sums required to be paid by the applicable Individual Owner, as tenant under and payable thereunder (pursuant to the provisions of the Ground Leases, as and when such rent or other charge is payable, subject to applicable grace periods afforded Owner 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 Owner’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) diligendy perform and observe all of the terms, covenants and conditions of the Ground Leases on the part of the applicable Individual Owner, as tenant thereunder, to be performed and observed, at least three (3) days prior to the expiration of any applicable grace periods);period therein provided; and
(iii) promptly notify Lender of the giving of any written notice by the lessor under the Ground Leases to Owner of any default by Owner in the performance or observance of any of the terms, covenants or conditions of the Ground Leases on the part of Owner, as tenant thereunder, to be performed or observed, and deliver to Lender a true copy of each such notice.
(b) timely Borrower shall not, without the prior consent of Lender (which consent may be withheld by Lender in its sole and absolute discretion), cause Owner to surrender or cause or permit Owner to surrender 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.
(c) If any Individual Owner shall default in the performance or observance of any material term, covenant or condition of any Ground Lease on the part of such Individual Owner, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of the Pledge Agreement, this Agreement and the other Loan Documents, and without waiving or releasing Borrower from any of its Obligations hereunder (but subject to the rights of Mortgage Lender), Lender shall have the right, but shall be under no obligation, to pay any sums and to perform and observe any act or take any action as may be necessary or appropriate to cause all of the material terms, covenants and conditions required of the Ground Lease on the part of such Individual Owner, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of such Individual Owner, to the end that the rights of such Individual Owner in, to and observed under 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 it as tenant thereunder Owner or by any party on behalf of Owner. 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 applicable cure the rights of tenants, subtenants and other occupants under the Leases or grace periodsof 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 in accordance with this Section 4.33(c);
(c) do all things necessary to preserve . together with interest thereon from the day of such payment at the Default Rate. All sums so paid and keep unimpaired such ground lease or easement agreement expended by Lender and its rights thereunder;the interest thereon shall be secured by the legal operation and effect of the Pledge Agreement.
(d) not waiveIf any lessor under a Ground Lease shall deliver to Lender a copy of any notice of default sent by said lessor to an Individual Owner, excuse as tenant under such Ground Lease, such notice shall constitute full protection to Lender for any action taken or discharge any omitted to be taken by Lender, in good faith, in reliance thereon and in accordance with Section 4.33(c). Borrower shall cause Owner to exercise each individual option, if any, to extend or renew the term of the material obligations of the lessor Ground Leases upon demand by Lender or other obligor thereunder;
Mortgage Lender made at any time within one (e1) diligently and continuously enforce the material obligations of the lessor or other obligor thereunder;
(f) not do, permit or suffer (i) any act, event or omission which would be likely to result in a default or permit the applicable lessor or other obligor to terminate or exercise any other remedy with respect year prior to the applicable ground lease or easement or (ii) last day upon which any actsuch option may be exercised, event or omission whichand if Borrower shall fail to do so, with the giving of notice or the passage of time, or both, would constitute a default or permit the lessor or such other obligor Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any other remedy under such option in the name of and upon behalf of the applicable agreement;
(g) cancelIndividual Owner, terminate, surrender, modify or amend any which power of the provisions of any such ground lease or easement or agree attorney shall be irrevocable and shall be deemed to any termination, amendment, modification or surrender thereof without the prior written consent of the Administrative Agent;
(h) deliver to the Administrative Agent all default and other material notices received by it or sent by it under the applicable ground lease or easement agreement;
(i) at Administrative Agent’s request, provide to Administrative Agent any information or materials relating to such ground lease or easement agreement and evidencing such Loan Party’s due observance and performance of its obligations thereunder;
(j) be coupled with an interest. Borrower will not permit subordinate or consent to the subordination of such ground the Ground Leases to any mortgage, security deed, lease or easement agreement 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) Borrower shall not permit any Individual Owner to, without Lender’s written consent, elect to treat any Ground Lease as terminated under Subsection 365(h)(1) of the U.S. Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(ii) If, pursuant to subsection 365(h) of the Bankruptcy Code, any Individual Owner 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 Owner shall not effect any offset of such amounts unless it shall have provided written notice to Mortgage Lender and Lender of its intent to do so and Mortgage Lender and Lender shall have consented thereto.
(f) Borrower may permit Owner to exercise any Ground Lease Purchase Option with respect to any mortgage or other leasehold interest Ground Lease Property without Lender’s prior written consent; provided each of the premises related theretofollowing conditions is satisfied:
(i) No Event of Default shall have occurred and be continuing;
(kii) execute and deliver Lender shall receive not less than forty-five (to the extent permitted to do so under such ground lease or easement agreement), upon the request 45) days advance written notice of the Administrative Agent, any documents, instruments or agreements as may be related Individual Owner’s intention to exercise such Ground Lease Purchase Option unless such Ground Lease sets forth a shorter time period within which such Individual Owner is required to permit respond in order to exercise such Ground Lease Purchase Option, in which case the Administrative Agent to cure any default under advance notice period hereunder shall instead be such ground lease or easement agreementshorter time period;
(liii) provide to Administrative Agent written notice The related Individual Owner shall comply with all of its intention to exercise any option or renewal or extension rights the terms and conditions of the related Ground Lease with respect to such ground lease or easement at least thirty (30) days prior to the expiration of the time to exercise such right or option and, upon the direction of the Administrative Agent, duly exercise any renewal or extension option with respect to any such ground lease or easement (provided, that Borrower and each Loan Party hereby appoints the Administrative Agent its attorney-in-fact, coupled with an interest, to execute and deliver, for and in the name of such Person, all instruments, documents or agreements necessary to extend or renew any such ground lease or easementGround Lease Purchase Option;
(miv) Fee title to the related Ground Lease Property shall be conveyed to the Individual Owner 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 treatresult in a merger of the fee and leasehold estates in such Ground Lease Property;
(v) Neither Borrower nor Owner shall 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 Owner’s acquisition of fee title to the Ground Lease Property, such Individual Owner shall comply with all of the terms and conditions of the Mortgage Loan Documents;
(viii) Borrower shall cause Owner to obtain a new owner’s title insurance policy together with a mezzanine endorsement thereto (or, if a mezzanine endorsement is unavailable, an assignment of title proceeds letter) reasonably satisfactory to Lender; and
(ix) Lender and/or its Servicer shall be reimbursed for all costs and expenses, including legal fees, incurred in connection with the bankruptcy exercise of such Ground Lease Purchase Option.
(g) Borrower shall not cause or other insolvency proceedings 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 Owner which is the ground lessor or other obligorlessee under the related Ground Lease, any ground lease or easement agreement as terminated, cancelled or surrendered pursuant and then only in compliance with the preceding Subsection (f).
(h) With respect to the Bankruptcy Code without Individual Property located in San Antonio, Texas commonly known as the Administrative Agent’s prior written consent;
(n) in connection with Springfield Suites, Borrower agrees that during the bankruptcy or other insolvency proceedings of any ground lessor or other obligorTerm, ratify the legality, binding effect and enforceability of it will cause the applicable ground lease or easement agreement within the applicable time period therefore in such proceedings, notwithstanding any rejection by such ground lessor or obligor or trustee, custodian or receiver related thereto;
(o) provide Individual Owner to the Administrative Agent not less than thirty (30) days prior written notice of the date on which the applicable Loan Party shall apply to any court or other governmental authority for authority or permission to reject the applicable ground lease or easement agreement in the event that there shall be filed by or against any Loan Party any petition, action or proceeding under the Bankruptcy Code or any similar federal or state law; provided, that the Administrative Agent shall have the right, but not the obligation, to serve upon the applicable Loan Party within such thirty (30) day period a notice stating that (i) the Administrative Agent demands that such Loan Party assume and the assign the relevant ground lease or easement agreement to the Administrative Agent subject to an in accordance with the Bankruptcy Code and (ii) the Administrative Agent covenants to cure or provide reasonably adequate assurance thereof with respect to all defaults susceptible of being cured by the Administrative Agent and of future performance exercise its right under the applicable ground lease Ground Lease to go dark or easement agreement; provided, further, that if the Administrative Agent serves otherwise cease operations at such notice upon the applicable Loan Party, such Loan Party shall not seek to reject the applicable agreement and shall promptly comply with such demand;
(p) permit the Administrative Agent (at its option), during the continuance of any Event of Default, to (i) perform and comply with all obligations under the applicable ground lease or easement agreement; (ii) do and take such action as the Administrative Agent deems necessary or desirable to prevent or cure any default by such Loan Party under such ground lease or easement agreement and (iii) enter in and upon the applicable premises related to such ground lease or easement agreement to the extent and as often as the Administrative Agent deems necessary or desirable in order to prevent or cure any default under the applicable ground lease or easement agreement;
(q) in the event of any arbitration, court or other adjudicative proceedings under or with respect to any such ground lease or easement agreement, permit the Administrative Agent (at its option) to exercise all right, title and interest of the applicable Loan Party in connection with such proceedings; provided, that (i) Borrower and each other Loan Party hereby irrevocably appoint the Administrative Agent as their attorney-in-fact (which appointment shall be deemed coupled with an interest) to exercise such right, interest and title and (ii) the Loan Parties shall bear all costs, fees and expenses related to such proceedings; provided, further, that each Loan Party hereby further agrees that the Administrative Agent shall have the right, but not the obligation, to proceed in respect of any claim, suit, action or proceeding relating to the rejection of any of the ground leases or easement agreements referenced above by the relevant ground lessor or obligor as a result of bankruptcy or similar proceedings (including, without limitation, the right to file and prosecute all proofs of claims, complaints, notices and other documents in any such bankruptcy case or similar proceeding); and
(r) deliver to the Administrative Agent (or, subject to the requirements of the subject ground lease, cause the applicable lessor or other obligor to deliver to the Administrative Agent) an estoppel certificate in relation to such ground lease or easement agreement in form and substance acceptable to the Administrative Agent, in its discretion, and, in any case, setting forth (i) the name of lessee and lessor under the ground lease (if applicable); (ii) that such ground lease or easement agreement is in full force and effect and has not been modified except to the extent Administrative Agent has received notice of such modification; (iii) that no rental and other payments due thereunder are delinquent as of the date of such estoppel; and (iv) whether such Person knows of any actual or alleged defaults or events of default under the applicable ground lease or easement agreement; provided, that each Loan Party hereby agrees to execute and deliver to Administrative Agent, within ten (10) days of any request therefor, such documents, instruments, agreements, assignments or other conveyances reasonably requested by the Administrative Agent in connection with or in furtherance of any of the provisions set forth above or the rights granted to the Administrative Agent in connection therewithIndividual Property.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (American Realty Capital Hospitality Trust, Inc.)
Ground Leases. Shall (and Borrower shall cause such Loan Parties to), with respect to any ground lease related to any Borrowing Base Property or material easement agreements in favor of such Loan Party and related to any Borrowing Base Property (as applicable):
(a) pay when due the rent and other amounts due and payable thereunder (subject to applicable cure or grace periods);
(b) timely perform and observe all Effective upon consummation of the material termstransactions contemplated in the Purchase and Sale Agreement, covenants and conditions required to be performed and observed by it except as tenant thereunder (subject to applicable cure or grace periods);
(c) do all things necessary to preserve and keep unimpaired such ground lease or easement agreement and its rights thereunder;
(d) not waivedescribed in the Time of Sale Prospectus, excuse or discharge any of the material obligations of the lessor or other obligor thereunder;
(e) diligently and continuously enforce the material obligations of the lessor or other obligor thereunder;
(f) not do, permit or suffer (i) the ground lease agreement dated as of January 1, 2001 between Cortland County Industrial Development Agency, as landlord, and WSL Xxxxxx Investors IV, L.L.C., successor by assignment from Cortland Associates LLC, as tenant, relating to that certain property located at 000 Xxxxxx Xxxx, Cortlandville, New York (the “Xxxxxx Ground Lease”), and any actguaranty related thereto, event or omission which would will be likely in full force and effect and, to result in a default or permit the applicable lessor knowledge of the Company and the Operating Partnership, true, correct and complete copies of the Xxxxxx Ground Lease (including all exhibits, schedules or other obligor to terminate or exercise any other remedy with respect documents related thereto) have been provided to the applicable ground lease Underwriters or easement their counsel; (iii) there will be no disputes or (ii) any actuncured events of default, event or omission which, events that with the giving of notice or the passage of time, or both, would constitute a default or permit an event of default, by the lessor or such other obligor to exercise any other remedy tenant under the applicable agreement;
(g) cancelXxxxxx Ground Lease or, terminateto the knowledge of the Company and the Operating Partnership, surrender, modify or amend by the landlord under any of the terms and provisions of the Xxxxxx Ground Lease; (iv) there will be no oral agreements or other material agreements between the Company, the Operating Partnership or any such ground lease or easement or agree other subsidiary and the landlord under the Xxxxxx Ground Lease other than those agreements set forth on Schedule D attached hereto; (v) to any termination, amendment, modification or surrender thereof without the prior written consent knowledge of the Administrative Agent;
(h) deliver Company and the Operating Partnership, the landlord under the Xxxxxx Ground Lease will have good and marketable title to the Administrative Agent property demised thereunder, free and clear of all default liens, security interests, pledges, charges, encumbrances, encroachments, restrictions, mortgages and other material notices received defects, except as disclosed in the Time of Sale Prospectus or except those which do not materially and adversely affect the value of such property and do not interfere with the use made or proposed to be made of such property by it or sent by it the tenant under the applicable ground lease or easement agreement;
(i) at Administrative Agent’s request, provide to Administrative Agent any information or materials relating to such ground lease or easement agreement and evidencing such Loan Party’s due observance and performance of its obligations thereunder;
(j) not permit or consent to the subordination of such ground lease or easement agreement to any mortgage or other leasehold interest of the premises related thereto;
(k) execute and deliver (to the extent permitted to do so under such ground lease or easement agreement), upon the request of the Administrative Agent, any documents, instruments or agreements as may be required to permit the Administrative Agent to cure any default under such ground lease or easement agreement;
(l) provide to Administrative Agent written notice of its intention to exercise any option or renewal or extension rights with respect to such ground lease or easement at least thirty (30) days prior to the expiration of the time to exercise such right or option and, upon the direction of the Administrative Agent, duly exercise any renewal or extension option with respect to any such ground lease or easement (provided, that Borrower and each Loan Party hereby appoints the Administrative Agent its attorney-in-fact, coupled with an interest, to execute and deliver, for and in the name of such Person, all instruments, documents or agreements necessary to extend or renew any such ground lease or easement;
(m) not treat, in connection with the bankruptcy or other insolvency proceedings of any ground lessor or other obligor, any ground lease or easement agreement as terminated, cancelled or surrendered pursuant to the Bankruptcy Code without the Administrative Agent’s prior written consent;
(n) 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 or easement agreement within the applicable time period therefore in such proceedings, notwithstanding any rejection by such ground lessor or obligor or trustee, custodian or receiver related thereto;
(o) provide to the Administrative Agent not less than thirty (30) days prior written notice of the date on which the applicable Loan Party shall apply to any court or other governmental authority for authority or permission to reject the applicable ground lease or easement agreement in the event that there shall be filed by or against any Loan Party any petition, action or proceeding under the Bankruptcy Code or any similar federal or state law; provided, that the Administrative Agent shall have the right, but not the obligation, to serve upon the applicable Loan Party within such thirty (30) day period a notice stating that (i) the Administrative Agent demands that such Loan Party assume and the assign the relevant ground lease or easement agreement to the Administrative Agent subject to an in accordance with the Bankruptcy Code and (ii) the Administrative Agent covenants to cure or provide reasonably adequate assurance thereof with respect to all defaults susceptible of being cured by the Administrative Agent and of future performance under the applicable ground lease or easement agreement; provided, further, that if the Administrative Agent serves such notice upon the applicable Loan Party, such Loan Party shall not seek to reject the applicable agreement and shall promptly comply with such demand;
(p) permit the Administrative Agent (at its option), during the continuance of any Event of Default, to (i) perform and comply with all obligations under the applicable ground lease or easement agreement; (ii) do and take such action as the Administrative Agent deems necessary or desirable to prevent or cure any default by such Loan Party under such ground lease or easement agreement and (iii) enter in and upon the applicable premises related to such ground lease or easement agreement to the extent and as often as the Administrative Agent deems necessary or desirable in order to prevent or cure any default under the applicable ground lease or easement agreement;
(q) in the event of any arbitration, court or other adjudicative proceedings under or with respect to any such ground lease or easement agreement, permit the Administrative Agent (at its option) to exercise all right, title and interest of the applicable Loan Party in connection with such proceedings; provided, that (i) Borrower and each other Loan Party hereby irrevocably appoint the Administrative Agent as their attorney-in-fact (which appointment shall be deemed coupled with an interest) to exercise such right, interest and title and (ii) the Loan Parties shall bear all costs, fees and expenses related to such proceedings; provided, further, that each Loan Party hereby further agrees that the Administrative Agent shall have the right, but not the obligation, to proceed in respect of any claim, suit, action or proceeding relating to the rejection of any of the ground leases or easement agreements referenced above by the relevant ground lessor or obligor as a result of bankruptcy or similar proceedings (including, without limitation, the right to file and prosecute all proofs of claims, complaints, notices and other documents in any such bankruptcy case or similar proceeding); and
(r) deliver to the Administrative Agent (or, subject to the requirements of the subject ground lease, cause the applicable lessor or other obligor to deliver to the Administrative Agent) an estoppel certificate in relation to such ground lease or easement agreement in form and substance acceptable to the Administrative Agent, in its discretion, and, in any case, setting forth (i) the name of lessee and lessor under the ground lease (if applicable); (ii) that such ground lease or easement agreement is in full force and effect and has not been modified except to the extent Administrative Agent has received notice of such modification; (iii) that no rental and other payments due thereunder are delinquent as of the date of such estoppelXxxxxx Ground Lease; and (ivvi) whether such Person knows to the knowledge of the Company and the Operating Partnership, except for any actual or alleged defaults or events of default mortgage loan encumbering the property demised under the applicable ground lease Xxxxxx Ground Lease and described in the Time of Sale Prospectus, the Xxxxxx Ground Lease will not have been assigned, mortgaged, pledged, sublet, hypothecated or easement agreement; provided, that each Loan Party hereby agrees to execute and deliver to Administrative Agent, within ten (10) days of any request therefor, such documents, instruments, agreements, assignments or other conveyances reasonably requested by the Administrative Agent in connection with or in furtherance of any of the provisions set forth above or the rights granted to the Administrative Agent in connection therewithotherwise encumbered.
Appears in 1 contract
Samples: Underwriting Agreement (Legacy Healthcare Properties Trust Inc.)
Ground Leases. Shall (and Borrower shall cause such Loan Parties to)Receipt of, with respect to any ground lease related each Ground Lease agreed to any Borrowing Base Property or material easement agreements in favor of such Loan Party and related to any Borrowing Base Property (as applicable):
(a) pay when due by the rent and other amounts due and payable thereunder (subject to applicable cure or grace periods);
(b) timely perform and observe all of the material termsParties, covenants and conditions required to be performed and observed by it as tenant thereunder (subject to applicable cure or grace periods);
(c) do all things necessary to preserve and keep unimpaired such ground lease or easement agreement and its rights thereunder;
(d) not waive, excuse or discharge any of the material obligations of the lessor or other obligor thereunder;
(e) diligently and continuously enforce the material obligations of the lessor or other obligor thereunder;
(f) not do, permit or suffer (i) any act, event or omission which would be likely to result in a default or permit the applicable lessor or other obligor to terminate or exercise any other remedy with respect to the applicable ground lease or easement or Ground Lease Approval Documents and (ii) any act, event or omission which, with the giving of notice or the passage of time, or both, would constitute a default or permit the lessor or such other obligor to exercise any other remedy under the applicable agreement;
(g) cancel, terminate, surrender, modify or amend any Ground Lessor’s Consent. If each of the provisions conditions to Seller’s obligation to consummate the Closing as set forth in Section 5.2 above have been fulfilled and the Closing contemplated by this Agreement shall not occur as a result of any Seller’s breach of this Agreement such ground lease or easement or agree to any termination, amendment, modification or surrender thereof without that the prior written consent of the Administrative Agent;
conditions described in Section 5.3(b) (h) deliver to the Administrative Agent all default and other material notices received by it or sent by it under the applicable ground lease or easement agreement;
(i) at Administrative Agent’s request, provide to Administrative Agent any information or materials relating to such ground lease or easement agreement and evidencing such Loan Party’s due observance and performance of its obligations thereunder;
(j) not permit or consent to the subordination of such ground lease or easement agreement to any mortgage or other leasehold interest of the premises related thereto;
(k) execute and deliver (to the extent permitted to do so under such ground lease or easement agreement), upon the request of the Administrative Agent, any documents, instruments or agreements as may be required to permit the Administrative Agent to cure any default under such ground lease or easement agreement;
(l) provide to Administrative Agent written notice of its intention to exercise any option or renewal or extension rights with respect to such ground lease or easement at least thirty (30) days prior to the expiration of the time to exercise such right or option and, upon the direction of the Administrative Agent, duly exercise any renewal or extension option with respect to any such ground lease or easement (provided, that Borrower and each Loan Party hereby appoints the Administrative Agent its attorney-in-fact, coupled with an interest, to execute and deliver, for and in the name of such Person, all instruments, documents or agreements necessary to extend or renew any such ground lease or easement;
(m) not treat, in connection with the bankruptcy or other insolvency proceedings intentional breach of any ground lessor representation or other obligorwarranty made by Seller in Article 4 above), any ground lease Section 5.3(c), or easement agreement Section 5.3(d) above as terminated, cancelled or surrendered pursuant to the Bankruptcy Code without the Administrative Agent’s prior written consent;
(n) 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 or easement agreement within Closing Date (as may be extended as expressly provided in this Agreement) would not be satisfied at the applicable time period therefore in such proceedingsClosing, notwithstanding any rejection by such ground lessor or obligor or trustee, custodian or receiver related thereto;
(o) provide to the Administrative Agent not less than thirty (30) days prior written notice of the date on which the applicable Loan Party shall apply to any court or other governmental authority for authority or permission to reject the applicable ground lease or easement agreement in the event that there then Seller shall be filed by or against any Loan Party any petitiondeemed to be in default under this Agreement, action or proceeding under the Bankruptcy Code or any similar federal or state law; provided, that the Administrative Agent and Buyer shall have the right, but not right to pursue any of the obligation, remedies to serve upon which it may be entitled pursuant to Section 6.1 hereof. If the applicable Loan Party within such thirty conditions described in Section 5.3(a) or Section 5.3(b) (30) day period a notice stating that (i) the Administrative Agent demands that such Loan Party assume and the assign the relevant ground lease or easement agreement to the Administrative Agent subject to an in accordance with the Bankruptcy Code and (ii) the Administrative Agent covenants to cure or provide reasonably adequate assurance thereof with respect to all defaults susceptible of being cured by the Administrative Agent and of future performance under the applicable ground lease or easement agreement; provided, further, that if the Administrative Agent serves such notice upon the applicable Loan Party, such Loan Party shall not seek to reject the applicable agreement and shall promptly comply with such demand;
(p) permit the Administrative Agent (at its option), during the continuance of any Event of Default, to (i) perform and comply with all obligations under the applicable ground lease or easement agreement; (ii) do and take such action as the Administrative Agent deems necessary or desirable to prevent or cure any default by such Loan Party under such ground lease or easement agreement and (iii) enter in and upon the applicable premises related to such ground lease or easement agreement to the extent and as often as the Administrative Agent deems necessary or desirable in order to prevent or cure any default under the applicable ground lease or easement agreement;
(q) in the event of any arbitration, court or other adjudicative proceedings under or with respect to any such ground lease non-fulfillment other than any intentional breach of any representation or easement agreementwarranty made by Seller in Article 4 above), permit the Administrative Agent (at its optionSection 5.3(e), Section 5.3(f), Section 5.3(g), or Section 5.3(h) to exercise all right, title and interest above are not fulfilled as of the applicable Loan Party Closing Date (as may be extended as expressly provided in connection with such proceedings; providedthis Agreement), that (i) Borrower and each other Loan Party hereby irrevocably appoint the Administrative Agent as their attorney-in-fact (which appointment shall be deemed coupled with an interest) to exercise such right, interest and title and (ii) the Loan Parties shall bear all costs, fees and expenses related to such proceedings; provided, further, that each Loan Party hereby further agrees that the Administrative Agent then Buyer shall have the rightright to terminate this Agreement, but not whereupon this Agreement, and the obligation, to proceed in respect obligations of the Parties hereunder shall terminate without further action of any claimParty (and no Party shall have any further obligation in connection herewith except for Obligations Surviving Termination), suitand the Deposit shall be released to Buyer by Escrow Agent. Notwithstanding the foregoing, action or proceeding relating to the rejection of if any of the ground leases conditions are not satisfied because of a default by Seller of its obligations under this Agreement or easement agreements referenced above by due to any action by, or at the relevant ground lessor direction of, Seller with the intent or obligor as a result purpose of bankruptcy or similar proceedings (includingfrustrating any closing condition, without limitation, then Buyer shall have the right to file and prosecute all proofs of claims, complaints, notices and other documents exercise the remedies set forth in any such bankruptcy case or similar proceeding); and
(r) deliver Section 6.1 hereof. Unless specifically set forth herein to the Administrative Agent contrary, Seller shall not be responsible for obtaining (or, subject or causing any Hotel Owner to obtain) the consent of any party to the requirements assignment of the subject ground leaseany Existing Loan, cause the applicable lessor Ground Lease, Franchise Agreement, Hotel Management Agreement, Hotel Contract, environmental report, engineering report, guaranty, warranty, or other obligor to deliver to the Administrative Agent) an estoppel certificate in relation assignment of any other document or agreement to such ground lease or easement agreement in form and substance acceptable to the Administrative Agent, in its discretion, Buyer and, in clarification thereof, if any case, setting forth (i) the name of lessee such consent is required by any party to such document or agreement and lessor under the ground lease (if applicable); (ii) that such ground lease or easement agreement it is in full force and effect and has not been modified except to the extent Administrative Agent has received notice of such modification; (iii) that no rental and other payments due thereunder are delinquent as of the date of such estoppel; and (iv) whether such Person knows of any actual or alleged defaults or events of default under the applicable ground lease or easement agreement; provided, that each Loan Party hereby agrees to execute and deliver to Administrative Agent, within ten (10) days of any request therefor, such documents, instruments, agreements, assignments or other conveyances reasonably requested obtained by the Administrative Agent in connection with Closing Date, Seller shall not be responsible for assigning (or in furtherance of causing any of Hotel Owner to assign) such document or agreement to Buyer and the provisions set forth above failure to so assign such document or the rights granted agreement shall not be considered a default hereunder or a failure to the Administrative Agent in connection therewithsatisfy any condition hereof.
Appears in 1 contract
Ground Leases. Shall (and Borrower shall cause such Loan Parties to), with respect to any ground lease related to any Borrowing Base Property or material easement agreements in favor of such Loan Party and related to any Borrowing Base Property (as applicable):
(a) pay when due the rent With respect to each Ground Lease, Borrower covenants and other amounts due agrees as follows: (i) to promptly and payable thereunder (subject to applicable cure or grace periods);
(b) timely faithfully observe, perform and observe comply with all of the material terms, covenants and conditions required provisions thereof on its part to be observed, performed and observed by it as tenant thereunder (subject complied with, at the times set forth therein, and to applicable cure or grace periods);
(c) do all things necessary to preserve and keep unimpaired such ground lease or easement agreement and its rights thereunder;; (ii) not to do, permit, suffer or refrain from doing anything, as a result of which there could be a default under or breach of any of the terms thereof; (iii) not to terminate (pursuant to the terms thereof or otherwise), cancel, surrender, modify, amend or in any way alter or permit the alteration of any of the terms thereof and not to release the Ground Lessor under such Ground Lease from any obligations imposed upon it thereby; (iv) not to assign such Ground Lease in whole or in part nor sublet the premises demised under such Ground Lease in whole except in accordance with the provisions of this Agreement; (v) to give Lender prompt written notice of any default by Borrower or the Ground Lessor under such Ground Lease and to promptly deliver to Lender copies of each notice of default and all other material notices, communications, plans, specifications and other similar instruments received or delivered by Borrower in connection therewith; and (vi) to furnish to Lender such information and evidence as Lender may reasonably require concerning Borrower’s due observance, performance and compliance with the terms, covenants and provisions thereof.
(b) In the event of any default by Borrower in the performance of any part of its obligations under any Ground Lease, including, without limitation, any default in the payment of rent, additional rent and other charges and impositions made payable by the tenant thereunder, then, in each and every case, Lender may, at its option and without notice, cause the default or defaults to be remedied and otherwise exercise any and all of the rights of Borrower thereunder in the name of and on behalf of Borrower but no such action by Lender shall release Borrower from any default under this Agreement. Borrower shall, on demand, reimburse Lender for all advances made and expenses incurred by Lender in curing any such default (including, without limitation, reasonable attorneys’ fees and disbursements), together with interest thereon 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 and such monies so expended by Lender with interest thereon shall be secured by this Agreement.
(c) If Borrower acquires the fee title or any other estate, title or interest in any Ground Lease Property, or any part thereof, the lien of the Fee and Leasehold Deed of Trust shall attach to, cover and be a lien upon such acquired estate, title or interest and same shall thereupon be and become a part of the Property. Borrower agrees to execute all instruments and documents which Lender may reasonably require to ratify, confirm and further evidence Lender’s lien on the acquired estate, title or interest. Furthermore, Borrower hereby appoints Lender its true and lawful attorney-in-fact to execute and deliver all such instruments and documents in the name and on behalf of Borrower. This power, being coupled with an interest, shall be irrevocable as long as the Debt remains unpaid.
(d) not waiveIf any Ground Lease is canceled or terminated, excuse and if Lender or discharge its nominee shall acquire an interest in any new lease or all or any part of any Ground Lease Property, Borrower shall have no right, title or interest in or to the material obligations of new lease or the lessor or other obligor thereunder;leasehold estate created by such new lease.
(e) diligently Borrower shall obtain and continuously enforce the material obligations of the lessor or other obligor thereunder;
deliver to Lender from time to time within thirty (f30) not dodays after written demand by Lender, permit or suffer (i) an estoppel certificate from any actGround Lessor setting forth, event or omission which would be likely to result in a default or permit the applicable lessor or other obligor to terminate or exercise any other remedy with respect to the applicable ground lease or easement or related Ground Lease (i) the name of the tenant thereunder, (ii) that such Ground Lease has not been modified or, if it has been modified, the date of each modification (together with copies of each such modification), (iii) the base rent and additional rent and other charges payable under such Ground Lease, (iv) the date to which all rental charges have been paid by the tenant under the Ground Lease, and (v) whether there are any actdefaults or alleged defaults of the tenant under such Ground Lease or if there are any events which have occurred which with notice, event or omission which, with the giving of notice or the passage of time, time or both, would constitute a default under such Ground Lease, and, if there are, setting forth the nature thereof in reasonable detail.
(f) Notwithstanding anything to the contrary contained herein, this Agreement shall not constitute an assignment of any Ground Lease within the meaning of any provision thereof prohibiting its assignment and Lender shall have no liability or permit obligation thereunder by reason of its acceptance of this Agreement. Lender shall be liable for the lessor obligations of the tenant arising under a Ground Lease for only that period of time which Lender is in possession of the related Ground Lease Property and has acquired, by foreclosure or such other obligor to exercise any other remedy under the applicable agreement;otherwise, and is holding all of Borrower’s right, title and interest therein.
(g) cancel, terminate, surrender, modify No release or amend forbearance of any of Borrower’s obligations under any Ground Lease, pursuant to such Ground Lease or otherwise, shall release Borrower from any of its obligations under this Agreement or the other Loan Documents.
(h) Borrower shall enforce the obligations of a Ground Lessor under its related Ground Lease to the end that Borrower may enjoy all of the rights granted to it under such Ground Lease, and will immediately notify Lender of any default by such Ground Lessor or Borrower in the performance or observance of any of the terms, covenants and conditions of such Ground Lease and Borrower will immediately advise Lender of the occurrence of any of the events of default enumerated in such Ground Lease and of the giving of any notice by a Ground Lessor under the related Ground Lease to Borrower of any default by Borrower thereunder and will immediately deliver to Lender a true copy of each such notice. If, pursuant to any Ground Lease, the related Ground Lessor shall deliver to Lender a copy of any notice of default given to Borrower, as lessee under such Ground Lease, such notice shall constitute full authority and protection to Lender for any action taken or omitted to be taken by Lender, in good faith and in reliance thereon.
(i) Borrower shall give Lender immediate notice of the commencement of any arbitration or appraisal proceeding under and pursuant to the provisions of any Ground Lease. Lender shall have the right to intervene and participate in any such ground lease proceeding and Borrower shall confer with Lender and its attorneys and experts and cooperate with them to the extent that Lender deems reasonably necessary for the protection of Lender.
(j) Upon the request of Lender, Borrower will exercise all rights of arbitration conferred upon it by any Ground Lease. If at any time such proceeding shall be continuing, a default by Borrower beyond any applicable cure period in the performance or easement observance of any covenant, condition or agree other requirement of such Ground Lease or of this Agreement, on the part of Borrower to be performed or observed shall have occurred and be continuing, Lender shall have, and is hereby granted, the sole and exclusive right to designate and appoint on behalf of Borrower, the arbitrator or arbitrators, or appraiser, in such proceeding.
(k) Borrower will, promptly after the execution and delivery of this Agreement or of any terminationinstrument or agreement supplemental hereto, amendmentnotify each Ground Lessor in writing of the execution and delivery hereof and deliver to each Ground Lessor a copy of each such instrument or agreement.
(l) Borrower hereby unconditionally and irrevocably assigns to Lender (i) any right which Borrower has pursuant of the terms of the Ground Lease to renew and/or extend the term thereof, modification (ii) any right which Borrower has pursuant to the terms of the Ground Lease to cancel or surrender terminate the Ground Lease, and (iii) any option or right that Borrower has pursuant to the Ground Lease to purchase any or all of the premises demised thereunder; provided, however, that Lender shall not exercise any rights given it under the foregoing items (i) or (iii) in the absence of an existing Event of Default or in the event Lender reasonably determines that such exercise is necessary to protect its interest in the Ground Lease Property.
(m) In the event that it is claimed by any governmental agency, authority or subdivision that any tax or governmental charge or imposition is due, unpaid or payable by Borrower upon or in connection with a Ground Lease, Borrower shall promptly either (i) pay such tax, charge or imposition when due and deliver to Lender reasonably satisfactory proof of payment thereof or (ii) contest such tax in accordance with the applicable provisions of the Loan Documents. If liability for such tax is asserted against Lender, Lender will give to Borrower prompt notice of such claim, and Borrower, upon complying with the provisions of the Loan Documents shall have full right and authority to contest such claim of taxability.
(n) Notwithstanding anything to the contrary contained in this Agreement with respect to each Ground Lease:
(i) If any Ground Lease is terminated for any reason in the event of the rejection or disaffirmance of such Ground Lease by the related Ground Lessor pursuant to the Bankruptcy Code, or any other law affecting creditor’s rights, (i) Borrower, immediately after obtaining notice thereof, shall give notice thereof to Lender, (ii) Borrower, without the prior written consent of the Administrative Agent;
(h) deliver Lender, shall not elect to the Administrative Agent all default and other material notices received by it or sent by it under the applicable ground lease or easement agreement;
(i) at Administrative Agent’s request, provide to Administrative Agent any information or materials relating to treat such ground lease or easement agreement and evidencing such Loan Party’s due observance and performance of its obligations thereunder;
(j) not permit or consent to the subordination of such ground lease or easement agreement to any mortgage or other leasehold interest of the premises related thereto;
(k) execute and deliver (to the extent permitted to do so under such ground lease or easement agreement), upon the request of the Administrative Agent, any documents, instruments or agreements Ground Lease as may be required to permit the Administrative Agent to cure any default under such ground lease or easement agreement;
(l) provide to Administrative Agent written notice of its intention to exercise any option or renewal or extension rights with respect to such ground lease or easement at least thirty (30) days prior to the expiration of the time to exercise such right or option and, upon the direction of the Administrative Agent, duly exercise any renewal or extension option with respect to any such ground lease or easement (provided, that Borrower and each Loan Party hereby appoints the Administrative Agent its attorney-in-fact, coupled with an interest, to execute and deliver, for and in the name of such Person, all instruments, documents or agreements necessary to extend or renew any such ground lease or easement;
(m) not treat, in connection with the bankruptcy or other insolvency proceedings of any ground lessor or other obligor, any ground lease or easement agreement as terminated, cancelled or surrendered terminated pursuant to Section 365(h) of the Bankruptcy Code or any comparable federal or state statute or law, and any election by Borrower made without such consent shall be void, and (iii) the Administrative Agentterms, covenants and conditions of this Loan Agreement and the Loan Documents hereby extends to and covers Borrower’s prior written consent;
(npossessory rights under Section 365(h) in connection with of the bankruptcy Bankruptcy Code and to any claim for damages due to the rejection of such Ground Lease or other insolvency proceedings termination of such Ground Lease. In addition, Borrower hereby assigns irrevocably to Lender Borrower’s rights to treat any ground lessor or other obligor, ratify the legality, binding effect and enforceability Ground Lease as terminated pursuant to Section 365(h) of the applicable ground lease or easement agreement within the applicable time period therefore in Bankruptcy Code and to offset rents under such proceedings, notwithstanding any rejection by such ground lessor or obligor or trustee, custodian or receiver related thereto;
(o) provide to the Administrative Agent not less than thirty (30) days prior written notice of the date on which the applicable Loan Party shall apply to any court or other governmental authority for authority or permission to reject the applicable ground lease or easement agreement Ground Lease in the event that there shall be filed any case, proceeding or other action is commenced by or against any Loan Party any petition, action or proceeding the related Ground Lessor under the Bankruptcy Code or any similar comparable federal or state statute or law; provided. Without Lender’s prior written consent, that the Administrative Agent shall have the right, but not the obligation, to serve upon the applicable Loan Party within such thirty (30) day period a notice stating that (i) the Administrative Agent demands that such Loan Party assume and the assign the relevant ground lease or easement agreement to the Administrative Agent subject to an in accordance with the Bankruptcy Code and (ii) the Administrative Agent covenants to cure or provide reasonably adequate assurance thereof with respect to all defaults susceptible of being cured by the Administrative Agent and of future performance under the applicable ground lease or easement agreement; provided, further, that if the Administrative Agent serves such notice upon the applicable Loan Party, such Loan Party Borrower shall not seek to reject offset, pursuant to Subsection 365(h) of the applicable agreement and shall promptly comply with such demand;
(p) permit Bankruptcy Code, against the Administrative Agent (at rent reserved in its option)Ground Lease, during the continuance amount of any Event damages caused by the nonperformance by the related Ground Lessor of Default, to (i) perform and comply with all any of its obligations under its related Ground Lease after the applicable ground lease or easement agreement; rejection by such Ground Lessor of such Ground Lease under the Bankruptcy Code.
(ii) do As security for the Debt, Borrower unconditionally assigns, transfers and take such action as sets over to Lender all of Borrower’s (a) right to reject any Ground Lease under Section 365 of the Administrative Agent deems necessary Bankruptcy Code or desirable to prevent any comparable federal or cure any default by such Loan Party under such ground lease state statute or easement agreement and (iii) enter in and upon the applicable premises related to such ground lease or easement agreement to the extent and as often as the Administrative Agent deems necessary or desirable in order to prevent or cure any default under the applicable ground lease or easement agreement;
(q) in the event of any arbitration, court or other adjudicative proceedings under or law with respect to any such ground lease case, proceeding or easement agreementother action commenced by or against Borrower under the Bankruptcy Code or comparable federal or state statute or law, permit the Administrative Agent (at its optionb) right to exercise all right, title and interest seek an extension of the applicable Loan Party in connection 60-day period within which Borrower must assume or reject any Ground Lease under Section 365 of the Bankruptcy Code or any comparable federal or state statue or law with such proceedings; providedrespect to any case, that (i) proceeding or other action commenced by or against Borrower and each other Loan Party hereby irrevocably appoint under the Administrative Agent as their attorney-in-fact (which appointment shall be deemed coupled with an interest) to exercise such right, interest and title Bankruptcy Code or comparable federal or state statute or law ,and (iic) claims and rights to the Loan Parties shall bear all costs, fees and expenses payment of damages arising from any rejection by a Ground Lessor of its related to such proceedings; provided, further, that each Loan Party hereby further agrees that Ground Lease under the Administrative Agent Bankruptcy Code. Lender shall have the right, but not the obligation, right to proceed in the name of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of any of the ground leases or easement agreements referenced above by the relevant ground lessor or obligor as a result of bankruptcy or similar proceedings (Ground Lease, including, without limitation, the right to file and prosecute all any proofs of claimsclaim, 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 Debt shall have been satisfied and discharged in full. Any amounts received by Lender or Borrower as damages arising out of the rejection of any Ground Lease as aforesaid shall be applied to all costs and expenses of Lender (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 of this Agreement. If the foregoing assignment is not effective under applicable law and Borrower shall desire to so reject any Ground Lease, at Lender’s request, Borrower shall assign its interest in such bankruptcy case or similar proceeding); andGround Lease to Lender in lieu of rejecting the Ground Lease, upon receipt by Borrower of notice from Lender of such request together with Lender’s agreement to cure any existing defaults of Borrower under such Ground Lease.
(riii) deliver to the Administrative Agent (orIf any action, subject to the requirements proceeding, motion or notice shall be commenced or filed in respect of any Ground Lessor of all or any part of the subject ground leaseGround Lease Property in connection with any case under the Bankruptcy Code, cause 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 applicable lessor cooperative prosecution or other obligor conduct of any such proceedings. All such costs and expenses shall be deemed to deliver be secured by the Loan Documents.
(iv) Borrower shall promptly, after obtaining knowledge of such filing, notify Lender orally of any filing by or against any Ground Lessor of a petition under the Bankruptcy Code. Borrower shall thereafter promptly give written notice of such filing to the Administrative Agent) an estoppel certificate in relation to such ground lease or easement agreement in form and substance acceptable to the Administrative Agent, in its discretion, and, in any caseLender, setting forth (i) the name of lessee and lessor under the ground lease (if applicable); (ii) that such ground lease or easement agreement is in full force and effect and has not been modified except any information available to the extent Administrative Agent has received notice of such modification; (iii) that no rental and other payments due thereunder are delinquent Borrower as of to the date of such estoppel; filing, the court in which such petition was filed, and (iv) whether the relief sought in such Person knows of any actual or alleged defaults or events of default under the applicable ground lease or easement agreement; provided, that each Loan Party hereby agrees to execute and filing. Borrower shall promptly deliver to Administrative AgentLender any and all notices, within ten (10) days of any request thereforsummonses, such documentspleadings, instruments, agreements, assignments or applications and other conveyances reasonably requested documents received by the Administrative Agent Borrower in connection with or in furtherance of any of the provisions set forth above or the rights granted such petition and any proceedings relating to the Administrative Agent in connection therewithsuch petition.
Appears in 1 contract
Samples: Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)
Ground Leases. Shall (and Borrower shall cause such Loan Parties to), with respect to any ground lease related to any Borrowing Base Property or material easement agreements in favor of such Loan Party and related to any Borrowing Base Property (as applicable):
(a) pay when due Each Ground Lease is in full force and effect in accordance with the rent terms thereof, and other amounts due has not been modified except as expressly set forth on Exhibit B hereto. Mortgagor has delivered to the Mortgagee a true, correct and payable thereunder (subject to applicable cure or grace periods);
(b) timely perform and observe all complete copy of each Ground Lease. To the best knowledge of the Mortgagor, no material termsdefault exists, covenants and conditions required to be performed and observed by it as tenant thereunder (subject to applicable cure or grace periods);
(c) do all things necessary to preserve and keep unimpaired such ground lease or easement agreement and its rights thereunder;
(d) not waive, excuse or discharge any of the material obligations of the lessor or other obligor thereunder;
(e) diligently and continuously enforce the material obligations of the lessor or other obligor thereunder;
(f) not do, permit or suffer (i) any act, no event or omission act has occurred and no condition exists which would be likely to result in a default with the passage of time or permit the applicable lessor or other obligor to terminate or exercise any other remedy with respect to the applicable ground lease or easement or (ii) any act, event or omission which, with the giving of notice or the passage of time, or both, both would constitute a default or permit material default, under any Ground Lease. The execution and delivery of this Mortgage by the lessor or such other obligor to exercise any other remedy under the applicable agreement;
(g) cancel, terminate, surrender, modify or amend any of the provisions of any such ground lease or easement or agree to any termination, amendment, modification or surrender thereof without the prior written consent of the Administrative Agent;
(h) deliver to the Administrative Agent all default and other material notices received by it or sent by it under the applicable ground lease or easement agreement;
Mortgagor (i) does not require the consent or approval of the landlord under any Ground Lease, and (ii) will not violate or result in a default under any Ground Lease.
(b) The Mortgagor shall at Administrative all times promptly and faithfully keep and perform, or 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 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 Ground Lease.
(c) The Mortgagor shall furnish to any Agent’s , promptly upon such Agent's request, provide any and all information concerning the performance by the Mortgagor and the landlord under any Ground Lease of the 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 Administrative Agent cure, in whole or in part, any information failure of compliance by the Mortgagor under any Ground Lease; and upon the receipt by the Mortgagee from the Mortgagor or materials relating the landlord under any Ground Lease of any written notice of default by the Mortgagor as the lessee thereunder, the Mortgagee may rely thereon, and such notice shall constitute full authority and protection to the 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 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 ground lease extent and as often as the Mortgagee, in its discretion, deems necessary or easement agreement and evidencing such Loan Party’s due observance and performance of its obligations thereunder;
(j) not permit or consent to the subordination of such ground lease or easement agreement to any mortgage or other leasehold interest of the premises related thereto;
(k) execute and deliver (to the extent permitted to do so under such ground lease or easement agreement), upon the request of the Administrative Agent, any documents, instruments or agreements as may be required to permit the Administrative Agent desirable in order to cure any default or alleged default by the Mortgagor under such ground lease or easement agreement;any Ground Lease.
(le) provide to Administrative Agent written notice of its intention to exercise any option or renewal or extension rights with respect to such ground lease or easement at least thirty (30) days prior to Upon the expiration of the time to exercise such right or option and, upon the direction of the Administrative Agent, duly exercise any renewal or extension option with respect to any such ground lease or easement (provided, that Borrower occurrence and each Loan Party hereby appoints the Administrative Agent its attorney-in-fact, coupled with an interest, to execute and deliver, for and in the name of such Person, all instruments, documents or agreements necessary to extend or renew any such ground lease or easement;
(m) not treat, in connection with the bankruptcy or other insolvency proceedings of any ground lessor or other obligor, any ground lease or easement agreement as terminated, cancelled or surrendered pursuant to the Bankruptcy Code without the Administrative Agent’s prior written consent;
(n) 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 or easement agreement within the applicable time period therefore in such proceedings, notwithstanding any rejection by such ground lessor or obligor or trustee, custodian or receiver related thereto;
(o) provide to the Administrative Agent not less than thirty (30) days prior written notice of the date on which the applicable Loan Party shall apply to any court or other governmental authority for authority or permission to reject the applicable ground lease or easement agreement in the event that there shall be filed by or against any Loan Party any petition, action or proceeding under the Bankruptcy Code or any similar federal or state law; provided, that the Administrative Agent shall have the right, but not the obligation, to serve upon the applicable Loan Party within such thirty (30) day period a notice stating that (i) the Administrative Agent demands that such Loan Party assume and the assign the relevant ground lease or easement agreement to the Administrative Agent subject to an in accordance with the Bankruptcy Code and (ii) the Administrative Agent covenants to cure or provide reasonably adequate assurance thereof with respect to all defaults susceptible of being cured by the Administrative Agent and of future performance under the applicable ground lease or easement agreement; provided, further, that if the Administrative Agent serves such notice upon the applicable Loan Party, such Loan Party shall not seek to reject the applicable agreement and shall promptly comply with such demand;
(p) permit the Administrative Agent (at its option), during the continuance of any Event of Default, to (i) perform and comply with all obligations under the applicable ground lease or easement agreement; (ii) do and take such action as the Administrative Agent deems necessary or desirable to prevent or cure any default by such Loan Party under such ground lease or easement agreement and (iii) enter in and upon the applicable premises related to such ground lease or easement agreement to the extent and as often as the Administrative Agent deems necessary or desirable in order to prevent or cure any default under the applicable ground lease or easement agreement;
(q) in the event of any arbitration, court or other adjudicative proceedings under or with respect to any such ground lease or easement agreement, permit the Administrative Agent (at its option) to exercise all right, title and interest of the applicable Loan Party in connection with such proceedings; provided, that (i) Borrower and each other Loan Party hereby irrevocably appoint the Administrative Agent as their attorney-in-fact (which appointment shall be deemed coupled with an interest) to exercise such right, interest and title and (ii) the Loan Parties shall bear all costs, fees and expenses related to such proceedings; provided, further, that each Loan Party hereby further agrees that the Administrative Agent shall have the right, but not the obligation, to proceed in respect of any claim, suit, action or proceeding relating to the rejection of any of the ground leases or easement agreements referenced above by the relevant ground lessor or obligor as a result of bankruptcy or similar proceedings 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 file the Mortgagee, shall automatically vest exclusively in and prosecute 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 proofs such other and further assurances or other instruments in writing as may in the reasonable opinion of claimsthe Agents be necessary or appropriate to effect 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, complaintsor any action or proceeding otherwise affecting any Ground Lease or this Mortgage shall be instituted, notices 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 connection with any such bankruptcy case or similar proceeding); andpetition and any proceedings relating thereto.
(r) deliver to the Administrative Agent (or, subject to the requirements of the subject ground lease, cause the applicable lessor or other obligor to deliver to the Administrative Agent) an estoppel certificate in relation to such ground lease or easement agreement in form and substance acceptable to the Administrative Agent, in its discretion, and, in any case, setting forth (i) If there shall be filed by or against the name of lessee and lessor Mortgagor a petition under the ground lease Bankruptcy Code, the 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.
(if applicable); (iij) that such ground lease or easement agreement is in full force and effect and has not been modified except Effective upon the entry of an order for relief with respect to the extent Administrative Agent has received notice of such modification; (iiiMortgagor 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) that no rental and other payments due thereunder are delinquent as of the date of such estoppel; and Bankruptcy Code for an order extending the period during which any Ground Lease may be rejected or assumed.
(ivk) whether such Person knows of any actual No release or alleged defaults or events of default under the applicable ground lease or easement agreement; provided, that each Loan Party hereby agrees to execute and deliver to Administrative Agent, within ten (10) days of any request therefor, such documents, instruments, agreements, assignments or other conveyances reasonably requested by the Administrative Agent in connection with or in furtherance forbearance of any of the provisions set forth above 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 rights granted to the Administrative Agent in connection therewithother Secured Obligations.
Appears in 1 contract
Ground Leases. Shall (and a) Borrower shall cause such Loan Parties Mezzanine A Borrower to cause Owner to), with respect to any ground lease related to any Borrowing Base Property or material easement agreements in favor of such Loan Party and related to any Borrowing Base Property (as applicable)::
(ai) pay when due the rent all rents, additional rents and other amounts due sums required to be paid by the applicable Individual Owner, as tenant under and payable thereunder (pursuant to the provisions of the Ground Leases, as and when such rent or other charge is payable, subject to applicable grace periods afforded Owner 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 Owner’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 all of the terms, covenants and conditions of the Ground Leases on the part of the applicable Individual Owner, as tenant thereunder, to be performed and observed, at least three (3) days prior to the expiration of any applicable grace periods);period therein provided; and
(iii) promptly notify Lender of the giving of any written notice by the lessor under the Ground Leases to Owner of any default by Owner in the performance or observance of any of the terms, covenants or conditions of the Ground Leases on the part of Owner, as tenant thereunder, to be performed or observed, and deliver to Lender a true copy of each such notice.
(b) timely Borrower shall not, without the prior consent of Lender (which consent may be withheld by Lender in its sole and absolute discretion), cause Owner to surrender or cause or permit Owner to surrender 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.
(c) If any Individual Owner shall default in the performance or observance of any material term, covenant or condition of any Ground Lease on the part of such Individual Owner, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of the Pledge Agreement, this Agreement and the other Loan Documents, and without waiving or releasing Borrower from any of its Obligations hereunder (but subject to the rights of Mortgage Lender and Mezzanine A Lender), Lender shall have the right, but shall be under no obligation, to pay any sums and to perform and observe any act or take any action as may be necessary or appropriate to cause all of the material terms, covenants and conditions required of the Ground Lease on the part of such Individual Owner, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of such Individual Owner, to the end that the rights of such Individual Owner in, to and observed under 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 it as tenant thereunder Owner or by any party on behalf of Owner. 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 applicable cure the rights of tenants, subtenants and other occupants under the Leases or grace periodsof 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 in accordance with this Section 4.33(c);
(c) do all things necessary to preserve , together with interest thereon from the day of such payment at the Default Rate. All sums so paid and keep unimpaired such ground lease or easement agreement expended by Lender and its rights thereunder;the interest thereon shall be secured by the legal operation and effect of the Pledge Agreement.
(d) not waiveIf any lessor under a Ground Lease shall deliver to Lender a copy of any notice of default sent by said lessor to an Individual Owner, excuse as tenant under such Ground Lease, such notice shall constitute full protection to Lender for any action taken or discharge any omitted to be taken by Lender, in good faith, in reliance thereon and in accordance with Section 4.33(c). Borrower shall cause Owner to exercise each individual option, if any, to extend or renew the term of the material obligations of the lessor Ground Leases upon demand by Lender, Mezzanine A Lender or other obligor thereunder;
Mortgage Lender made at any time within one (e1) diligently and continuously enforce the material obligations of the lessor or other obligor thereunder;
(f) not do, permit or suffer (i) any act, event or omission which would be likely to result in a default or permit the applicable lessor or other obligor to terminate or exercise any other remedy with respect year prior to the applicable ground lease or easement or (ii) last day upon which any actsuch option may be exercised, event or omission whichand if Borrower shall fail to do so, with the giving of notice or the passage of time, or both, would constitute a default or permit the lessor or such other obligor Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any other remedy under such option in the name of and upon behalf of the applicable agreement;
(g) cancelIndividual Owner, terminate, surrender, modify or amend any which power of the provisions of any such ground lease or easement or agree attorney shall be irrevocable and shall be deemed to any termination, amendment, modification or surrender thereof without the prior written consent of the Administrative Agent;
(h) deliver to the Administrative Agent all default and other material notices received by it or sent by it under the applicable ground lease or easement agreement;
(i) at Administrative Agent’s request, provide to Administrative Agent any information or materials relating to such ground lease or easement agreement and evidencing such Loan Party’s due observance and performance of its obligations thereunder;
(j) be coupled with an interest. Borrower will not permit subordinate or consent to the subordination of such ground the Ground Leases to any mortgage, security deed, lease or easement agreement 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) Borrower shall not permit any Individual Owner to, without Lender’s written consent, elect to treat any Ground Lease as terminated under Subsection 365(h)(1) of the U.S. Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(ii) If, pursuant to subsection 365(h) of the Bankruptcy Code, any Individual Owner 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 Owner shall not affect any offset of such amounts unless it shall have provided written notice to Mortgage Lender, Mezzanine A Lender and Lender of its intent to do so and Mortgage Lender, Mezzanine A Lender and Lender shall have consented thereto.
(iii) 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 permit Owner to exercise any Ground Lease Purchase Option with respect to any mortgage or other leasehold interest Ground Lease Property without Lender’s prior written consent; provided each of the premises related theretofollowing conditions is satisfied:
(i) No Event of Default shall have occurred and be continuing;
(kii) execute and deliver Lender shall receive not less than forty-five (to the extent permitted to do so under such ground lease or easement agreement), upon the request 45) days advance written notice of the Administrative Agent, any documents, instruments or agreements as may be related Individual Owner’s intention to exercise such Ground Lease Purchase Option unless such Ground Lease sets forth a shorter time period within which such Individual Owner is required to permit respond in order to exercise such Ground Lease Purchase Option, in which case the Administrative Agent to cure any default under advance notice period hereunder shall instead be such ground lease or easement agreementshorter time period;
(liii) provide to Administrative Agent written notice The related Individual Owner shall comply with all of its intention to exercise any option or renewal or extension rights the terms and conditions of the related Ground Lease with respect to such ground lease or easement at least thirty (30) days prior to the expiration of the time to exercise such right or option and, upon the direction of the Administrative Agent, duly exercise any renewal or extension option with respect to any such ground lease or easement (provided, that Borrower and each Loan Party hereby appoints the Administrative Agent its attorney-in-fact, coupled with an interest, to execute and deliver, for and in the name of such Person, all instruments, documents or agreements necessary to extend or renew any such ground lease or easementGround Lease Purchase Option;
(miv) not treat, in connection with the bankruptcy or other insolvency proceedings of any ground lessor or other obligor, any ground lease or easement agreement as terminated, cancelled or surrendered pursuant Fee title to the Bankruptcy Code without related Ground Lease Property shall be conveyed to the Administrative AgentIndividual Owner who is the ground lessee under such Ground Lease pursuant a bona fide arm’s prior written consent;
(n) length transaction and for fair consideration and such acquisition shall not result in connection with the bankruptcy or other insolvency proceedings of any ground lessor or other obligor, ratify the legality, binding effect and enforceability a merger of the applicable ground lease or easement agreement within the applicable time period therefore fee and leasehold estates in such proceedings, notwithstanding any rejection by such ground lessor or obligor or trustee, custodian or receiver related theretoGround Lease Property;
(o) provide to the Administrative Agent not less than thirty (30) days prior written notice of the date on which the applicable Loan Party shall apply to any court or other governmental authority for authority or permission to reject the applicable ground lease or easement agreement in the event that there shall be filed by or against any Loan Party any petition, action or proceeding under the Bankruptcy Code or any similar federal or state law; provided, that the Administrative Agent shall have the right, but not the obligation, to serve upon the applicable Loan Party within such thirty (30) day period a notice stating that (i) the Administrative Agent demands that such Loan Party assume and the assign the relevant ground lease or easement agreement to the Administrative Agent subject to an in accordance with the Bankruptcy Code and (ii) the Administrative Agent covenants to cure or provide reasonably adequate assurance thereof with respect to all defaults susceptible of being cured by the Administrative Agent and of future performance under the applicable ground lease or easement agreement; provided, further, that if the Administrative Agent serves such notice upon the applicable Loan Party, such Loan Party shall not seek to reject the applicable agreement and shall promptly comply with such demand;
(p) permit the Administrative Agent (at its option), during the continuance of any Event of Default, to (i) perform and comply with all obligations under the applicable ground lease or easement agreement; (ii) do and take such action as the Administrative Agent deems necessary or desirable to prevent or cure any default by such Loan Party under such ground lease or easement agreement and (iii) enter in and upon the applicable premises related to such ground lease or easement agreement to the extent and as often as the Administrative Agent deems necessary or desirable in order to prevent or cure any default under the applicable ground lease or easement agreement;
(q) in the event of any arbitration, court or other adjudicative proceedings under or with respect to any such ground lease or easement agreement, permit the Administrative Agent (at its option) to exercise all right, title and interest of the applicable Loan Party in connection with such proceedings; provided, that (i) Borrower and each other Loan Party hereby irrevocably appoint the Administrative Agent as their attorney-in-fact (which appointment shall be deemed coupled with an interest) to exercise such right, interest and title and (ii) the Loan Parties shall bear all costs, fees and expenses related to such proceedings; provided, further, that each Loan Party hereby further agrees that the Administrative Agent shall have the right, but not the obligation, to proceed in respect of any claim, suit, action or proceeding relating to the rejection of any of the ground leases or easement agreements referenced above by the relevant ground lessor or obligor as a result of bankruptcy or similar proceedings (including, without limitation, the right to file and prosecute all proofs of claims, complaints, notices and other documents in any such bankruptcy case or similar proceeding); and
(r) deliver to the Administrative Agent (or, subject to the requirements of the subject ground lease, cause the applicable lessor or other obligor to deliver to the Administrative Agent) an estoppel certificate in relation to such ground lease or easement agreement in form and substance acceptable to the Administrative Agent, in its discretion, and, in any case, setting forth (i) the name of lessee and lessor under the ground lease (if applicable); (ii) that such ground lease or easement agreement is in full force and effect and has not been modified except to the extent Administrative Agent has received notice of such modification; (iii) that no rental and other payments due thereunder are delinquent as of the date of such estoppel; and (iv) whether such Person knows of any actual or alleged defaults or events of default under the applicable ground lease or easement agreement; provided, that each Loan Party hereby agrees to execute and deliver to Administrative Agent, within ten (10) days of any request therefor, such documents, instruments, agreements, assignments or other conveyances reasonably requested by the Administrative Agent in connection with or in furtherance of any of the provisions set forth above or the rights granted to the Administrative Agent in connection therewith.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Hospitality Investors Trust, Inc.)
Ground Leases. Shall (and Borrower shall cause such Loan Parties to), with respect to any ground lease related to any Borrowing Base Property or material easement agreements in favor of such Loan Party and related to any Borrowing Base Property (as applicable):
(a) Borrower will pay when due the or cause to be paid all rent and other amounts charges required under each of the Ground Leases as and when the same are due and payable thereunder (subject Borrower will keep, observe and perform, or cause to applicable cure be kept, observed and performed, all of the other terms, covenants, provisions and agreements of the Ground Leases on the part of Borrower to be kept, observed and performed, and will not in any manner, cancel, terminate or grace periods);surrender, or permit any cancellation, termination or surrender of any Ground Lease, in whole or in part, or, without the written consent of Mortgagee, either orally or in writing, modify, amend or permit any modification or amendment of any of the terms thereof in any respect, and any attempt on the part of Borrower to exercise any such right without such written consent of Mortgagee shall be null and void and of no effect.
(b) timely perform and observe all of the material termsBorrower will do, covenants and conditions required or cause to be performed and observed by it as tenant thereunder (subject to applicable cure or grace periods);
(c) do done, all things necessary to preserve and keep unimpaired the rights of Borrower, as a lessee under each of the Ground Leases, and to prevent any default under each such ground lease Ground Lease, or easement agreement any termination, surrender, cancellation, forfeiture or impairment thereof, and in the event of the failure of Borrower to make any payment required to be made by Borrower pursuant to the provisions of any Ground Lease or to keep, observe or perform, or cause to be kept, observed or performed, any of the terms, covenants, provisions or agreements of any Ground Lease, Borrower agrees that Mortgagee may (but shall not be obligated to), after notice to Borrower (provided, however, that no such notice shall be required to be given after the occurrence of an Event of Default hereunder), take any action on behalf of Borrower, to make or cause to be kept, observed or performed any such terms, covenants, provisions or agreements and to enter upon any part of the Property and take all such action thereof as may be necessary therefor, to the end that the rights of Borrower in and to the applicable Leasehold Estate shall be kept unimpaired and free from default, and all money so expended by Mortgagee, with interest thereon at the Default Rate (as defined in the Note) from the date of each such expenditure, shall be paid by the Borrower to Mortgagee promptly upon demand by Mortgagee and shall be added to the indebtedness and secured by this Mortgage, and the lien as to both the fee simple and Leasehold Estates, and Mortgagee shall have, in addition to any other remedy of Mortgagee, the same rights and remedies in the event of non-payment of any such sum by Borrower as in the case of a default by Borrower in the payment of any sums due under the Note.
(c) Borrower will enforce the obligations of Fee Owner, as landlord, or any successor landlord under each of the Ground Leases (hereinafter, collectively, the “Landlord”), to the end that Borrower may enjoy all of the rights granted to it under each of the Ground Leases, and will promptly notify Mortgagee in writing of any default by its rights thereunder;Landlord or by Borrower in the performance or observance of any of the terms, covenants and conditions on the part of the Landlord or Borrower to be performed or observed under each of the Ground Leases and Borrower will promptly advise Mortgagee in writing of the occurrence of any of the defaults enumerated in each of the Ground Leases and of the giving of any notice by Landlord to Borrower of any default by Borrower in performance or observance of any of the terms, covenants or conditions of the Ground Leases on the part of Borrower to be performed or observed and will deliver to Mortgagee a true copy of each such notice. If, pursuant to any Ground Lease, the Landlord shall deliver to Mortgagee a copy of any notice of default given to Borrower a copy of any such notice from a Landlord, such notice shall constitute full authority and protection to Mortgagee for any action taken or omitted to be taken by Mortgagee in good faith in reliance thereon to cure such default.
(d) not waive, excuse If any action or discharge any proceeding shall be instituted to evict Borrower or to recover possession of the material obligations Property or any part thereof or for any other purposes affecting the Ground Leases or this Mortgage, Borrower will, immediately upon service thereof on or to Borrower, deliver to Mortgagee a true copy of the lessor each petition, summons, complaint, notice of motion, order to show cause and of all other provisions, pleadings, and papers, however designated, served in any such action or other obligor thereunder;proceeding.
(e) diligently Borrower covenants and continuously enforce agrees that unless Mortgagee shall otherwise expressly consent in writing, fee title in and to the material obligations Property and the Leasehold Estate shall not merge but shall always remain separate and distinct, notwithstanding the union of the lessor said states either in Fee Owner, Borrower, or other obligor thereunder;a third party by purchase or otherwise.
(f) not doNo release or forbearance of any of Borrower’s obligations under the Ground Leases, permit pursuant to the Ground Leases, or suffer (i) otherwise, shall release Borrower, as applicable, from any actof its obligations under this Mortgage, event or omission which would be likely to result in a default or permit the applicable lessor or other obligor to terminate or exercise any other remedy including its obligation with respect to the applicable ground lease or easement or (ii) any actpayment of rent as provided for in the Ground Leases and the performance of all of the terms, event or omission whichprovisions, covenants, conditions and agreements contained in the Ground Leases, to be kept, performed and complied with by the giving of notice or the passage of time, or both, would constitute a default or permit the lessor or such other obligor to exercise any other remedy under the applicable agreement;tenants therein.
(g) cancelBorrower shall not make any election or give any consent or approval (other than the exercise of a renewal right or extension right pursuant to Paragraph (i) below) for which a right to do so is conferred upon Borrower as a lessee under each of the Ground Leases without Mortgagee’s prior written consent. In case of any Event of Default under this Mortgage, terminateall such rights, surrendertogether with the right of termination, modify cancellation, modification, change, supplement, alteration or amend amendment of the Ground Leases, all of which have been assigned for collateral purposes to Mortgagee, shall vest in and be exercisable solely by Mortgagee.
(h) Borrower will give Mortgagee prompt written notice of the commencement of any of arbitration or appraisal proceeding under and pursuant to the provisions of either of the Ground Leases. Mortgagee shall have the right to intervene and participate in any such ground lease proceeding and Borrower shall confer with Mortgagee to the extent which Mortgagee deems necessary for the protection of Mortgagee. Upon the written request of Mortgagee, if an Event of Default exists, Borrower will exercise all rights of arbitration conferred upon it by its Ground Lease. Borrower shall select an arbitrator who is approved in writing by Mortgagee, provided, however, that if at the time of any such proceeding shall be commenced, Borrower shall be in default, after any applicable notice and the expiration of any applicable care period, in the performance or easement observance of any covenant, condition or agree other requirements of its Ground Lease, or of this Mortgage, on the part of Borrower to be performed or observed, Mortgagee shall have, and is hereby granted, the sole and exclusive right to designate and appoint on behalf of Borrowerthe arbitrator or arbitrators, or appraiser, in such proceeding, any termination, amendment, modification such designation or surrender thereof appointment being binding on Mortgagor.
(i) Borrower may exercise any option or right to renew or extend the term of either or each of the Ground Leases contained therein without the prior written consent of the Administrative Agent;
(h) deliver to the Administrative Agent all default and other material notices received by it or sent by it under the applicable ground lease or easement agreement;
(i) at Administrative Agent’s request, provide to Administrative Agent any information or materials relating to such ground lease or easement agreement and evidencing such Loan Party’s due observance and performance of its obligations thereunder;
(j) not permit or consent to the subordination of such ground lease or easement agreement to any mortgage or other leasehold interest of the premises related thereto;
(k) execute and deliver (to the extent permitted to do so under such ground lease or easement agreement), upon the request of the Administrative Agent, any documents, instruments or agreements as may be required to permit the Administrative Agent to cure any default under such ground lease or easement agreement;
(l) provide to Administrative Agent Mortgagee. Borrower shall give Mortgagee simultaneous written notice of the exercise of any such option or right to review or extend, together with a copy of the instrument given to its intention Landlord exercising such option or right, and thereafter, shall promptly deliver to Mortgagee a copy of any acknowledgement by such Landlord with respect to the exercise of such option or right. If any such option or right has not been exercised as aforesaid, then not more than three hundred sixty (360) and not less than two hundred seventy (270) days before the right of Borrower to exercise any option or right to renew or extend the term of its Ground Lease shall expire, Borrower shall give Mortgagee written notice specifying the date, term and manner for which such option or renewal is to be exercised. Within fifteen (15) Business Days of written demand by Mortgagee, Borrower shall exercise any such option or extension rights with respect renewal which is necessary to such ground lease or easement at least thirty (30) days prior to extend the expiration term of the time applicable Ground Lease to not less than two (2) years beyond the term of this Mortgage or to comply with any law affecting either Borrower or Mortgagee or which is necessary, in Mortgagee’s reasonable judgment, to preserve the value of the security intended to be afforded by this Mortgage. Borrower shall promptly provide evidence of such exercise of such option or right to Mortgagee’s reasonable satisfaction. In the event that Borrower fails to so exercise any such option or right or, if any Event of Default occurs hereunder, Borrower hereby agrees and grants to Mortgagee all right and authority to exercise such right or option and, upon the direction of the Administrative Agent, duly exercise any renewal or extension option with respect to any such ground lease or easement (provided, that Borrower and each Loan Party hereby appoints the Administrative Agent its attorney-in-fact, coupled with an interest, to execute and deliver, for and in the name of Borrower or in its own name and each Landlord agrees to accept such Personexercise. Nothing contained herein shall affect or limit any rights of Mortgagee granted under the Ground Leases.
(j) The lien of this Mortgage shall attach to all of Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, 11 U.S.C. § 365(h), including, without limitation, all instruments, documents or agreements necessary of Borrower’s rights to extend or renew any such ground lease or easement;remain in possession of the Mortgaged Property.
(mk) not treatBorrower shall not, in connection with the bankruptcy or other insolvency proceedings of any ground lessor or other obligor, any ground lease or easement agreement as terminated, cancelled or surrendered pursuant to the Bankruptcy Code without the Administrative AgentMortgagee’s prior written consent;, elect to treat any Ground Lease as terminated under Subsection 365(h)(1) of the Bankruptcy Code, 11 U.S.C. § 365(h)(1). Any such election made without Mortgagee’s consent shall be void and Borrower hereby assigns the rights under this subsection (k) to the extent assignable, to Mortgagee.
(nl) in connection with Borrower hereby unconditionally assigns, transfers and sets over to Mortgagee all Borrower’s claims and rights to the bankruptcy or other insolvency proceedings payment of damages arising from any ground lessor or other obligor, ratify the legality, binding effect and enforceability rejection of the applicable ground lease Ground Leases by any Landlord or easement agreement within the applicable time period therefore in such proceedings, notwithstanding any rejection by such ground lessor or obligor or trustee, custodian or receiver related thereto;
(o) provide to the Administrative Agent not less than thirty (30) days prior written notice other fee owner of the date on which the applicable Loan Party shall apply to any court Mortgaged Property or other governmental authority for authority or permission to reject the applicable ground lease or easement agreement in the event that there shall be filed by or against any Loan Party any petition, action or proceeding landlord under the Bankruptcy Code or any similar federal or state law; provided, that the Administrative Agent Code. Mortgagee shall have the right, but not the obligation, right to serve upon the applicable Loan Party within such thirty (30) day period a notice stating that (i) the Administrative Agent demands that such Loan Party assume and the assign the relevant ground lease proceed in its own name or easement agreement to the Administrative Agent subject to an in accordance with the Bankruptcy Code and (ii) the Administrative Agent covenants to cure or provide reasonably adequate assurance thereof with respect to all defaults susceptible of being cured by the Administrative Agent and of future performance under the applicable ground lease or easement agreement; provided, further, that if the Administrative Agent serves such notice upon the applicable Loan Party, such Loan Party shall not seek to reject the applicable agreement and shall promptly comply with such demand;
(p) permit the Administrative Agent (at its option), during the continuance of any Event of Default, to (i) perform and comply with all obligations under the applicable ground lease or easement agreement; (ii) do and take such action as the Administrative Agent deems necessary or desirable to prevent or cure any default by such Loan Party under such ground lease or easement agreement and (iii) enter in and upon the applicable premises related to such ground lease or easement agreement to the extent and as often as the Administrative Agent deems necessary or desirable in order to prevent or cure any default under the applicable ground lease or easement agreement;
(q) in the event name of any arbitration, court or other adjudicative proceedings under or with respect to any such ground lease or easement agreement, permit the Administrative Agent (at its option) to exercise all right, title and interest of the applicable Loan Party in connection with such proceedings; provided, that (i) Borrower and each other Loan Party hereby irrevocably appoint the Administrative Agent as their attorney-in-fact (which appointment shall be deemed coupled with an interest) to exercise such right, interest and title and (ii) the Loan Parties shall bear all costs, fees and expenses related to such proceedings; provided, further, that each Loan Party hereby further agrees that the Administrative Agent shall have the right, but not the obligation, to proceed in respect of any claim, suit, action or proceeding relating to the rejection of any either of the ground leases or easement agreements referenced above by the relevant ground lessor or obligor as a result of bankruptcy or similar proceedings (Ground Leases, including, without limitation, the right to file and prosecute all prosecute, either in its own name or in the name of Borrower, any proofs of claimsclaim, complaints, motions, applications, notices and other documents, in any case in respect to the applicable Landlord or any fee owner or landlord under the Bankruptcy Code. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until all of the obligations secured by this Mortgage shall have been satisfied and discharged in full. Any amounts received by Mortgagee as damages arising out of the rejection of either of the Ground Leases as aforesaid shall be applied first to all costs and expenses of Mortgagee (including, without limitation, attorneys’ fees and disbursements) incurred in connection with the exercise of any of its rights or remedies under this section and then as determined by Mortgagee. Borrower shall promptly make, execute, acknowledge and deliver, in form and substance satisfactory to Mortgagee, a UCC Financing Statement (Form UCC-1) and all such additional instruments, agreements and other documents, as may at any time hereafter be required by Mortgagee to effectuate and carry out the assignment made pursuant to this section.
(m) If pursuant to Subsection 365(h)(2) of the Bankruptcy Code, 11 U.S.C. § 365(h)(2), Borrower shall seek to offset against the rent reserved in any Ground Lease the amount of any damages caused by the nonperformance by the applicable Landlord or any fee owner or landlord of any of their obligations under the applicable Ground Lease after the rejection by such Landlord or any fee owner or landlord of the Ground Lease under the Bankruptcy Code, Borrower shall, prior to effecting such offset, notify Mortgagee of its intent to do so, setting forth the amounts proposed to be so offset that, in the reasonable judgment of Mortgagee, would constitute a breach of the applicable Ground Lease, and in the event of such objection, Borrower shall not affect any offset of the amounts so objected to by Mortgagee. Neither Mortgagee’s failure to object as aforesaid nor any objection relating to such offset shall constitute an approval of any such offset by Mortgagee.
(n) If any action, proceeding, motion or notice shall be commenced or filed in respect of one of the Landlords or any fee owner or landlord, the Mortgaged Property or the Ground Lease in connection with any case under the Bankruptcy Code, Mortgage shall have the option, exercisable upon notice from Mortgagee to the applicable party, to conduct and control any such litigation with counsel of Mortgagee’s choice. Mortgagee may proceed in its own name or in the name of Borrower in connection with any such litigation, and Borrower agrees to execute any and all powers, authorizations, consents or other documents reasonably required by Mortgagee in connection therewith. Borrower shall, upon demand, pay to Mortgagee all costs and expenses (including attorneys’ fees and disbursements) paid or incurred by Mortgagee in connection with the prosecution or conduct of any such proceedings. Any such costs or expenses not paid by Borrower as aforesaid shall be secured by the lien of this Mortgage and shall be added to the principal amount of the indebtedness secured thereby. Borrower shall not commence any action, suit, proceeding or case, or file any application or make any motion (unless such motion is for the purpose of protecting the Ground Leases and its value as security for the obligations secured by this Mortgage), in respect of the Ground Leases in any such bankruptcy case under the Bankruptcy Code without the prior written consent of Mortgagee.
(o) Borrower shall, after obtaining knowledge thereof, promptly notify Mortgagee of any filing by or similar proceeding); andagainst any Landlord or other fee owner or landlord of a petition under the Bankruptcy Code. Borrower shall promptly deliver to Mortgagee, following receipt, copies of any and all notices, summonses, pleadings, applications and other documents received by Borrower in connection with any such petition and any proceedings relating thereto.
(p) If there shall be filed by or against Borrower a petition under the Bankruptcy Code and Borrower as lessee under any Ground Lease, shall determine to reject such Ground Lease pursuant to Section 365(a) of the Bankruptcy Code, Borrower shall give Mortgagee not less than thirty (30) days’ prior notice of the date on which Borrower shall apply to the Bankruptcy Court for authority to reject such Ground Lease. Mortgagee shall have the right, but not the obligation, to serve upon Borrower within such thirty (30) day period a notice stating that Mortgagee demands that Borrower assume and assign such Ground Lease to Mortgagee pursuant to Section 365 of the Bankruptcy Code and Mortgagee has the right to assign the rights under this subsection (p) to the extent assignable. If Mortgagee shall serve upon Borrower the notice described in the preceding sentence, Borrower shall not seek to reject its Ground Lease and shall comply with the demand provided for in the preceding sentence and the applicable Landlord shall not contest Borrower’s right to so assign the Ground Lease.
(q) Borrower hereby assigns and transfers to 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 its Ground Lease may be rejected or assumed.
(r) deliver to the Administrative Agent (or, subject to the requirements of the subject ground lease, cause the applicable lessor or other obligor to deliver to the Administrative Agent) an estoppel certificate in relation to such ground lease or easement agreement in form and substance acceptable to the Administrative Agent, in its discretion, and, in any case, setting forth (i) the name of lessee and lessor under the ground lease (if applicable); (ii) that such ground lease or easement agreement is in full force and effect and has not been modified except to the extent Administrative Agent has received notice of such modification; (iii) that no rental and other payments due thereunder are delinquent as of the date of such estoppel; and (iv) whether such Person knows of any actual or alleged defaults or events of Any default under the Ground Lease or any failure by Borrower to perform its obligations under the Ground Leases not cured within the applicable ground lease or easement agreement; providedgrace period shall constitute an Event of Default hereunder. Notwithstanding anything to the contrary contained herein, that each Loan Party hereby agrees to execute and deliver to Administrative Agent, within ten (10) days this Mortgage shall not constitute an assignment of any request therefor, such documents, instruments, agreements, assignments or other conveyances reasonably requested by the Administrative Agent in connection with or in furtherance of any either of the provisions set forth above Ground Leases and Mortgagee shall have no liability or the rights granted to the Administrative Agent in connection therewithobligation thereunder by reason of its acceptance of this Mortgage.
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Ground Leases. Shall (and a) Borrower shall cause such Loan Parties Owner to), with respect to any ground lease related to any Borrowing Base Property or material easement agreements in favor of such Loan Party and related to any Borrowing Base Property (as applicable)::
(ai) pay when due the rent all rents, additional rents and other amounts due sums required to be paid by the applicable Individual Owner, as tenant under and payable thereunder (pursuant to the provisions of the Ground Leases, as and when such rent or other charge is payable, subject to applicable grace periods afforded Owner 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 Owner’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 all of the terms, covenants and conditions of the Ground Leases on the part of the applicable Individual Owner, as tenant thereunder, to be performed and observed, at least three (3) days prior to the expiration of any applicable grace periods);period therein provided; and
(iii) promptly notify Lender of the giving of any written notice by the lessor under the Ground Leases to Owner of any default by Owner in the performance or observance of any of the terms, covenants or conditions of the Ground Leases on the part of Owner, as tenant thereunder, to be performed or observed, and deliver to Lender a true copy of each such notice.
(b) timely Borrower shall not, without the prior consent of Lender (which consent may be withheld by Lender in its sole and absolute discretion), cause Owner to surrender or cause or permit Owner to surrender 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.
(c) If any Individual Owner shall default in the performance or observance of any material term, covenant or condition of any Ground Lease on the part of such Individual Owner, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of the Pledge Agreement, this Agreement and the other Loan Documents, and without waiving or releasing Borrower from any of its Obligations hereunder (but subject to the rights of Mortgage Lender), Lender shall have the right, but shall be under no obligation, to pay any sums and to perform and observe any act or take any action as may be necessary or appropriate to cause all of the material terms, covenants and conditions required of the Ground Lease on the part of such Individual Owner, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of such Individual Owner, to the end that the rights of such Individual Owner in, to and observed under 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 it as tenant thereunder Owner or by any party on behalf of Owner. 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 applicable cure the rights of tenants, subtenants and other occupants under the Leases or grace periodsof 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 in accordance with this Section 4.33(c);
(c) do all things necessary to preserve , together with interest thereon from the day of such payment at the Default Rate. All sums so paid and keep unimpaired such ground lease or easement agreement expended by Lender and its rights thereunder;the interest thereon shall be secured by the legal operation and effect of the Pledge Agreement.
(d) not waiveIf any lessor under a Ground Lease shall deliver to Lender a copy of any notice of default sent by said lessor to an Individual Owner, excuse as tenant under such Ground Lease, such notice shall constitute full protection to Lender for any action taken or discharge any omitted to be taken by Lender, in good faith, in reliance thereon and in accordance with Section 4.33(c). Borrower shall cause Owner to exercise each individual option, if any, to extend or renew the term of the material obligations of the lessor Ground Leases upon demand by Lender or other obligor thereunder;
Mortgage Lender made at any time within one (e1) diligently and continuously enforce the material obligations of the lessor or other obligor thereunder;
(f) not do, permit or suffer (i) any act, event or omission which would be likely to result in a default or permit the applicable lessor or other obligor to terminate or exercise any other remedy with respect year prior to the applicable ground lease or easement or (ii) last day upon which any actsuch option may be exercised, event or omission whichand if Borrower shall fail to do so, with the giving of notice or the passage of time, or both, would constitute a default or permit the lessor or such other obligor Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any other remedy under such option in the name of and upon behalf of the applicable agreement;
(g) cancelIndividual Owner, terminate, surrender, modify or amend any which power of the provisions of any such ground lease or easement or agree attorney shall be irrevocable and shall be deemed to any termination, amendment, modification or surrender thereof without the prior written consent of the Administrative Agent;
(h) deliver to the Administrative Agent all default and other material notices received by it or sent by it under the applicable ground lease or easement agreement;
(i) at Administrative Agent’s request, provide to Administrative Agent any information or materials relating to such ground lease or easement agreement and evidencing such Loan Party’s due observance and performance of its obligations thereunder;
(j) be coupled with an interest. Borrower will not permit subordinate or consent to the subordination of such ground the Ground Leases to any mortgage, security deed, lease or easement agreement 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) Borrower shall not permit any Individual Owner to, without Lender’s written consent, elect to treat any Ground Lease as terminated under Subsection 365(h)(1) of the U.S. Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(ii) If, pursuant to subsection 365(h) of the Bankruptcy Code, any Individual Owner 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 Owner shall not affect any offset of such amounts unless it shall have provided written notice to Mortgage Lender and Lender of its intent to do so and Mortgage Lender and Lender shall have consented thereto.
(iii) 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 permit Owner to exercise any Ground Lease Purchase Option with respect to any mortgage or other leasehold interest Ground Lease Property without Lender’s prior written consent; provided each of the premises related theretofollowing conditions is satisfied:
(i) No Event of Default shall have occurred and be continuing;
(kii) execute and deliver Lender shall receive not less than forty-five (to the extent permitted to do so under such ground lease or easement agreement), upon the request 45) days advance written notice of the Administrative Agent, any documents, instruments or agreements as may be related Individual Owner’s intention to exercise such Ground Lease Purchase Option unless such Ground Lease sets forth a shorter time period within which such Individual Owner is required to permit respond in order to exercise such Ground Lease Purchase Option, in which case the Administrative Agent to cure any default under advance notice period hereunder shall instead be such ground lease or easement agreementshorter time period;
(liii) provide to Administrative Agent written notice The related Individual Owner shall comply with all of its intention to exercise any option or renewal or extension rights the terms and conditions of the related Ground Lease with respect to such ground lease or easement at least thirty (30) days prior to the expiration of the time to exercise such right or option and, upon the direction of the Administrative Agent, duly exercise any renewal or extension option with respect to any such ground lease or easement (provided, that Borrower and each Loan Party hereby appoints the Administrative Agent its attorney-in-fact, coupled with an interest, to execute and deliver, for and in the name of such Person, all instruments, documents or agreements necessary to extend or renew any such ground lease or easementGround Lease Purchase Option;
(miv) Fee title to the related Ground Lease Property shall be conveyed to the Individual Owner who is the ground lessee under such Ground Lease pursuant a bona fide arm’s length transaction and for fair consideration and such acquisition shall not treatresult in a merger of the fee and leasehold estates in such Ground Lease Property;
(v) Neither Borrower nor Owner shall 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 Owner’s acquisition of fee title to the Ground Lease Property, such Individual Owner shall comply with all of the terms and conditions of the Mortgage Loan Documents;
(viii) Borrower shall cause Owner to obtain a new owner’s title insurance policy together with a mezzanine endorsement thereto (or, if a mezzanine endorsement is unavailable, an assignment of title proceeds letter) reasonably satisfactory to Lender; and
(ix) Lender and/or its Servicer shall be reimbursed for all costs and expenses, including legal fees, incurred in connection with the bankruptcy exercise of such Ground Lease Purchase Option.
(g) Borrower shall not cause or other insolvency proceedings 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 Owner which is the ground lessor or other obligorlessee under the related Ground Lease, any ground lease or easement agreement as terminated, cancelled or surrendered pursuant to the Bankruptcy Code without the Administrative Agent’s prior written consent;
(n) and then only in connection compliance 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 or easement agreement within the applicable time period therefore in such proceedings, notwithstanding any rejection by such ground lessor or obligor or trustee, custodian or receiver related thereto;
preceding Subsection (o) provide to the Administrative Agent not less than thirty (30) days prior written notice of the date on which the applicable Loan Party shall apply to any court or other governmental authority for authority or permission to reject the applicable ground lease or easement agreement in the event that there shall be filed by or against any Loan Party any petition, action or proceeding under the Bankruptcy Code or any similar federal or state law; provided, that the Administrative Agent shall have the right, but not the obligation, to serve upon the applicable Loan Party within such thirty (30) day period a notice stating that (i) the Administrative Agent demands that such Loan Party assume and the assign the relevant ground lease or easement agreement to the Administrative Agent subject to an in accordance with the Bankruptcy Code and (ii) the Administrative Agent covenants to cure or provide reasonably adequate assurance thereof with respect to all defaults susceptible of being cured by the Administrative Agent and of future performance under the applicable ground lease or easement agreement; provided, further, that if the Administrative Agent serves such notice upon the applicable Loan Party, such Loan Party shall not seek to reject the applicable agreement and shall promptly comply with such demand;
(p) permit the Administrative Agent (at its optionf), during the continuance of any Event of Default, to (i) perform and comply with all obligations under the applicable ground lease or easement agreement; (ii) do and take such action as the Administrative Agent deems necessary or desirable to prevent or cure any default by such Loan Party under such ground lease or easement agreement and (iii) enter in and upon the applicable premises related to such ground lease or easement agreement to the extent and as often as the Administrative Agent deems necessary or desirable in order to prevent or cure any default under the applicable ground lease or easement agreement;
(q) in the event of any arbitration, court or other adjudicative proceedings under or with respect to any such ground lease or easement agreement, permit the Administrative Agent (at its option) to exercise all right, title and interest of the applicable Loan Party in connection with such proceedings; provided, that (i) Borrower and each other Loan Party hereby irrevocably appoint the Administrative Agent as their attorney-in-fact (which appointment shall be deemed coupled with an interest) to exercise such right, interest and title and (ii) the Loan Parties shall bear all costs, fees and expenses related to such proceedings; provided, further, that each Loan Party hereby further agrees that the Administrative Agent shall have the right, but not the obligation, to proceed in respect of any claim, suit, action or proceeding relating to the rejection of any of the ground leases or easement agreements referenced above by the relevant ground lessor or obligor as a result of bankruptcy or similar proceedings (including, without limitation, the right to file and prosecute all proofs of claims, complaints, notices and other documents in any such bankruptcy case or similar proceeding); and
(r) deliver to the Administrative Agent (or, subject to the requirements of the subject ground lease, cause the applicable lessor or other obligor to deliver to the Administrative Agent) an estoppel certificate in relation to such ground lease or easement agreement in form and substance acceptable to the Administrative Agent, in its discretion, and, in any case, setting forth (i) the name of lessee and lessor under the ground lease (if applicable); (ii) that such ground lease or easement agreement is in full force and effect and has not been modified except to the extent Administrative Agent has received notice of such modification; (iii) that no rental and other payments due thereunder are delinquent as of the date of such estoppel; and (iv) whether such Person knows of any actual or alleged defaults or events of default under the applicable ground lease or easement agreement; provided, that each Loan Party hereby agrees to execute and deliver to Administrative Agent, within ten (10) days of any request therefor, such documents, instruments, agreements, assignments or other conveyances reasonably requested by the Administrative Agent in connection with or in furtherance of any of the provisions set forth above or the rights granted to the Administrative Agent in connection therewith.
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Samples: Mezzanine Loan Agreement (Hospitality Investors Trust, Inc.)
