Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleases.
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Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules (a) All Leases and the exhibits attached to such rent roll all renewals of Leases (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described renewals pursuant to options contained in the Rent Roll and those additional Leases (if anyLeases) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of executed after the date hereof shall (i) Borrower is the owner and holder of the landlord’s interest under each Lease; provide for rental rates comparable to then existing local market rates for similar properties, (ii) there are no be on commercially reasonable terms, (iii) as to new Leases, provide that such Lease is subordinate to the Mortgage and that the lessee will attorn to Lender and (iv) not contain any terms which would materially adversely affect Lender's rights under the Loan Documents. All Major Leases and all renewals, amendments and modifications thereof (other than renewals and amendments entered into pursuant to or in implementation of options or rights contained in such Major Leases) executed after the date hereof shall be subject to Lender's prior assignments of the landlord’s interest approval, such approval not to be unreasonably withheld, conditioned or delayed. A request by Borrower (and to Borrower’s knowledge for the approval of any prior landlord) in any Major Lease or any portion renewal, amendment or modification thereof pursuant to this Section 4.1.9(a) or for Lender's approval of Rents which are presently outstanding and have priority over the Assignment any other matter requiring Lender's consent pursuant to this Section 4.1.9(a) may include a statement in bold face type that if Lender fails to approve such Major Lease or other matter within ten (10) Business Days after receipt by Lender of Leases and Rents; (iii) true and correct copies of the Leases such request, it shall be deemed to have been delivered approved. If Lender fails to respond to any such request within ten (10) Business Days after its receipt thereof and all information reasonably required by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior order to the date hereof; adequately review such request, including, without limitation (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectivelyapproval of a Major Lease), the “Tenant Estoppels”)final proposed Major Lease itself and blacklined copies of such Major Lease marked to show the changes against the form of lease approved by Lender, neither Borrower norLender shall be conclusively deemed to have approved such Major Lease or other matter, provided that (in the case of approval of a Major Lease) blacklined copies of interim drafts of such Major Lease were provided to Borrower’s knowledgeLender. Upon request, any tenant under any Lease is Lender shall enter into a subordination, non-disturbance and attornment agreement in default under any of the material termsform attached hereto as SCHEDULE V (with such reasonable and customary changes thereto as may be acceptable to Lender, covenants or provisions of the Lease, and, except as disclosed to Lender acting reasonably and in writing or in good faith) with any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each a Lease have been paid in full and, except for estimated payments of operating expenses and taxes made approved by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesLender.
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Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules Borrowers represent and warrant to Agent and the exhibits attached Lenders with respect to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof for residential occupancy, (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the rent roll or Census Report for each Project delivered to Agent is true and correct; (ii) such Leases are valid and in and full force and effect; and (iii) the interests of the landlord and the rents under such Leases have not been further modified assigned or amended, except as disclosed pledged. Borrowers represent and warrant to Lender in writing on or prior Agent and Lenders with respect to the date hereof; (iv) Commercial Leases, to Borrower’s best knowledge, each Lease knowledge (i) the rent roll with respect to such Commercial Leases delivered to Agent is true and correct; (ii) such Commercial Leases are in full force and effect; (iii) the Commercial Leases (including amendments) are in writing, and there are no oral agreements with respect thereto; (iv) the copies of the Leases delivered to Agent are true and complete; (v) to Borrower’s best knowledge, except as disclosed on neither the Rent Roll or in landlord nor any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any LeaseCommercial Leases; (vi) Borrowers have no knowledge of any notice of termination or default with respect to Borrower’s best knowledge, except as expressly set forth in any Commercial Lease; (vii) Borrowers have not assigned or pledged any of the Commercial Leases, the rents or any interests therein except to Agent and the Lender; (viii) no Tenant Estoppels or on the Rent Roll, there are no offsets other party has an option to purchase all or defenses to the payment of any portion of any Project; (ix) no Tenant has the Rentsright to terminate its Commercial Lease prior to expiration of the stated term of such Commercial Lease; (x) no Tenant has prepaid more than one month’s rent in advance (except for bona fide Security Deposits not in excess of an amount equal to two months’ rent); and (viixi) all existing Commercial Leases are subordinate to Borrower’s best knowledge, except as disclosed on the Rent Roll Mortgage either pursuant to their terms or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleases.a recorded subordination agreement
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Leases. To Borrower’s best knowledge An accurate and complete Rent Roll as of the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the date of inclusion of each Unencumbered Asset Pool Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Unencumbered Asset Pool with respect to all Leases (if any) on Schedule 2 attached hereto and of any existing subleases thereunder. To Borrower’s best knowledge no Person portion of the Unencumbered Asset Pool Properties has any possessory interest in the Property or right to occupy the same except under and pursuant been provided to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground LeaseAgent. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments delivery of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the such Rent Roll upon inclusion of a Unencumbered Asset Pool Property in the Unencumbered Asset Pool, no tenant or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant licensee under any Lease is entitled to any free rent, partial rent, rebate of rent payments, credit, offset or deduction in default under any of the material termsrent, covenants including, without limitation, lease support payments or provisions of the Lease, andlease buy-outs, except as disclosed to Lender reflected in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except such Rent Roll. Except as expressly set forth in Schedule 6.22, as of the Leasesdate of inclusion of the applicable Unencumbered Asset Pool Property in the Unencumbered Asset Pool, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment Leases of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid Unencumbered Asset Pool are in full and, except for estimated payments of operating expenses force and taxes made by tenants effect in accordance with their respective terms, without any payment default or to the knowledge of the Borrower and the Guarantors any other material default thereunder, nor to the knowledge of the Borrower and the Guarantors are there any defenses, counterclaims, offsets, concessions or rebates available to any tenant or licensee thereunder, and except as reflected in Schedule 6.22, the Borrower has not given or made, any notice of any payment or other material default, or any claim, which remains uncured or unsatisfied, with respect to any of the Leases, no Rents have been paid more than one (1) month in advance and to the knowledge of the due dates thereofBorrower and the Guarantors there is no basis for any such claim or notice of material default by tenant or licensee. For purposes No property other than the Unencumbered Asset Pool Property which is the subject of the preceding sentenceapplicable Lease is necessary to comply with the requirements (including, without limitation, parking requirements) contained in such Lease. The Borrower or a Subsidiary Guarantor is the term holder of the lessor’s, landlord’s or licensor’s interest in and to all of the Leases of the Unencumbered Asset Pool Properties owned by it, except that both a Subsidiary Guarantor and Borrower hold the lessor’s, landlord’s or licensor’s 113 interests in the agreements described in the definition of “LeaseNokia Agreement” shall exclude subleasesin §1.1.
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Leases. To Borrower’s best knowledge No unrecorded written leases or oral leases affect the rent roll attached hereto Property, excluding, however, (a) rights of residents of the facility on the land pursuant to unrecorded residency agreements, if any, and (b) that certain dated , by and between, inter alia, Seller, as Schedule 3 together with the schedules landlord, and the exhibits attached , as tenant (as amended to such rent roll (collectivelydate, the “Rent RollFacility Lease”) ). The Facility Lease is true, complete and correct and being terminated with respect to the Property concurrently with the sale of the Property to Purchaser. As an inducement to the Title Company to insure over any defects, liens, encumbrances, adverse claims or other matters created, first appearing in the public records or attaching during the period between , 201 and date on which the deed conveying the Property from Seller to Purchaser is recorded in the official records of , (the “Recording Date”), and of which the undersigned (or any party claiming under the undersigned) had knowledge (“New Title Matters”), the undersigned hereby agrees to: (1) promptly remove, bond over or otherwise dispose of any such New Title Matters, and (2) hold harmless and indemnify the Title Company for any loss, cost, expense, claim or damage, including without limitation reasonable attorneys’ fees, arising from the undersigned’s failure to so remove, bond over or otherwise dispose of any such New Title Matters. The undersigned’s obligations under the preceding sentence shall expire thirty (30) days after the Recording Date unless the Title Company, on or before the expiration of such thirty (30) day period, notifies the undersigned in writing of any New Title Matters. Additionally, the undersigned shall not incur any liabilities or obligations hereunder with respect to any New Title Matters arising after the earlier of (i) fifteen (15) days from the date hereof and (ii) the Recording Date. The undersigned authorized signatory executing this declaration on behalf of Seller is not subject executing this declaration individually, but solely in his or her capacity as an authorized signatory of Seller. Exhibit C EXECUTED this day of , 201 . [ ], a [ ] By: Name: Title: Exhibit C ATTACHMENT 3 Form of Deed SPECIAL WARRANTY DEED FOR VALUE RECEIVED, the receipt and sufficiency of which are hereby acknowledged, , a (“Grantor”), hereby grants to any Leases other than the Leases , a (“Grantee”), all of that certain real property more particularly described in the Rent Roll and those additional Leases (if any) on Schedule 2 1 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases incorporated herein by this reference (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant EstoppelsProperty”), neither Borrower norsubject to (a) all non-delinquent real property taxes, (b) all non-delinquent special assessments, if any, and (c) all other liens, leases, easements, encumbrances, covenants, conditions, restrictions and other matters of record. Grantor does hereby covenant and agree to and with Grantee that GRANTOR WILL WARRANT AND DEFEND the Property against all persons lawfully claiming, or to claim the same, by, through or under Grantor and none other, subject to the above matters. Except as aforesaid, Grantor makes no other warranties of title relative to the Property. Dated: , 20 [ ], a [ ] By: Name: Title: STATE OF ILLINOIS ) ) ss. COUNTY OF XXXX ) I certify that I know or have satisfactory evidence that the person appearing before me and making this acknowledgment is the person whose true signature appears on this document. On this day of , 20 , before me personally appeared , to Borrowerme known to be the of [ ], the [ ] that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said limited liability company, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute said instrument. WITNESS my hand and official seal hereto affixed the date and year first above written. Notary Public in and for the State of Residing at My commission expires: Type or Print Notary Name Exhibit C ATTACHMENT 4 Form of Operational Transfer Agreement for an Operating Facility FORM OF OPERATIONS TRANSFER AGREEMENT By and Between KINDRED , , [New Operator] KINDRED HEALTHCARE OPERATING, INC. (joining in this Agreement solely for purposes of Section 18.9 herein) and , [New Operator’s knowledgeGuarantor] (joining in this Agreement solely for purposes of Section 18.10 herein) Dated , any tenant under any Lease is in default under any 201 TABLE OF CONTENTS Page ARTICLE I DEFINITIONS 3 1.1. Definitions 3 ARTICLE II SALE AND PURCHASE OF ASSETS 6 2.1. Agreement to Sell and Purchase 6 ARTICLE III PURCHASE PRICE; PRORATIONS 7 3.1. Purchase Price; Prorations 7 3.2. Taxes; Fees 7 3.3. Prorations 7 ARTICLE IV ASSETS AND EXCLUDED ASSETS 8 4.1. Assets 8 4.2. Excluded Assets 10 ARTICLE V ASSUMED OBLIGATIONS 11 5.1. Assumed Kindred Contracts 11 ARTICLE VI CLOSING 12 6.1. Closing 12 ARTICLE VII MEDICARE PROVIDER AGREEMENT 12 7.1. Kindred’s Medicare Provider Agreement 12 7.2 Kindred’s Medicaid Provider Agreement 13 ARTICLE VIII CHANGE OF OWNERSHIP OF THE FACILITY 13 8.1. Licensure Approvals 13 8.2. Cost Reports 13 ARTICLE IX TRANSFER OF RESIDENT TRUST FUNDS 15 9.1. Resident Trust Funds 15 ARTICLE X EMPLOYEES 16 10.1. Hired Employees 16 10.2. Employees and Benefits 17 ARTICLE XI ACCOUNTS RECEIVABLE 17 11.1. Accounts Receivable 17 11.2. Receipts by New Operator 17 11.3. Receipts by Kindred 18 11.4. Other Receipts 18 11.5. Accounting for Accounts Receivable 19 ARTICLE XII REPRESENTATIONS AND WARRANTIES 20 12.1. Kindred’s Representations 20 12.2. New Operator’s Representations 22 ARTICLE XIII INTERIM OPERATIONS AND UNDERTAKINGS 24 13.1. Conduct of Business Pending Closing 24 13.2. Prohibited Actions of Kindred Pending Closing 24 13.3. Access 25 13.4. Information Systems, Records, Etc. 25 13.5 Other Undertakings 26 13.6 Notice by Kindred of Certain Events 26 ARTICLE XIV CONDITIONS PRECEDENT 26 14.1. Conditions Precedent to New Operator’s Obligations 26 14.2. Conditions Precedent to Kindred’s Obligations 27 14.3. Waiver of Conditions Precedent 27 ARTICLE XV DELIVERIES AT CLOSING 27 15.1. Kindred’s Deliveries 27 15.2. New Operator’s Deliveries 28 ARTICLE XVI TERMINATION 28 16.1. Termination of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any LeaseAgreement 28 ARTICLE XVII FURTHER ASSURANCES; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses COVENANTS 28 17.1. Further Assurances 28 17.2. Covenants 29 17.3 Kindred Non-Solicitation 29 17.4 New Operator Non-Solicitation 29 17.5 Access to the payment Records 29 17.6 Final Reports and Actions; Insurance 30 ARTICLE XVIII INDEMNIFICATION 30 18.1. Indemnification by Kindred 30 18.2. Indemnification by New Operator 31 18.3. Period of any portion Indemnity 31 18.4. Notice to the Indemnifying Party 32 18.5. Non-Third Party Claims 32 18.6. Third Party Claims 32 18.7. Reimbursement 33 18.8. Exclusive Remedy 33 18.9 Kindred Guaranty 33 18.10 New Operator Guaranty 33 ARTICLE XIX MISCELLANEOUS 34 19.1. Effectiveness 34 19.2 Complete Understanding 34 19.3 Waiver 34 19.4 Applicable Law 34 19.5 Notices 34 19.6 Waiver of the RentsJury Trial 35 19.7. Construction 35 19.8. Exhibits 35 19.9. Severability 35 19.10. Third Party Beneficiaries 35 19.11. Counterparts 35 19.12. Electronic Signatures 35 19.13. [Intentionally Omitted] 35 19.14. Headings 35 19.15. Assignment; No Beneficiaries 35 19.16. Publicity 36 19.17. Confidentiality 36 19.18. Notice of Investigations and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleases.Default 36
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Leases. To the best of Borrower’s best knowledge knowledge, the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunderRoll. To Borrower’s the best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing set forth on or prior to the date hereof; Rent Roll: (ivi) to Borrower’s best knowledge, each Lease is in full force and effect; (ii) the tenants under the Leases have accepted possession of and are in occupancy of all of their respective demised premises, have commenced the payment of rent under the Leases, and there are no offsets, claims or defenses to the enforcement thereof; (iii) all rents due and payable under the Leases have been paid and no portion thereof has been paid for any period more than thirty (30) days in advance; (iv) the rent payable under each Lease is the amount of fixed rent set forth in the Rent Roll, and, to the best of Borrower’s knowledge, there is no claim or basis for a claim by the tenant thereunder for an adjustment to the rent; (v) to Borrower’s best knowledgeno tenant has made any claim against the landlord under any Lease which remains outstanding, except as disclosed and based on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectivelyLoan, there are no defaults on the “Tenant Estoppels”)part of the landlord under any Lease, neither Borrower norand, to the best of Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event has occurred which, but for the passage of time or with the giving of notice or passage of time, or both, would constitute an event of default under any Leasesuch a default; (vi) to Borrower’s best knowledge, except as expressly set forth in there is no present material default by the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of tenant under any portion of the RentsLease; and (vii) to Borrower’s best knowledge, except all security deposits under Leases are as disclosed set forth on the Rent Roll or and are held consistent with Section 3.8 hereof; (viii) Borrower is the sole owner of the entire lessor’s interest in any Tenant Estoppel, all Rents due and payable under each Lease; (ix) each Lease have been paid in full andis the valid, binding and enforceable obligation of the Borrower and the applicable tenant thereunder; (x) no Person has any possessory interest in, or right to occupy, the Property except for estimated payments under the terms of operating expenses the Lease; and taxes made by tenants in accordance with their Leases(xi) each Lease is subordinate to the Loan Documents, no either pursuant to its terms or pursuant to a subordination and attornment agreement. None of the Leases contains any option to purchase or right of first refusal to purchase the Property or any part thereof. Neither the Leases nor the Rents have been paid more than one (1) month in advance of assigned or pledged except to Lender, and no other Person has any interest therein except the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasestenants thereunder.
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Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions A list of all of the Leases (and but not subleases entered into by any existing subleases thereundertenants under the Leases) affecting the Land or pursuant to the Ground Lease. As of Improvements on the date hereof of this Agreement is attached to this Agreement as Exhibit C, complete copies of which have been made available to Buyer for Buyer’s review. To the actual knowledge of Seller, on the date of this Agreement (i) Borrower is the owner Leases are in good standing and holder of the landlord’s interest under each Lease; in full force and effect in accordance with their respective terms, (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledgeexcept as set forth on Exhibit C, the Leases have not been further modified or amended, amended and (iii) except as disclosed set forth on Exhibit C, there has been no written claim of default under any of the Leases on the part of any party thereto which remains uncured on the date of this Agreement. Seller’s representations under this Subsection shall not be deemed made with respect to Lender in writing on the Lease held by Coach, Inc. of a portion of the Property. Seller shall not, without Buyer’s consent, voluntarily terminate or modify any of the Leases or enter into any new Leases. Notwithstanding the foregoing, if prior to the date hereof; (iv) to Borrower’s best knowledge, each Closing Date any tenant under a Lease shall default under its Lease or any Lease is terminated (other than pursuant to a voluntarily termination by Seller), Buyer’s obligation to accept title to the Property and to pay the full Purchase Price shall not be affected, and this Agreement shall remain in full force and effect; (v) to Borrower’s best knowledge. Nothing contained in this Agreement shall prevent Seller from commencing any action, except as disclosed on the Rent Roll including a summary dispossesses proceeding or in non-payment proceeding, against any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease that is in default under any of the material terms, covenants or provisions of the its Lease, and, except as disclosed to Lender in writing or in from applying any Tenant Estoppels, Borrower knows security deposit held by Seller. On the date of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Rollthis Agreement, there are no offsets or defenses leasing commissions due with respect to the payment of any portion of Leases. Seller shall request from Forest Electric Corp., and if received deliver to Buyer at the Rents; and (vii) to Borrower’s best knowledgeClosing, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants an estoppel letter in accordance with their Leasesthe Lease with Forest Electric Corp. If Forest Electric Corp. fails to deliver same, no Rents have been paid more than one (1) month Seller shall not be in advance default under this Agreement and this Agreement shall remain in full force and effect in accordance with its terms and, notwithstanding the provisions of Section 8.3 Sellers’ representations in this Subsection with respect to that Lease shall survive the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesClosing without time limit.
Appears in 1 contract
Samples: Net Lease Agreement (Coach Inc)
Leases. To Borrower’s best knowledge The real property demised by the rent roll attached hereto as leases described on Schedule 3 together with the schedules and the exhibits attached to such rent roll 3.13.2 (collectively, the “Rent RollLeased Real Property”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions constitutes all of the Leases (real property leased by the Acquired Companies and any existing subleases thereunder) or pursuant to the Ground Lease. As their Subsidiaries as of the date hereof of this Agreement. Schedule 3.13.2 accurately sets forth for each Leased Real Property: (i) Borrower is the owner and holder street address of the landlord’s interest under each Lease; subject Leased Real Property, (ii) there are no prior assignments the date of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease lease, sublease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; other occupancy right, (iii) true and correct copies the name of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; parties thereto and (iv) to Borrower’s best knowledgeeach amendment thereto. Except as set forth on Schedule 3.13.2, each Lease is as of the date of this Agreement, the Leased Real Property leases are in full force and effect; (v) , and an Acquired Company or a Subsidiary of an Acquired Company holds a valid and existing leasehold interest under each such lease, subject to Borrowerproper authorization and execution of such lease by each other party thereto and the application of any bankruptcy or creditor’s best knowledgerights laws. The Acquired Companies have delivered or made available to Crane copies of each of the leases described on Schedule 3.13.2, and none of such leases has been modified in any material respect, except as to the extent that such modifications are disclosed on by the Rent Roll copies delivered or in made available to the Buyers. No Acquired Company or any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease of its Subsidiaries is in default in any material respect under any of such leases, and to the material terms, covenants or provisions Acquired Companies Knowledge and as of the Leasedate of this Agreement, and, except as disclosed no counterparty to Lender any such lease is in writing or default thereunder in any Tenant Estoppelsmaterial respect. With respect to each such lease, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledgedate of this Agreement, except as disclosed on the Rent Roll no Acquired Company or any of its Subsidiaries has exercised or given any notice of exercise of, nor has any lessor or landlord exercised or given any notice of exercise by such party of, any option, right of first offer or right of first refusal contained in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance such lease to purchase the applicable Leased Real Property. Each lease of the due dates thereof. For purposes of Leased Real Property grants the preceding sentence, tenant under the term “Lease” shall exclude subleaseslease the exclusive right to use and occupy the demised premises thereunder.
Appears in 1 contract
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof hereof, Schedule 5.22 hereto contains a ------ ------------- complete list of all leases, occupancy agreements for real property and all amendments thereto, including without limitation, assignments and subleases pursuant to which the Company and its Subsidiaries leases real property, and written license agreements granted by the Company or its Subsidiaries pursuant to which a third party would have the right to enter upon the leased premises (i) Borrower is herein individually referred to, together with any other Lease entered into from time to time, as a "Real Property Lease" and collectively referred to as ------------------- the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct "Real Property Leases"). The copies of the Real Property Leases have been heretofore -------------------- delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior Company to the date hereof; (iv) to Borrower’s best knowledgeAgent are true, correct and complete copies thereof and each Lease of such Real Property Leases currently in effect is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or effect in any tenant estoppels delivered to Lender in connection accordance with the Loan (collectively, terms thereof. Neither the “Tenant Estoppels”), neither Borrower tenant nor, to Borrower’s knowledgethe knowledge of the Company or its Subsidiaries, any tenant the landlord, under any Real Property Lease under which the Company is the tenant is in default under the applicable Real Property Lease or has given or received any notice of cancellation or termination of such Real Property Lease (other than pursuant to the expiration thereof) or condemnation of the leased premises, except to the extent such defaults or events described in such notices, individually or in the aggregate, could not reasonably be expected to have a material adverse effect on the business, condition (financial or otherwise), assets, operations or prospects of the Company or its Subsidiaries taken as a whole. Each of the Real Property Leases under which the Company or any of its Subsidiaries is the tenant currently in effect is in possession of its respective premises and is open for business in accordance with the Company's or such Subsidiary's ordinary course practices, and no such tenant has assigned any of its interest in any of the material termsReal Property Leases under which the Company is the tenant, covenants as collateral or provisions of the Lease, and, except as disclosed to Lender in writing otherwise or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time sublet all or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledgepremises covered by any Lease or granted any written license with respect thereto, except as may be otherwise disclosed on Schedule 5.22 hereto or as is expressly permitted hereunder. To ------------- the Rent Roll knowledge of the Company, all work to be performed by the landlord under the Real Property Leases currently in effect has been completed and there are no claims pending or threatened against any landlord for failure to have per- formed or completed any such work, except to the extent any failure of such work to be performed, individually or in any Tenant Estoppelthe aggregate, all Rents due and payable under each Lease could not reasonably be expected to have been paid in full anda material adverse effect on the business, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leasescondition (financial or otherwise), no Rents have been paid more than one (1) month in advance assets, operations or prospects of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesCompany or its Subsidiaries taken as a whole.
Appears in 1 contract
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the The Property is not subject to any Leases leases, subleases, licenses, concessions or other than agreements related to the Leases described in leasing or renting of the Property or any portion thereof, except as set forth on the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunderas defined herein). To Borrower’s best knowledge no Person No person has any possessory interest in the Property or right to occupy the same same, except under and pursuant to the Leases. Borrower hereby represents that: (i) Borrower has delivered a schedule (the “Rent Roll”) of all Leases affecting the Property, which accurately and completely sets forth in all material respects for each Lease, the following: the name of the Tenant, the Lease expiration date, extension and renewal provisions, the base rent payable, the security deposit held thereunder and any other material provisions of the Leases (such Lease, which Rent Roll is true, correct and any existing subleases thereunder) or pursuant to the Ground Lease. As complete as of the date hereof hereof; and (iii) the Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) the Leases, and there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease all or any portion of the Leases or any portion of the Rents and Profits which are presently outstanding and have priority over the Assignment assignment of Leases leases and Rentsrents contained herein in Section 1.9 given by Borrower to Lender; and (iii) true each Lease constitutes the legal, valid and correct copies binding obligation of the Leases have been delivered by Borrower to Lender or made available to Lender and, to the best of Borrower’s knowledgeknowledge and belief, is enforceable against the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereofTenant thereunder; and (iv) to Borrower’s best knowledgeno default exists, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage passing of time or the giving of notice or bothboth would exist, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledgeLease which would, except as expressly set forth in the Leasesaggregate, have a material adverse effect on Borrower or the Property; and (v) no Tenant Estoppels has any offset or on the Rent Roll, there are no offsets or defenses defense to the payment of any portion of the Rentsrent under its Lease; and (viivi) to Borrower’s best knowledgeno Tenant has, except as disclosed on of the Rent Roll or in any Tenant Estoppeldate hereof, all Rents due and payable paid rent under each its Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance advance, and the rents under such Lease has not been waived, released, or otherwise discharged or compromised; and (vii) all work required to be performed by Borrower as of the due dates thereof. For purposes date hereof under each Lease has been substantially performed as of the preceding sentencedate hereof, all contributions to be made as of the term “Lease” shall exclude subleasesdate hereof by Borrower to the Tenant thereunder have been made and all other conditions precedent to each Tenant’s obligations thereunder have been satisfied; and (viii) Borrower has delivered to Lender true, correct and complete copies of all Leases described in the Rent Roll; and (ix) to the best of Borrower’s knowledge and belief, each Tenant is free from bankruptcy, reorganization or arrangement proceedings or a general assignment for the benefit of creditors; and (x) no Lease provides any party with the right to obtain a lien or encumbrance upon the Property superior to the lien of this Mortgage.
Appears in 1 contract
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”a) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Major Lease is in full force and effect; (vb) the premises demised under the Major Leases have been completed, all alterations or other work required to Borrower’s best knowledge, except as disclosed be performed on the Rent Roll part of Mortgage Borrower or Operating Lessee has been completed, and the Tenants under the Major Leases have accepted possession of and are in physical occupancy of all of their respective demised premises; (c) the Tenants under the Major Leases have commenced the payment of rent under the Major Leases, there are no offsets, claims or defenses to the enforcement thereof, and neither Mortgage Borrower nor Operating Lessee has any tenant estoppels delivered monetary obligations to Lender in connection with the Loan (collectively, the “any Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Major Lease; (vid) to Borrowerall Rents due and payable under the Major Leases have been paid and no portion thereof has been paid for any period more than thirty (30) days in advance; (e) no Tenant has made any written claim of a material default against the landlord under any Major Lease which remains outstanding; (f) there is no present material default by the 00000000.0.XXXXXXXX Tenant under any Major Lease; (g) all security deposits under the Major Leases have been collected by Mortgage Borrower or Operating Lessee; (h) Mortgage Borrower or Operating Lessee is the sole owner of the entire landlord’s best knowledgeinterest in each Major Lease; (i) each Major Lease is the valid, except binding and enforceable obligation of Mortgage Borrower and/or Operating Lessee and the applicable Tenant thereunder and there are no agreements with the Tenants under the Major Leases other than as expressly set forth in the Major Leases; (j) no Person has any possessory interest in, the Tenant Estoppels or on the Rent Rollright to occupy, there are no offsets any Individual Property or defenses to the payment of any portion thereof except under the terms of a Lease or as a hotel guest; (k) none of the RentsLeases contains any option or offer to purchase or right of first refusal or right of first offer to purchase or lease any Individual Property or any part thereof; and (viil) to Borrower’s best knowledge, except as disclosed on neither the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Leases nor the Rents have been paid more than one (1) month in advance assigned, pledged or hypothecated except to Mortgage Lender. Borrower represents that it has heretofore delivered to Lender true, correct and complete copies of the due dates all Major Leases and any and all amendments or modifications thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleases.
Appears in 1 contract
Samples: Mezzanine D Loan Agreement (Ashford Hospitality Trust Inc)
Leases. To Borrower’s best knowledge the The rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is is, to Borrower’s knowledge, true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunderRoll. To Borrower’s best knowledge no Person has any possessory interest in knowledge, except as set forth on the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof Rent Roll: (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (ii) the tenants under the Leases have accepted possession of and are in occupancy of all of their respective demised premises, have commenced the payment of rent under the Leases, and there are no offsets, claims or defenses to the enforcement thereof; (iii) all rents due and payable under the Leases have been paid and no portion thereof has been paid for any period more than thirty (30) days in advance; (iv) the rent payable under each Lease is the amount of fixed rent set forth in the Rent Roll, and there is no claim or basis for a claim by the tenant thereunder for an adjustment to the rent; (v) to Borrower’s best knowledge, except as disclosed on no tenant has made any claim against the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant landlord under any Lease is in default which remains outstanding, there are no defaults on the part of the landlord under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of and no event has occurred which, but for the passage of time or with the giving of notice or passage of time, or both, would constitute an event of default under any Leasesuch a default; (vi) to Borrower’s best knowledge, except as expressly set forth in there is no present material default by the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of tenant under any portion of the RentsLease; and (vii) to Borrower’s best knowledge, except all security deposits under Leases are as disclosed set forth on the Rent Roll or and are held consistent with Section 3.8 hereof; (viii) Borrower is the sole owner of the entire lessor’s interest in any Tenant Estoppel, all Rents due and payable under each Lease; (ix) each Lease have been paid in full andis the valid, binding and enforceable obligation of the Borrower and the applicable tenant thereunder and (x) no Person has any possessory interest in, or right to occupy, the Property except for estimated payments under the terms of operating expenses and taxes made by tenants in accordance with their Leases, no the Lease. None of the Leases contains any option to purchase or right of first refusal to purchase the Property or any part thereof. Neither the Leases Table of Contents nor the Rents have been paid more than one (1) month in advance of assigned or pledged except to Lender, and no other Person has any interest therein except the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasestenants thereunder.
Appears in 1 contract
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules (a) All Leases and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any all renewals of Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of executed after the date hereof (other than renewals of existing Leases which are required pursuant to the terms of such Leases) shall (i) Borrower is the owner and holder of the landlord’s interest under each Lease; provide for economic terms, including rental rates comparable to existing local market rates for similar properties, (ii) there are no prior assignments be on commercially reasonable terms, (iii) unless Lender approves in writing a shorter term, have a term of not less than one (1) year (provided that the landlord’s interest by Borrower requirement set forth in this clause (iii) shall not apply to license agreements or Leases which demise less than 5,000 square feet of space at the Property), (iv) provide that such Lease is subordinate to the March 31, 2003 Mortgage and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of that the Leases have been delivered by Borrower tenant thereunder will attorn to Lender or made available to Lender andand any purchaser at a foreclosure sale, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or be written substantially in any tenant estoppels delivered to Lender in connection accordance with the Loan standard form of Lease which shall have been approved by Lender (collectively, subject to any commercially reasonable changes made in the “Tenant Estoppels”course of negotiations with the applicable tenant), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) not be to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels an Affiliate of Borrower or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; Guarantor and (vii) not contain any option to purchase, any right of first refusal to purchase, any requirement for a non-disturbance or recognition agreement (provided that any Lease with a national retailer may contain a requirement that Lender enter into a subordination, non-disturbance and recognition agreement on Lender's then current form), or any other terms which would materially adversely affect Lender's rights under the Loan Documents. All Major Leases and all renewals, amendments and modifications thereof executed after the date hereof shall be subject to Lender's prior approval, which approval shall not, so long as no Event of Default is continuing, be unreasonably withheld or delayed (provided, that Lender's failure to approve or disapprove Borrower’s best knowledge's request to enter into, except renew or modify such Major Lease within 10 Business Days after Lender's receipt of such request containing a legend in bold letters stating that Lender's failure to respond within ten (10) Business Days shall be deemed consent or approval, Lender shall be deemed to have approved or consented to the matter for which Lender's consent or approval was sought if Lender fails to respond to such written request before the expiration of such ten (10) Business Day period). Lender shall execute and deliver a subordination non-disturbance and attornment agreement in form and substance acceptable to Lender to Tenants under any future Major Lease approved by Lender or any other Lease with a national retailer promptly upon request with such commercially reasonable changes as disclosed on the Rent Roll or in any Tenant Estoppelmay be requested by Tenants, all Rents due from time to time, and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleaseswhich are reasonably acceptable to Lender.
Appears in 1 contract
Leases. To Borrower(a) Prior to execution of any Leases of space in the Improvements after the date hereof, Borrower shall submit to Lender, for Lender’s best knowledge prior approval, which approval shall not be unreasonably withheld, a copy of the rent roll attached hereto as Schedule 3 together form Lease Borrower plans to use in leasing space in the Improvements or at the Property. All such Leases of space in the Improvements or at the Property shall be on terms consistent with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described terms for similar leases in the Rent Roll and those additional Leases (market area of the Premises, shall provide for free rent only if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest the same is consistent with prevailing market conditions, shall provide for market rents then prevailing in the Property or right to occupy market area of the same except under Premises and pursuant to the provisions substantially all of the Leases at the Property shall be for a term of not less than twelve (12) months. Such Leases shall provide parental guaranties and any existing subleases thereunder) or pursuant may also provide for security deposits in reasonable amounts consistent with prevailing market conditions. Borrower shall also submit to Lender for Lender’s approval, which approval shall not be unreasonably withheld, prior to the Ground execution thereof, any proposed Lease of the Improvements or any portion thereof that differs materially and adversely from the aforementioned form Lease. As Borrower shall not execute any Lease for all or a substantial portion of the date hereof (i) Borrower is Property, except for an actual occupancy by the owner Tenant, lessee or licensee thereunder, and holder shall at all times promptly and faithfully perform, or cause to be performed, all of the covenants, conditions and agreements contained in all Leases with respect to the Property, now or hereafter existing, on the part of the landlord, lessor or licensor thereunder to be kept and performed. Borrower shall furnish to Lender, within ten (10) days after a request by Lender to do so, but in any event by January I of each year, a current Rent Roll, certified by Borrower as being true and correct, containing the names of all Tenants with respect to the Property, the terms of their respective Leases, the spaces occupied and the rentals or fees payable thereunder and the amount of each Tenant’s interest under security deposit, if any. Upon the request of Lender, Borrower shall deliver to Lender a copy of each such Lease; (ii) there are no prior assignments of . Borrower shall not do or suffer to be done any act, or omit to take any action, that might result in a default by the landlord’s interest by Borrower (, lessor or licensor under any such Lease or allow the Tenant thereunder to withhold payment of rent or cancel or terminate same and to Borrower’s knowledge shall not further assign any prior landlord) in any such Lease or any portion such Rents and Profits. Borrower, at no cost or expense to Lender, shall enforce, short of Rents which are presently outstanding termination, the performance and have priority over observance of each and every condition and covenant of each of the Assignment of parties under such Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender shall not anticipate, discount, release, waive, compromise or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in otherwise discharge any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default rent payable under any of the material termsLeases except to the extent consistent with prudent collection practices. Notwithstanding the foregoing, covenants or provisions of the Leaseat any time and from time to time, andLender shall be entitled to, except as disclosed and Borrower hereby grants to Lender the right to, undertake any and all action as may be required (in writing the sole discretion of Lender) to cure any default, or in any Tenant Estoppels, Borrower knows of no event which, but for which with the passage of time or following any notice and cure period shall constitute a default by Borrower, under such Leases. Borrower shall not, without the giving prior written consent of notice or bothLender, would constitute an event modify any of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, terminate or accept the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment surrender of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, waive or release any other party from the performance or observance of any obligation or condition under such Leases except in the normal course of business in a manner which is consistent with sound and customary leasing and management practices for similar properties in the community in which the Property is located. Borrower represents, warrants and covenants that no Rents have been paid anticipated, discounted, released, waived, compromised or otherwise discharged, except for prepayment of rent of not more than one (1) month in advance prior to the accrual thereof, except for prepayments for up to thirty percent (30%) of the due dates thereof. For purposes of Leases at the preceding sentence, Property consistent with sound and customary leasing practices for similar properties in the term “Lease” shall exclude subleasescommunity in which the Property is located.
Appears in 1 contract
Samples: , Security Agreement and Fixture Filing (Campus Crest Communities, Inc.)
Leases. To All leases, licenses and other agreements with regard to the ------ occupancy of the Project, including patient and resident care agreements and service agreements which include an occupancy agreement ("LEASES") shall be in form and substance reasonably acceptable to Lender; provided Borrower need not seek Lender's approval for any new Qualified Non-Residential Lease entered into hereafter. Borrower shall submit for Lender's approval a copy of the form of residential Lease Borrower proposes to utilize at the Project, and all residential Leases entered into after the Closing Date shall be on forms reasonably approved by Lender without material modification. Lender must approve all non-residential Leases of any part of the Project; provided, however, Lender's approval shall not be required for (but Borrower shall provide Lender with a copy of) the execution, amendment, surrender or termination of any Lease of non-residential space with an occupant thereof which provides for market rentals and otherwise contains market terms and provisions, so long as such Lease is not entered into with any Guarantor or any of its or Borrower’s best knowledge 's Affiliates, does not have a term (including extension options in favor of lessee) in excess of two (2) years and will not (in Lender's reasonable estimation) account for Twenty-Five Thousand and No/100 Dollars ($25,000.00) or more of gross revenue from the Project in any one (1) year period (a "QUALIFIED NON-RESIDENTIAL LEASE"). On the Closing Date, Borrower shall deliver to Lender a rent roll attached hereto as Schedule 3 together with showing all existing Leases. On the schedules and the exhibits attached to such rent roll (collectivelyClosing Date, the “Rent Roll”) is true, complete and correct and the Property is not subject to any all existing Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is shall be in full force and effect; (v) effect and Borrower shall submit a revised and recertified rent roll for the Project. If any non-residential leases, other than Qualified Non-Residential Leases, exist or are hereafter entered into with respect to Borrower’s best knowledgethe Project, except as disclosed on the Rent Roll or in any each tenant estoppels delivered thereunder shall execute and deliver to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses prior to the payment of any portion of the Rents; Closing or prior to execution thereof by Borrower, as applicable, a Subordination and (vii) Attornment Agreement in a form acceptable to Borrower’s best knowledgeLender, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made if requested by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereofLender. For purposes of the preceding sentence, the term “Lease” shall exclude subleases3.7.
Appears in 1 contract
Samples: Loan Agreement (Emeritus Corp\wa\)
Leases. To No Borrower shall, without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld), enter into any lease for space in the applicable Project if such lease is a Material Lease. All Leases for space at the Project (including Material Leases) shall be (x) on the applicable Borrower’s best knowledge the rent roll standard form of lease, a copy of which is attached hereto as Schedule 3 together Exhibit E, with such non-material changes as shall be commercially reasonable effected as a result of negotiations with the schedules applicable Tenant and, (y) subject and subordinate to the Loan Documents and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and Liens granted pursuant to the provisions of the Leases Collateral Documents (and any existing subleases thereunder) or either pursuant to the Ground Lease. As terms of the date hereof (i) Lease or a subordination, non-disturbance and attornment agreement entered into by the Tenant, the applicable Borrower is and the owner and holder Agent). No Borrower will amend any Material Lease without Administrative Agent’s prior written consent, not to be unreasonably withheld, conditioned or delayed. No Borrower will amend any Lease in effect as of the landlord’s interest under each Lease; Closing Date to extend the term to more than five (ii5) there are no years from the date of such amendment or grant to the Tenant thereunder a renewal option or to expand the premises leased to such Tenant or any Affiliate of such Tenant to more than 7,500 square feet, without the prior assignments written consent of the landlord’s interest by Administrative Agent, not to be unreasonably delayed. No Borrower (and to Borrower’s knowledge shall collect any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance or, without limitation of the due dates thereofforegoing, amend or modify any Lease in any material respect or hold any security or other deposit under a Lease, except in accordance with applicable Law and the applicable Lease. For purposes With respect to any written request (including an e-mail request) by Borrower to Administrative Agent for consent to a Material Lease (or any amendment or modification thereto), Administrative Agent shall either approve or deny such request within ten (10) Business Days following receipt of the preceding sentencesuch request, and if Administrative Agent fails to respond to Borrower within such ten (10) day period, the term “Lease” request shall exclude subleasesbe deemed to have been denied.
Appears in 1 contract
Leases. To Borrower’s best knowledge (a) During the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectivelyOption Period, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof BRE shall (i) Borrower is continue its present rental program and efforts with respect to the owner and holder of Property (as defined in the landlord’s interest under each Lease; Purchase Agreement) to rent vacant space and, (ii) there except with respect to any Contemplated Leases listed on Schedule A hereto (which Contemplated Leases are no deemed consented to by Prime), enter into and execute new leases and extensions, renewals and expansions with respect to the existing tenancies ("New Leases"), either (a) in accordance with the leasing guidelines set forth on Exhibit C hereto (the "Leasing Guidelines") or (b) upon receipt from Prime of Prime's prior written consent to same, which consent shall not be unreasonably withheld or (c) without the consent of Prime, provided that, notwithstanding anything to the contrary contained herein, BRE shall act in a commercially reasonable manner and shall be responsible for all Buyer's Leasing Costs with respect to such New Lease entered into pursuant to this subsection 15(c). If a New Lease requires Prime's prior written consent pursuant to subsection 15(b) hereof, and Prime does not object within ten Business Days (as defined in the Purchase Agreement) after receipt of a copy of a term sheet containing the material terms of such New Lease, the financial and credit and other information relating to the tenant reasonably requested by Prime and copies of all agreements entered into with the tenant to induce the tenant to execute a New Lease, then Prime shall be deemed to have approved same. With respect to any amendments, terminations, modifications, surrender agreements, assignments and approvals of sublease agreements with respect to existing tenancies ("Lease Modifications"), BRE shall have the right in its sole discretion and without regard to the Leasing Guidelines, to execute and approve of any such Lease Modification, provided that BRE shall act at all times in a commercially reasonable manner and shall not enter into any Lease Modifications which have a material adverse affect on the value of the landlord’s interest by Borrower Property and further provided that such Lease Modifications are not inconsistent with BRE's past practices at the Property. For the avoidance of doubt, Prime hereby acknowledges and agrees that (and x) BRE in its sole discretion shall have the right to Borrower’s knowledge terminate any prior landlord) tenancy, regardless of whether such termination is pursuant to a New Lease, a Lease Modification or otherwise if BRE determines in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any its sole discretion that said tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any the terms of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; its lease and (viiy) BRE has the right to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due enter into New Leases pursuant to and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1subsection 15(c) month in advance without the consent of Prime and BRE's entry into and execution of such New Leases shall not be deemed a breach of this Option Agreement or the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesPurchase Agreement.
Appears in 1 contract
Leases. To Borrower’s best knowledge The Property is not subject to any Material Leases other than the Affiliate Leases and the Leases described in the certified rent roll attached hereto as Schedule 3 together delivered in connection with the schedules and origination of the exhibits attached to Loan. To the Best of Borrower's Knowledge (which shall include Borrower's consultation with Manager), such certified rent roll (collectively, the “Rent Roll”) is true, complete and correct and in all material respects as of the Property is not subject to any Leases other than the Leases date set forth therein. Except as described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge Ground Leases, no Person has any possessory interest in the Property or right to occupy the same (other than typical short-term occupancy rights of hotel guests which are not the subject of a written agreement) except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to Leases. To the Ground Lease. As Best of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge's Knowledge, the current Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is are in full force and effect; effect and there are no material defaults thereunder by either party (v) to Borrower’s best knowledge, except other than as expressly disclosed on the Rent Roll certified rent roll delivered to Lender or in any tenant estoppels the Tenant estoppel certificates delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any closing of the material termsLoan) and there are no conditions that, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for with the passage of time or the giving of notice notice, or both, would constitute an event material defaults thereunder. To the Best of default Borrower's Knowledge, all construction and other obligations of a material nature to be performed by the Borrower under the Leases have been satisfied and) any required payments by Borrower to the Tenants under the Leases for tenant improvements have been made to the extent required to be satisfied. To the Best of Borrower's Knowledge, no Tenant under any Lease; (vi) Lease is entitled to any offsets, abatements, deductions against the Rent payable under any Lease from and after the date hereof. To the Best of Borrower’s best knowledge's Knowledge, except as expressly set forth in the Rent has been paid current under the Leases, . To the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment Best of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases's Knowledge, no Rents have Rent has been paid more than one (1) month in advance of its due date, except as disclosed in the due dates thereof. For purposes Tenant estoppel certificates delivered to Lender in connection with the closing of the preceding sentenceLoan. There has been no prior sale, transfer or assignment, hypothecation or pledge by Borrower of any Lease or of the term “Rents received therein, which will be outstanding following the funding of the Loan, other than those being assigned to Lender concurrently herewith. No Tenant or other Person under any Lease or other agreement has any right or option pursuant to such Lease or other agreement or otherwise to purchase all or any part of the Property (except with respect to the options in the PGA Agreements which are fully insured over by the Title Policy). Lender hereby agrees that on the date Borrower delivers to Lender a "clean" tenant estoppel certificate in the form attached hereto as Exhibit G regarding any Lease for which Borrower has not delivered a tenant estoppel certificate to Lender on the date hereof (each such Lease” , a CERTIFYING LEASE), Borrower's representations in this Section 4.1.27 with respect to such Certifying Lease shall exclude subleasesautomatically expire.
Appears in 1 contract
Samples: Loan and Security Agreement (CNL Hotels & Resorts, Inc.)
Leases. To Borrower’s best knowledge Borrower represents and warrants to Lender with respect to the Leases that: (a) the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) II is true, complete and correct and the Property is not subject to any Leases other than the Leases described in Schedule II, (b) the Rent Roll and those additional Leases (if any) identified on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there II are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses defaults thereunder by either party, and Borrower has not received any notice of termination with respect to any such Leases, (c) the payment of any portion copies of the Rents; Leases delivered to Lender are true and complete, and there are no oral agreements with respect thereto, (viid) to Borrower’s best knowledge, except as disclosed on the no Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have (excluding security deposits) has been paid more than one (1) month in advance of its due date, (e) all work to be performed by Borrower under each Lease has been performed as required and has been accepted by the due dates thereof. For purposes applicable Tenant, (f) any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant has already been received by such Tenant, (g) the Tenants under the Leases have accepted possession and are in occupancy of, and are open for business and conducting normal business operations at, all of their respective demised premises, and are paying full, unabated rent under the Leases, (h) Borrower has delivered to Lender a true, correct and complete list of all security deposits made by Tenants at the Property which have not been applied (including accrued interest thereon), all of which are held by Borrower in accordance with the terms of the preceding sentenceapplicable Lease and applicable Legal Requirements, (i) each Tenant under a Major Lease is free from bankruptcy or reorganization proceedings, (j) no Tenant under any Lease (or any sublease) is an Affiliate of Borrower, any Guarantor or Manager, (k) no Tenant under any Lease is in default under the terms and conditions of such Lease, (l) there are no brokerage fees or commissions due and payable in connection with the leasing of space at the Property, except as has been previously disclosed to Lender in writing, and no such fees or commissions will become due and payable in the future in connection with the Leases, including by reason of any extension of such Lease or expansion of the space leased thereunder, except as has previously been disclosed to Lender in writing, (m) Borrower has not assigned or pledged any of the Leases, the rents thereunder or any interest therein except to Lender, (n) no Tenant or other Person has any option, right of first refusal or offer or any other similar right to purchase all or any portion of, or interest in, the Property, (o) no Tenant has the right to terminate its Lease prior to the expiration of the stated term “thereof except, to the extent contained in the Lease” shall exclude subleases, in the event of the destruction or condemnation of substantially all of the Property, (p) no Tenant has assigned its Lease or sublet all or any portion of the premises demised thereby, and (q) all existing Leases are subordinate to the Mortgage and the Assignment of Leases and provide that the Tenant thereunder will attorn to Lender and any purchaser at a foreclosure sale.
Appears in 1 contract
Leases. To Borrower’s best knowledge Borrowers have delivered to Lender a true, correct ------ and complete rent roll for each Collateral Property (each a, "RENT ROLL"), which includes all Leases affecting such Collateral Property (including schedules for all executed Leases for tenants not yet in occupancy or under which the rent roll attached hereto commencement date has not occurred). Except as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described set forth in the Rent Roll Rolls and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been estoppel certificates delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; Funding Date for the applicable Collateral Property: (ivi) to the best of each Borrower’s best 's knowledge, each Lease is in full force and effect; (ii) the tenants under the Leases have accepted possession of and are in occupancy of all of their respective demised premises, have commenced the payment of rent under the Leases, and, to the best of each Borrower's knowledge, there are no offsets, claims or defenses to the enforcement thereof; (iii) to the best of each Borrower's knowledge, all rents due and payable under the Leases have been paid and no portion thereof has been paid for any period more than 30 days in advance; (iv) the rent payable under each Lease is the amount of fixed rent set forth in the Rent Roll, and, to the best of each Borrower's knowledge, there is no claim or basis for a claim by the tenant thereunder for an adjustment to the rent; (v) to the best of each Borrower’s best 's knowledge, except as disclosed on no tenant has made any written claim against the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant landlord under any Lease is in default which remains outstanding, there are no defaults on the part of the landlord under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of and no event has occurred which, but for the passage of time or with the giving of notice or passage of time, or both, would constitute an event of such a default; (vi) to each Borrower's best knowledge, there is no present material default by the tenant under any Lease; (vivii) no Borrower holds any security deposits under the Leases; (viii) a Borrower is the sole owner of the entire lessor's interest in each Lease; (ix) to the best of each Borrower’s best 's knowledge, except as expressly set forth in each Lease is the Leasesvalid, binding and enforceable obligation of a Borrower and the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rentsapplicable tenant thereunder; and (viix) to the best of each Borrower’s best 's knowledge, no Person has any possessory interest in, or right to occupy, any Collateral Property except as disclosed on under the Rent Roll or in terms of a Lease. Notwithstanding the foregoing, the breach of any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes representations contained in the preceding sentence shall not constitute an Event of Default provided that (i) the relevant Lease is not a Material Lease and (ii) the facts resulting in such breach do not, after taking into account all other facts resulting in other breaches of the representations contained in the preceding sentence, do not have a material adverse affect on the term “Lease” shall exclude subleasesvalue, Underwritten Net Operating Income, use or operation of any Collateral Property. None of the Leases contains any option to purchase or right of first refusal to purchase any Collateral Property or any part thereof. Neither the Leases nor the Rents have been assigned or pledged except to Lender, and no other Person has any interest therein except the tenants thereunder.
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Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other Other than the Leases described in the Rent Roll and those additional Leases (if any) listed on Schedule 2 attached Exhibit I hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has New Leases executed in accordance with Section 9.2, above, Seller is not a party to any possessory interest in the Property other leases, licenses or right to occupy the same except under and pursuant other occupancy agreements with respect to the provisions leasing or occupancy of the Property. Buyer acknowledges and agrees that the expiration of any Lease or New Lease on or prior to Closing shall not constitute a change of representation or warranty under this Article 11. With respect to the Leases, (i) all of the Leases (are in full force and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Leaseeffect except as otherwise set forth on Exhibit I; (ii) there are no prior assignments to Seller’s knowledge, neither Seller nor any tenant is in monetary default beyond any applicable notice and cure period or has given written notice of any existing material non-monetary default under any of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and RentsLeases; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed set forth on Exhibit K and Exhibit L attached hereto, there are no Leasing Costs, rent concessions, or other tenant inducements that remain unpaid, unapplied, or otherwise outstanding with respect to Lender any Lease, including in writing on connection with any amendment or prior to the date hereofsupplement to, or modification of, any Lease; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to BorrowerSeller’s knowledge, Seller has not received any written notice that any tenant under any Lease is a party to any bankruptcy or insolvency proceeding (other than as a creditor) or is otherwise insolvent; (v) unless noted on Exhibit M, no Tenant is more than thirty (30) days in default under any arrears on the payment of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Leaserent; and (vi) to Borrower’s best knowledgeExhibit N includes a true, except as expressly set forth in the Leasescorrect, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses and complete list of all security deposits (including Letters of Credit) actually held by Seller with respect to the payment of any portion Leases as of the Rents; and Effective Date (vii) to Borrower’s best knowledge, except be updated as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesClosing Date).
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Leases. To Borrower’s best knowledge (a) Except as disclosed in the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and for the Property is not subject delivered to any Leases other than the Leases described and approved by Lender in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant writing prior to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof hereof, (i) Borrower is the sole owner and holder of the landlord’s entire lessor's interest under each Leasein the Leases; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is are valid and enforceable and in full force and effect; (viii) to Borrower’s best knowledgeall of the Leases are arms-length agreements with bona fide, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan independent third parties; (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant iv) no party under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender default; (v) all Rents due have been paid in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Leasefull; (vi) the terms of all alterations, modifications and amendments to Borrower’s best knowledge, except as expressly set forth the Leases are reflected in the Leases, certified occupancy statement delivered to and approved by Lender; (vii) none of the Tenant Estoppels Rents reserved in the Leases have been assigned or otherwise pledged or hypothecated; (viii) none of the Rents have been collected for more than one (1) calendar quarter in advance (except a security deposit shall not be deemed rent collected in advance); (ix) the premises demised under the Leases have been completed and the tenants under the Leases have accepted the same and have taken possession of the same on the Rent Roll, a rent-paying basis; (x) there are exist no offsets or defenses to the payment of any portion of the RentsRents and Borrower has no monetary obligation to any tenant under any Lease; (xi) Borrower has received no notice from any tenant challenging the validity or enforceability of any Lease; (xii) there are no agreements with the tenants under the Leases other than expressly set forth in each Lease; (xiii) the Leases are valid and enforceable against Borrower and the tenants set forth therein; (viixiv) to Borrower’s best knowledge, except as disclosed on provided in the Rent Roll Ground Lease and the Foster Wheeler Lease, no Lease contains an option to purcxxxx, xxxxx xx first refusal to purchase or in any Tenant Estoppelother similar provision; (xv) no person or entity has any possessory interest in, all Rents due or right to occupy, the Property except under and payable under pursuant to a Lease; (xvi) each Lease have been paid in full andis subordinate to this Security Instrument, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleases.either pursuant to its terms or a recordable subordination agreement;
Appears in 1 contract
Samples: Mortgage and Security Agreement (Corporate Property Associates 15 Inc)
Leases. To Borrower’s the best knowledge the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property of Seller's knowledge: Seller is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Tenant Lease, andnor is there in existence any condition or fact which with notice or lapse of time, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event a default thereunder; Seller (or its management company) is in possession of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly all tenant security deposits in the amounts set forth in the Tenant Leases; no such tenants shall be entitled to any rebates, revenue participations, rent concessions, rent limitations or free rent or renewal options, except as provided in the Tenant Estoppels Leases; no express written commitments have been made to any tenant for repairs or on improvements, by Seller, as landlord, which remain to be completed or paid for in full (except as provided in Section 7.3 as to Suite 303); the Rent RollTenant Leases constitute the entire agreement between the landlord and tenant thereunder, and there are no offsets side letters or defenses to other agreements between the payment of any portion Landlord and each of the Rentstenants; and all Tenant Leases are the result of bona fide arm's-length negotiations with persons who are not affiliates of Seller; no rents due under any of said Tenant Leases have been assigned, hypothecated or encumbered (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll excepting therefrom any such hypothecations or in encumbrances being removed at Closing); no rents under any Tenant Estoppel, all Rents due and payable under each Lease Leases have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month prepaid in advance of the due dates thereof. For then current month which are not the subject of a credit under Section 8.5; and there are no fees or commissions payable to any third person or entity in regard to the subject property or any of said Tenant Leases (including any commissions payable upon the exercise of any renewal option under the Tenant Leases); no tenant under any Tenant Lease has received any financing, or commitment to extend financing, from Seller in respect of any tenant improvements or for any other purposes (except as provided in Section 7.3 as to Suite 303); and Seller will not, hereafter and prior to the Closing Date, modify any Tenant Lease, accept any termination or surrender of the preceding sentence, any Tenant Lease or enter into any agreement extending the term “of any Tenant Lease” shall exclude subleases., without the prior written consent of Purchaser;
Appears in 1 contract
Samples: Agreement for Purchase and Sale (Universal Health Realty Income Trust)
Leases. To Borrower’s best knowledge With respect to the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectivelyLeases, the “Rent Roll”) is trueLease Receivables and/or the Gross Lease Receivables, complete as the case may be, Borrower warrants and correct and the Property is not subject represents to any Leases other than the Leases described Lender that, unless otherwise indicated in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To writing by Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof : (i) Borrower is the owner they are genuine, are in all respects what they purport to be, are not evidenced by a judgment and holder of the landlord’s interest under each Leaseare only evidenced by one, if any, executed original instrument, agreement, contract or document; (ii) there are no prior assignments of they represent undisputed, bona fide transactions completed in accordance with the landlord’s interest by Borrower (terms and to Borrower’s knowledge any prior landlord) provisions contained in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rentsdocuments related thereto; (iii) true and correct copies the amounts of the face value shown on any Leases have been or schedules thereto or schedule of accounts or accounts receivable report delivered by or provided to Lender, and all invoices, statements and reports delivered or provided to Lender, with respect to any Gross Lease Receivables and/or Leases are actually and absolutely owing to Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have and are not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereofcontingent for any reason; (iv) to Borrower’s best knowledgethere are no setoffs, each Lease is in full force counterclaims or disputes existing or asserted with respect thereto and effectBorrower has not made any agreement with any Account Debtor thereunder for any deduction therefrom; (v) to Borrower’s best knowledgethere are no facts, except as disclosed on the Rent Roll events or occurrences which in any tenant estoppels way impair the validity or enforcement thereof or tend to reduce the amount payable thereunder from the amount of any such Lease Receivables and/or Leases, and on all contracts, reports, invoices and statements delivered or provided to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Leaserespect thereto; (vi) to the best of Borrower’s best knowledge's knowledge and belief, all Account Debtors, under any Gross Lease Receivables and/or Leases, (A) had the capacity to contract at the time any Lease or contract or other document giving rise to the Lease Receivable was executed, (B) are solvent, and (C) are not the subject of a bankruptcy or insolvency proceeding of any kind; (vii) the Lease Receivable, the Leased Equipment and the Leases giving rise to any such Lease Receivable are not subject to any Liens or claim or encumbrance, except as expressly set forth those of Lender, those removed or terminated prior to the date hereof and those subordinate to Lender's security interest (unless otherwise agreed by the Lender in its sole discretion); (viii) Borrower has no knowledge of any fact or circumstance which would impair the Leases, validity or collectibility thereof; (ix) to the Tenant Estoppels or on the Rent Rollbest of Borrower's knowledge and belief, there are no offsets proceedings or defenses actions which are threatened or pending against any Account Debtor thereunder which might result in any material adverse change in said party's financial condition; (x) they have not been pledged, assigned or transferred to any Person other than to the payment Lender; (xi) the Leases and any guarantees or undertakings of any portion of kind whatsoever regarding the Rents; same constitutes legal, valid and (vii) to Borrower’s best knowledge, except as disclosed on binding agreements enforceable against the Rent Roll or in Account Debtors and any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants guarantors in accordance with their Leasesrespective terms, no Rents have been paid more than one (1) month in advance of except to the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleases.extent that such enforcement may be limited by applicable bankruptcy,
Appears in 1 contract
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject With respect to any Leases other than entered into at any time after the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto date of this Agreement and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right Lease Receivables and/or Gross Lease Receivables related thereto, Borrower warrants and represents to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As Lender that as of the date hereof of any such Leases, Lease Receivables and/or Gross Lease Receivables, as the case may be, unless otherwise indicated in writing by Borrower: (ia) Borrower is they are genuine, are in all respects what they purport to be, are not evidenced by a judgment and are only evidenced by one, if any, executed original instrument, agreement, contract or document; (B) they represent undisputed, bona fide transactions completed in accordance with the owner terms and holder provisions contained in any documents related thereto; (C) the amounts of the landlord’s interest under each Leaseface value shown on any Leases or schedules thereto or schedule of accounts or accounts receivable report delivered or provided to Lender, and all invoices, statements and reports delivered or provided to Lender, with respect to any Gross Lease Receivables and/or Leases are actually and absolutely owing to Borrower and are not contingent for any reason; (iiD) there are no prior assignments of the landlord’s interest by setoffs, counterclaims or disputes existing or asserted with respect thereto and Borrower (and to Borrower’s knowledge has not made any prior landlord) in agreement with any Lease or Account Debtor thereunder for any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rentsdeduction therefrom; (iiiE) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets facts, events or defenses occurrences which in any way impair the validity or enforcement thereof or tend to reduce the payment amount payable thereunder from the amount of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Gross Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Receivables and/or Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentenceand on all contracts, the term “Lease” shall exclude subleases.reports,
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Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the The Mortgaged Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunderrent roll delivered to Mortgagee in connection with this Mortgage. To Borrower’s best knowledge no Person No person has any possessory interest in the Mortgaged Property or right to occupy the same except under and pursuant to the provisions of the Leases (and or any existing subleases thereunder) or pursuant to of the Ground LeasePermitted Exceptions. As of the date hereof hereof, (i) Borrower the Mortgagor is the owner and holder of the landlord’s 's interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents (the "Assignment of Leases and Rents"), dated the date hereof, given by Mortgagor to Mortgagee and intended to be duly recorded; (iii) true and correct copies of the Leases have no Lease has been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amendedamended and all Leases are in full force and effect, except as disclosed to Lender Mortgagee in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, Mortgagor nor any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower and Mortgagor knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no said Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes ; (viii) Mortgagor has not received any notice that any tenant of the preceding sentenceMortgaged Property intends to vacate their respective demised premises or otherwise cease operating at the Mortgaged Property and Mortgagor has no knowledge that any of the tenants of the Mortgaged Property intend to vacate their respective demised premises or otherwise cease operating at the Mortgaged Property; and (viii) none of the Leases at the Mortgaged Property are subject to any actions, whether voluntary or otherwise, against the term “Lease” shall exclude subleasestenants thereunder under the bankruptcy or insolvency laws of the United States or any state and to the best of Mortgagor's knowledge, no such actions have been threatened.
Appears in 1 contract
Samples: Rents and Security Agreement (Charming Shoppes Inc)
Leases. To Borrower’s best knowledge the Borrower has delivered to Lender a true, correct and complete rent roll attached hereto as Schedule 3 together with for the schedules and the exhibits attached to such rent roll Property (collectively, the “Rent Roll”) is true), complete and correct and which includes all Leases affecting the Property is not subject to any Leases other than the Leases described in Property. Except as set forth on the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof Roll: (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (ii) the tenants under the Leases have accepted possession of and are in occupancy of all of their respective demised premises, have commenced the payment of rent under the Leases, and there are no offsets, claims or defenses to the enforcement thereof; (iii) all rents due and payable under the Leases have been paid and no portion thereof has been paid for any period more than thirty (30) days in advance; (iv) the rent payable under each Lease is the amount of fixed rent set forth in the Rent Roll, and there is no claim or basis for a claim by the tenant thereunder for an adjustment to the rent; (v) to Borrower’s best knowledge, except as disclosed on no tenant has made any claim against the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant landlord under any Lease is in default which remains outstanding, there are no defaults on the part of the landlord under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of and no event has occurred which, but for the passage of time or with the giving of notice or passage of time, or both, would constitute an event of default under any Leasesuch a default; (vi) to Borrower’s best knowledge, except as expressly set forth in there is no present material default by the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of tenant under any portion of the RentsLease; and (vii) to Borrower’s best knowledge, except all security deposits under Leases are as disclosed set forth on the Rent Roll or and are held consistent with Section 3.8; (viii) Borrower is the sole owner of the entire lessor’s interest in any Tenant Estoppel, all Rents due and payable under each Lease; (ix) each Lease have been paid in full andis the valid, binding and enforceable obligation of Borrower and the applicable tenant thereunder; (x) no Person has any possessory interest in, or right to occupy, the Property except for estimated payments under the terms of operating expenses a Lease; and taxes made by tenants in accordance with their Leases(xi) each Lease is subordinate to the Loan Documents, no either pursuant to its terms or pursuant to a subordination and attornment agreement. None of the Leases contains any option to purchase or right of first refusal to purchase the Property or any part thereof. Neither the Leases nor the Rents have been paid more than one (1) month in advance of assigned or pledged except to Lender, and no other Person has any interest therein except the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasestenants thereunder.
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Leases. To Borrower’s best knowledge the rent roll The list of leases attached hereto as Schedule 3 together with Exhibit D-1 is true and correct in all material respects (the schedules “Leases”) and except as set forth in such exhibit, the exhibits Leases have not otherwise been amended, modified or supplemented. The Leases made available to Purchasers pursuant to Section 3.1 below are true, accurate and complete copies. The information set forth on the Rent Roll attached to such rent roll hereto as Exhibit D-2 (collectively, the “Rent Roll”) is true, complete true and correct and the Property is not subject to any Leases in all material respects. To Xxxxxx I’s knowledge, other than as set forth in Exhibit D-3 (the Leases described “Arrearage Schedule”), Landlord has not notified in writing any tenant that such tenant is in default, which default remains uncured as of the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunderdate hereof. To BorrowerXxxxxx I’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions knowledge, all of the Leases (are in full force and effect. Except for the loan referenced in Section 10.2 hereof, the documents evidencing and securing such loan and the Xxx-Xxxxx Agreement, none of the Leases nor any existing subleases thereunder) of the rents under the Leases will be otherwise assigned, pledged, or pursuant encumbered as of the Closing Date; provided, however no representation is given with respect to the Ground any assignments, pledges, or encumbrances that may have been created or granted by any tenant under any Lease. As of Except for the date hereof Leases, neither Fee Landlord, Overlandlord nor Landlord has granted any use or occupancy rights to any person or entity and, to Xxxxxx I’s knowledge (i) Borrower is Exhibit D-4 sets forth all subleases, license agreements or other occupancy agreements granted by any tenant under the owner Leases or by any predecessor-in-interest of Fee Landlord, Overlandlord or Landlord and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest any Leases (whether by Borrower (express assignment, stock transfer, merger or otherwise) other than those assignments as set forth in Exhibits D-1 and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to BorrowerD-5. To Xxxxxx I’s knowledge, the Leases have not been further modified neither Xxxxxx I or amendedFee Landlord, except as disclosed to Lender in writing on Overlandlord or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in Landlord has received any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except Leases which remains uncured as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesdate hereof.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Mack Cali Realty Corp)
Leases. To Borrower’s best knowledge the The rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) Roll. Except as set forth on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof Rent Roll: (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (ii) the tenants under the Leases have accepted possession of and are in occupancy of all of their respective demised premises, have commenced the payment of rent under the Leases, and there are no offsets, claims or defenses to the enforcement thereof; (iii) all rents due and payable under the Leases have been paid and no portion thereof has been paid for any period more than thirty (30) days in advance; (iv) the rent payable under each Lease is the amount of fixed rent set forth in the Rent Roll, and there is no claim or basis for a claim by the tenant thereunder for an adjustment to the rent; (v) to Borrower’s best knowledge, except as disclosed on no tenant has made any claim against the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant landlord under any Lease is in default which remains outstanding, there are no defaults on the part of the landlord under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of and no event has occurred which, but for the passage of time or with the giving of notice or passage of time, or both, would constitute an event of default under any Leasesuch a default; (vi) to Borrower’s best knowledge, except there is no present material default by the tenant under any Lease; (vii) all security deposits under Leases are as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to ; (viii) Borrower is the payment of any portion sole owner of the Rentsentire lessor’s interest in each Lease; (ix) each Lease is the valid, binding and enforceable obligation of the Borrower and the applicable tenant thereunder; (x) no Person has any possessory interest in, or right to occupy, the Property except under the terms of the Lease; and (viixi) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full andis subordinate to the Loan Documents, except for estimated payments either pursuant to its terms or pursuant to a subordination and attornment agreement. None of operating expenses and taxes made by tenants in accordance with their Leases, no the Leases contains any option to purchase or right of first refusal to purchase the Property or any part thereof. Neither the Leases nor the Rents have been paid more than one (1) month in advance of assigned or pledged except to Lender, and no other Person has any interest therein except the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasestenants thereunder.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital Daily Net Asset Value Trust, Inc.)
Leases. To Borrower represents and warrants to Lender with respect to Leases of the Project that: (1) the Tenant Lease and Tenant Guaranty are each valid and in and full force and effect; (2) to Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively's knowledge, the “Rent Roll”) resident roll delivered to Lender which describes the Subleases is true, complete true and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there Subleases are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v3) the Tenant Lease (including amendments) is in writing, and there are no oral agreements with respect thereto; (4) to Borrower’s best knowledge, except as disclosed on 's knowledge the Rent Roll or Subleases (including amendments) are in any tenant estoppels writing and there are no oral agreements with respect thereto; (5) the copy of the Tenant Lease and Tenant Guaranty delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower norare true and complete and, to Borrower’s 's knowledge, the Subleases reviewed by Lender are true and complete; (6) neither the Borrower nor Tenant is in default under the Tenant Lease; (7) to Borrower's knowledge neither the Tenant nor any tenant under a Sublease is in default with respect to any Sublease; (8) Borrower has no knowledge of any notice of termination or default with respect to any Lease; (9) Borrower has not assigned or pledged the Tenant Lease nor its interest in any Subleases, the rents or any interests therein except to Lender; (10) neither the Tenant, Tenant Guarantor, any tenant under a Sublease nor any other party has an option to purchase all or any portion of the Project; (11) except as provided therein, neither the Tenant, nor to Borrower's knowledge, any tenant under any a Sublease, has the right to terminate its Lease is in default under any prior to expiration of the material terms, covenants or provisions stated term of the such Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii12) neither the Tenant, nor to Borrower’s best 's knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppeltenant under a Sublease, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid has prepaid more than one (1) month month's rent in advance (except for bona fide security deposits not in excess of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesan amount equal to one month's rent).
Appears in 1 contract
Leases. To Borrower’s best knowledge Borrower is the rent roll attached hereto as Schedule 3 together with owner and lessor of landlord's interest in each Lease. Except to the schedules and the exhibits attached to such rent roll (collectivelyextent disclosed on Exhibit 4.23, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground each Lease. As There has been no prior sale, transfer or assignment, hypothecation or pledge of the date hereof (i) Borrower is the owner and holder Lease or of the landlord’s interest under rents received therein. Borrower has delivered to Lender a true and complete copy of each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each . Each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, effect and, except as disclosed subject to Lender in writing or in any Tenant EstoppelsExhibit 4.28, Borrower knows of (a) there are no event whichdefaults thereunder by either party and there are no conditions that, but for with the passage of time or the giving of notice notice, or both, would constitute an event of default under any Leasedefaults thereunder; (vib) to Borrower’s best knowledge, except as expressly set forth no rent (including security deposits) has been paid more than one (1) month in the Leases, the Tenant Estoppels or on the Rent Roll, advance of its due date; (c) there are no offsets or defenses to the payment of any portion of the Rentsrents; (d) all work to be performed by Borrower under the Lease has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant has already been received by such Tenant; (e) except to the extent disclosed on Exhibit 4.23, the Tenant under each Lease has not assigned its Lease or sublet all or any portion of the premises demised thereby, no Tenant holds its leased premises under assignment or sublease, nor does anyone except such Tenant and its employees occupy such leased premises; (f) except to the extent expressly set forth in the Lease, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part; (g) no Tenant under any Lease has any right or option for additional space in the Improvements; (h) the term of each Lease has commenced; (i) payment of base, fixed or minimum rent under each Lease has commenced; and (viij) to Borrower’s best knowledge(i) no Hazardous Materials have been disposed, except as disclosed on the Rent Roll stored or in treated by any Tenant Estoppelunder any Lease on or about the leased premises in excess of De Minimis Amounts or otherwise in violation of any Environmental Law, all Rents due and payable under each Lease (ii) nor does Borrower have been paid any knowledge of any Tenant's intention to use its leased premises for any activity which, directly or indirectly, involves the use, generation, treatment, storage, disposal or transportation of any Hazardous Materials in full and, except for estimated payments violation of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of Environmental Law or the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleases.
Appears in 1 contract
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules An accurate and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest summary thereof in a form reasonably satisfactory to the Agent as of the date of inclusion of the Collateral Property in the Property Collateral (or right to occupy the same except under and pursuant such other recent date as may be acceptable to the provisions Agent) with respect to all Leases of any portion of the Collateral Property has been provided to the Agent. The Leases reflected on such Rent Roll constitute as of the date thereof the sole agreements and understandings relating to leasing or licensing of space at the Collateral Property and in the Building relating thereto. Each of the Leases (was entered into as the result of arms-length negotiation and any existing subleases thereunder) has not been modified, changed, altered, assigned, supplemented or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) amended in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amendedrespect, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or reflected on the Rent Roll, there are and no offsets tenant is entitled to any free rent, partial rent, rebate of rent payments, credit, offset or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledgededuction in rent, including, without limitation, lease support payments or lease buy-outs, except as disclosed on reflected in the Rent Roll Roll. There are no occupancies, rights, privileges or licenses in any Tenant Estoppelor to the Collateral Property or portion thereof other than pursuant to the Leases reflected in Rent Rolls previously furnished to the Agent for the Collateral Property. Except as set forth in each Rent Roll, all Rents due and payable under each Lease have been paid the Leases reflected therein are in full and, except for estimated payments of operating expenses force and taxes made by tenants effect in accordance with their respective terms, without any payment default or any other material default thereunder, nor are there any defenses, counterclaims, offsets, concessions or rebates available to any tenant thereunder, and neither the Borrower nor the Guarantor has given or made, any notice of any payment or other material default, or any claim, which remains uncured or unsatisfied, with respect to any of the Leases. The Rent Rolls furnished to the Banks accurately and completely set forth all rents payable by and security, if any, deposited by tenants, no Rents have been tenant having paid more than one (1) month month's rent in advance advance. All tenant improvements or work to be done for tenants on the Rent Roll, furnished or paid for by the Borrower or the Guarantor, or credited or allowed to a tenant, for, or in connection with, the Building pursuant to any Lease has been completed and paid for or provided for in a manner satisfactory to the Agent. No material leasing, brokerage or like commissions, fees or payments are due from the Borrower or the Guarantor in respect of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesLeases.
Appears in 1 contract
Samples: Bridge Loan Agreement (Ramco Gershenson Properties Trust)
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”a) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof Borrower shall (i) Borrower is the owner observe and holder perform all of the landlord’s interest material obligations imposed upon the lessor under each Leasethe Leases; (ii) there are no prior assignments promptly send copies to Lender of the landlord’s interest by all notices of default that Borrower (and to Borrower’s knowledge shall send or receive under any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and RentsMajor Lease; (iii) true and correct copies promptly notify Lender of any tenant under a Major Lease at the Leases have been delivered by Property which has vacated, or has given Borrower written notice of its intention to Lender or made available to Lender and, to Borrower’s knowledgevacate, the Leases have not been further modified premises (or amended, except as disclosed any portion thereof) leased to Lender in writing on or prior such tenant pursuant to the date hereofapplicable Lease; and (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on enforce the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth and conditions in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses Leases to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made be observed by tenants in accordance with their Leasescommercially reasonable practices for properties similar to the Property. Borrower shall obtain the prior written approval of Lender, no Rents have been paid more than one which approval shall may be granted or withheld by Lender in Lender’s sole and absolute discretion, for the entry into any Lease, amendment thereto, assignment thereof, or subletting thereunder (1to the extent Borrower as landlord has approval rights over such subletting), and without limitation thereon, all Leases shall (A) month meet or exceed the Leasing Guidelines, (B) be with creditworthy tenants as determined by Lender in advance its reasonable discretion and (C) be documented using, without material deviation from, the standard lease form approved by Lender in its reasonable discretion. Lender’s failure to respond to a request from Borrower for approval within ten (10) Business Days of the due dates thereoflatter of (i) such receipt of such request and (ii) receipt of all information reasonably requested by Lender shall be deemed Lender’s approval, provided that Borrower delivers to Lender a writing marked in bold lettering with the following: “LENDER’S RESPONSE IS REQUIRED WITHIN 10 BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER” and the envelope containing the writing must be marked “PRIORITY” in bold letters. For purposes Any approval or deemed Lender approval of a Lease will be deemed to mean and include approval of the preceding sentencetenant improvements and leasing commissions thereunder (and release of the Leasing Holdback therefor, subject to other Holdback release conditions), and to any purchase option therein, the term “Lease” shall exclude subleasesterms of which would be permitted under Section 2.15.
Appears in 1 contract
Samples: Loan Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Leases. To Borrower’s best knowledge Operating Tenant represents and warrants to Administrative Agent and the Lenders with respect to the Leases for residential occupancy, that (i) with respect to the rent roll attached hereto as Schedule 3 together with or Census Report delivered to Administrative Agent on or before the schedules and the exhibits attached Closing Date, to Operating Tenant’s Knowledge, such rent roll (collectively, or Census Report for the “Rent Roll”) Project delivered to Administrative Agent is true, complete true and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Leasecorrect; (ii) there are no prior assignments of with respect to each rent roll or Census Report for the landlord’s interest by Borrower (Project delivered to Administrative Agent after the Closing Date, such rent roll or Census Report is true and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rentscorrect; (iii) true to Operating Tenant’s Knowledge, such Leases are valid and correct copies in and full force and effect; and (iv) the interests of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, sublandlord and the rents under such Leases have not been further modified assigned or amendedpledged, except as disclosed other to Lender in writing on or prior Administrative Agent (for the benefit of Lenders). Operating Tenant represents and warrants to Administrative Agent and Lenders with respect to the date hereofCommercial Leases, if any, that, to Operating Tenant’s Knowledge, (i) the rent roll with respect to such Commercial Leases, if any, delivered to Administrative Agent is true and correct; (ivii) to Borrower’s best knowledge, each Lease is such Commercial Leases are in full force and effect; (iii) the Commercial Leases (including amendments) are in writing, and there are no oral agreements with respect thereto; (iv) the copies of the Leases delivered to Administrative Agent are true and complete; (v) to Borrower’s best knowledge, except as disclosed on neither the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower sublandlord nor, to Borrower’s knowledgethe knowledge of Operating Tenant, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any LeaseCommercial Leases; (vi) Operating Tenant has no knowledge of any notice of termination or default with respect to Borrower’s best knowledge, except as expressly set forth in any Commercial Lease; (vii) Operating Tenant has not assigned or pledged any of the Commercial Leases, the rents or any interests therein except to Administrative Agent and the Lender; (viii) no Tenant Estoppels or on the Rent Roll, there are no offsets other party has an option to purchase all or defenses to the payment of any portion of the RentsProject; (ix) no Tenant has the right to terminate its Commercial Lease prior to expiration of the stated term of such Commercial Lease; (x) no Tenant has prepaid more than one month’s rent in advance (except for bona fide security deposits not in excess of an amount equal to two months’ rent); and (viixi) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppelunless otherwise approved by Administrative Agent, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with existing Commercial Leases are subordinate to the Mortgage either pursuant to their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesterms or a subordination agreement.
Appears in 1 contract
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together Borrowers shall furnish Lender with the schedules executed copies of all Leases. All renewals of Leases and the exhibits attached all proposed Leases shall provide for rental rates comparable to such rent roll (collectively, the “Rent Roll”) is true, complete existing local market rates and correct shall be arms-length transactions and the Property is not shall be subject to any the prior written approval of Lender. All Leases other than shall provide that they are subordinate to the Mortgages and that the lessee agrees to attorn to Lender. Borrowers shall: (A) observe and perform all the obligations imposed upon the lessor under the Leases described in and shall not do or permit to be done anything to impair the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions value of the Leases as security for the Debt; (and any existing subleases B) promptly send to Lender copies of all notices of default which Borrowers shall send or receive thereunder; (C) or pursuant to the Ground Lease. As enforce all of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions and conditions contained in the Leases on the part of the Leaselessee thereunder to be observed or performed, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows short of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Leasetermination thereof; (viD) to Borrower’s best knowledge, except not collect any Profits (as expressly set forth defined in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (viiMortgages) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance advance; (E) not execute any other assignment of the due dates thereof. For purposes lessor's interest in the Leases or Profits; (F) other than de minimis non-financial amendments, not alter, modify or change the terms of the preceding sentenceLeases without the prior written consent of Lender, or, except if a lessee is in default, cancel or terminate the term “Leases or accept a surrender thereof or convey or transfer or suffer or permit a conveyance or transfer of any Property or of any interest therein so as to effect a merger of the estates and rights of, or a termination or diminution of the obligations of, lessees thereunder. However, any Lease may be canceled if at the time of the cancellation thereof a new Lease is entered into with a bona fide, independent third-party on substantially the same terms or more favorable terms as the canceled Lease” ; (G) not alter, modify or change the terms of any guaranty of the Leases or cancel or terminate such guaranty without the prior written consent of Lender; (H) not consent to any assignment of or subletting under the Leases not in accordance with their terms, without the prior written consent of Lender; and (I) execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Properties as Lender shall exclude subleasesfrom time to time request.
Appears in 1 contract
Samples: Loan Agreement (Clubcorp Inc)
Leases. To BorrowerSeller shall have the right, prior to the expiration of the Due Diligence Period, to continue to offer the Property for lease in the same manner as prior hereto pursuant to its normal course of business and Seller shall keep Buyer reasonably informed as to the status of leasing prior to the Closing Date. At least five (5) days prior to the expiration of the Due Diligence Period, Seller shall give Buyer written notice of all new Leases and any amendments, modifications, terminations, renewals or extensions of any existing Leases then or theretofore entered into during the Due Diligence Period. After the expiration of the Due Diligence Period (unless Buyer shall have theretofore delivered a Termination Notice hereunder), Seller shall not enter into any new Leases or any amendments, modifications, terminations, renewals or extensions of any existing Leases without Buyer’s best knowledge prior written consent, which may be withheld in Buyer’s sole and absolute discretion. Buyer shall advise Seller, in writing, whether Buyer approves or disapproves any proposed New Lease or any such proposed modification, amendment or termination, within three (3) days after Buyer’s receipt of Seller’s written request therefor, each of which requests shall be accompanied by (i) a term sheet describing the rent roll attached hereto material terms of the proposed transaction, and (ii) appropriate financial information on the applicable tenant and such other information as Schedule 3 Buyer may reasonably require. If Buyer fails to notify Seller within such 3-day period, Buyer shall be deemed to have disapproved the proposed transaction. If Buyer timely disapproves of any proposed new Lease or any proposed modification, amendment, termination, renewal or extension of an existing Lease, Seller may nevertheless enter into such transaction; provided, however, if Seller enters into such transaction notwithstanding Buyer’s disapproval, Buyer may terminate this Agreement, whereupon the Escrow Deposit (together with the schedules all interest earned thereon) shall be immediately returned to Buyer. However, Buyer recognizes and the exhibits attached to such rent roll (collectively, the “Rent Roll”) acknowledges that Seller is true, complete and correct and the Property is not subject to any Leases other than the Leases described currently in the Rent Roll process of finalizing amendments/addendums to several leases, and those additional Leases (if any) on Schedule 2 attached hereto Seller will keep Buyer apprised of the status thereof and any existing subleases thereunder. To Borrowerprior to the execution thereof will obtain Buyer’s best knowledge no Person has any possessory interest approval in the Property or right to occupy the same except under and pursuant to accordance with the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the immediately preceding sentence, the term “Lease” shall exclude subleasesparagraph.
Appears in 1 contract
Samples: Purchase Agreement (Hines Real Estate Investment Trust Inc)
Leases. To Borrower’s best knowledge the rent roll attached hereto Except for those Leases set forth on Exhibit 4.23 existing as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases Effective Date, Borrower shall not, without the prior written consent of Lender (and which consent shall not be unreasonably withheld or delayed), enter into any existing subleases thereunder) or pursuant to the Ground Lease. As new Lease of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease all or any portion of Rents which are presently outstanding and have priority over the Assignment any Property with any Person (including with any Parent Company or an Affiliate of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender andany Parent Company), to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior agree to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll cancellation or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant surrender under any Lease is in default under of all or any portion of any Property, agree to prepayment of rents, issues or profits (other than rent paid at the signing of a Lease), modify any such Lease so as to shorten the term, decrease the rent, accelerate the payment of rent, or change the terms of any renewal option; and any such purported new Lease, cancellation, surrender, prepayment or modification made without the consent of Lender shall be void as against Lender. Borrower shall not permit the sublease of any Property or the assignment of any Lease to any Person (including to any Parent Company or an Affiliate of Borrower or any Parent Company) without Lender's prior written consent. Except for those agreements as to use set forth on Exhibit 4.23 existing as of the material termsEffective Date, covenants no Property shall be occupied or provisions operated by any Person that is not an Affiliate of the Lease, and, except as disclosed to Lender in writing Borrower or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly either Parent Company. Notwithstanding anything set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses this Section 6.14 to the payment contrary, Borrower, without the consent of Lender, may in the ordinary course of its business (a) sublease a portion of any Property to any Person or (b) enter into an agreement for the use and/or occupancy of a portion of the Rents; any Property with any Person, so long as in each instance of sublease or use and/or occupancy (X) such Person is not an Affiliate of Borrower or either Parent Company, and (viiY) either (i) the portion of such Property to Borrower’s best knowledge, except as disclosed on the Rent Roll be subleased or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, used and/or occupied comprises no Rents have been paid more than one twenty-five (125%) month in advance percent of the due dates thereof. For purposes square footage of such Property or (ii) the amount of rent to be received by Tenant or Borrower under such sublease or agreement of use and/or occupancy is no more than twenty-five (25%) percent of the preceding sentence, monthly rent paid by Tenant under the term “Lease” shall exclude subleasesapplicable Lease at such Property.
Appears in 1 contract
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person No person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant relating thereto, and true and complete copies of all Leases (and, to the Ground Leaseextent that Borrower has knowledge thereof, subleases) executed and delivered on or before the Closing Date have been delivered to Lender. As of Except as disclosed in the Tenant estoppel letters delivered to Lender prior to the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is are in full force and effect, and are valid and enforceable in all material respects, subject in each case to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; (vii) to Borrower’s best knowledgeits Actual Knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant there are no material defaults under any Lease is in default under any of the material termsor sublease by either party thereto (other than rent delinquencies specified on Schedule 4 attached hereto); (iii) to its Actual Knowledge, covenants or provisions of the Leasethere are no conditions that, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for with the passage of time or the giving of notice notice, or both, would constitute an event of a material default under any Lease; and (viiv) no Rent under any Lease or Operating Agreement has been paid for more than one month in advance, except for Security Deposits, which at the Closing Date have been deposited with the Lender in accordance with the provisions of Section 5.1(r) relating to BorrowerSecurity Deposits received from and after the date hereof. Each Lease is subordinate to the Loan Documents or, if any Lease is not so subordinate, the Tenant under such Lease is required to execute and deliver a nondisturbance, subordination and attornment agreement effecting the subordination of such Lease to the Loan Documents. As to all present Leases and (upon execution thereof) all future Leases relating to the Property, Borrower is, or will be, the sole owner of the lessor’s best knowledgeinterest. No Tenant has the right to terminate a Lease (other than in connection with a casualty or condemnation) except as set forth in Schedule 5 and no Lease contains an option to purchase, right of first refusal or similar provisions for the purchase of the Property. No Tenant or former tenant has any present or future right to participate in the proceeds of the Property. There are no obligations for Tenant Improvements or inducements requiring the expenditure of money by Borrower as lessor under any Lease that have not been satisfied in full prior to the date hereof, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesSchedule 6.
Appears in 1 contract
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together The Mortgagor shall, at its own cost and expense, perform, comply with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions discharge all of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As obligations of the date hereof (i) Borrower is Mortgagor under all leases and agreements for the owner and holder use of the landlord’s interest under Mortgaged Property and use reasonable efforts to enforce or secure the performance of each Lease; (ii) there are no prior assignments obligation and undertaking of the landlord’s interest by Borrower (respective tenants under such leases and to Borrower’s knowledge shall appear in and defend, at its own cost and expense, any prior landlord) in any Lease action or any portion proceeding arising out of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection manner connected with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, Xxxxxxxxx's interest in any tenant under any Lease is in default under any leases of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of Mortgaged Property. The Mortgagor shall permit no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment surrender nor assignment of any portion tenant's interest under said leases unless the right to assign or surrender is expressly reserved under the lease, nor receive any installment of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except rent for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of its due date unless otherwise required pursuant to the due dates thereof. For purposes terms of the preceding sentenceapplicable lease, nor execute any mortgage or create or permit a lien which may be or become superior to any such leases, nor permit a subordination of any lease to such mortgage or lien. The Mortgagor shall not materially modify or amend the telins of any such leases, nor borrow against or pledge the rentals from such leases, nor exercise or waive any default of the tenant thereunder without the prior consent of the Mortgagee. The Mortgagor agrees to obtain the Mortgagee's prior written approval before entering into any lease with a term of five (5) years or more. Should the Mortgagor fail to perform, comply with or discharge any material obligations of the Mortgagor under any lease or should the Mortgagee become aware of or be notified by any tenant under any lease of a material failure on the part of the Mortgagor to so perform, comply with or discharge its obligations under said lease, the term “Lease” Mortgagee may, but shall exclude subleasesnot be obligated to, and without further demand upon or notice to the Mortgagor, and without waiving or releasing the Mortgagor from any obligation in this Mortgage GP:3764046 v1 9 contained, remedy such failure, and the Mortgagor agrees to repay upon demand all sums incurred by the Mortgagee in remedying any such failure together with interest at the Default Rate. All such sums, together with interest as aforesaid, shall become so much additional Secured Indebtedness, but no such advance shall be deemed to relieve the Mortgagor from any Event of Default hereunder. 1.22.
Appears in 1 contract
Samples: www.sec.gov
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described The tenant listed in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in is the only tenant occupying the Property through Seller, and to Seller's knowledge there are no other leases, tenancies or other arrangements under which any other party has a right to occupy the same except under and pursuant to the provisions all or any part of the Leases (Property. A copy of all Leases, and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner all amendments thereto and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases guaranties thereof, if any, have been delivered furnished by Borrower Seller to Lender or made available to Lender andBuyer and the copies so provided are true, to Borrower’s knowledge, the correct and complete. The Leases have not been further amended, modified or amended, terminated except for any amendments delivered to Buyer pursuant to the preceding sentence. No tenant under any of the Leases has any renewal or expansion options except as disclosed to Lender set forth in writing on the Leases and no tenant has any purchase options, rights of first offer or prior first refusal or any other options applicable to the date hereof; (iv) Property or any part thereof. No tenant possess any credit, offset or claim against its obligation to Borrowerpay rent, by reason of prepayment or otherwise, subject, however, to each tenant’s best knowledge, each Lease is rights with respect to its security deposit. The Leases are presently in full force and effect; (v) to Borrower’s best knowledgeeffect and there are no defaults, except as disclosed on the Rent Roll or in nor have any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event events occurred which, but for with the passage of time or the giving of notice notice, or both, would constitute an event of default under any Leasedefaults, by Seller thereunder; (vi) and, to BorrowerSeller’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets defaults, nor have any events occurred which, with the passage of time or defenses giving of notice, or both, would constitute defaults, by any tenant thereunder. Seller has not received any notice from any tenant asserting a claim, default or right to set-off rent by reason of the landlord’s failure to perform its obligations pursuant to the payment of Leases nor any portion of the Rents; and (vii) notice asserting a claim by any tenant to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereofa right to axxxx rent. For purposes of this Agreement and any document delivered at Closing, whenever the preceding sentencephrase "to Seller's knowledge," or the "knowledge" of any Seller or words of similar import are used, they shall be deemed to refer to facts within the term actual knowledge only of Lxxxxx “LeaseBxx” shall exclude subleasesBridge and no others, at the times indicated only, without duty of inquiry whatsoever. Buyer acknowledges that the individuals named above are named solely for the purpose of defining and narrowing the scope of Seller's knowledge and not for the purpose of imposing any liability on or creating any duties running from such individuals to Buyer. Buyer covenants that it will bring no action of any kind against such individuals, any shareholder, manager, officer partner or member of Seller, as applicable, or related to or arising out of these representations and warranties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Owens Mortgage Investment Fund a Calif LTD Partnership)
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached With respect to such rent roll (collectivelyeach Property, the “Rent Roll”) is trueLeases, complete are the only leases, licenses, tenancies, possession agreements and correct and the occupancy agreements affecting that Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is in which that Entity holds the owner lessor's, licensor's or grantor's interest thereunder and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of other leases, licenses, tenancies, possession agreements or occupancy agreements affecting the landlord’s interest Property (other than subleases, licenses, tenancies or other possession or occupancy agreements which may have been entered into by Borrower (and to Borrower’s knowledge any prior landlord) the tenants, or their predecessors in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rentsinterest, under such Leases); (iii) a true and correct copies complete copy of the all such Leases have been delivered by Borrower to Lender or made available to Lender the Operating Partnership; such Leases, are in full force and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender indicated otherwise on Schedule 1.4, the Entities, as lessor under such Leases, has not received any notice that it is in writing on or prior default of any of its obligations under such Leases beyond any applicable grace period which has not been cured; fixed rent and additional rent are being billed to the date hereoftenants in accordance with the schedule set forth on Schedule 1.4; (iv) no tenant is entitled to Borrower’s best knowledge"free" rent, each rent concessions, rebates, rent abatements, set-offs, or offsets against rent except as set forth in the Lease is in full force with such tenant and effect; (v) no tenant claims a right to Borrower’s best knowledgeany of the foregoing, except as disclosed set forth on Schedule 1.4; except as set forth on Schedule 1.4, the Rent Roll or in Entities has received no written notice that any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, contests its pro rata shares of tax increases as required by its Lease or that any tenant contests its pr rata shares of tax increases as required by its Lease or that any tenant contests any rent, escalation or other charges billed to it; no assignment of the Entities' rights under any Lease is in default under any of effect on the material terms, covenants or provisions of the Lease, date hereof other than collateral assignments to secure mortgage indebtedness; and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in on Schedule 1.4, with respect to any Leases entered into by the LeasesEntities, no brokerage commissions will be due upon the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment failure of any portion tenant to exercise any cancellation right granted in its Lease or upon any extension or renewal of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their such Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleases.
Appears in 1 contract
Samples: Supplemental Representations and Warranties Agreement (Sl Green Realty Corp)
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectivelyThere are no leases, the “Rent Roll”) is true, complete and correct and license agreements or other occupancy agreements for the Property is not subject to any Leases binding upon the Purchaser or its successors other than the Leases described in on the Rent Roll and those additional Leases (if any) on Schedule 2 schedule of leases attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct as Exhibit B. The copies of the Leases have been delivered to Purchaser by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or behalf of Seller prior to the execution of this Agreement are true, accurate and complete in all material respects as of the date hereof; (iv) to Borrower’s best knowledge, each Lease is are in full force and effect; (v) effect and none of the Leases has been further modified, amended or extended. None of the Leases shall be further extended, modified or amended prior to BorrowerClosing without the Purchaser’s best knowledgeconsent, except as disclosed on the Rent Roll which shall not be unreasonably withheld, conditioned or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower delayed. Neither landlord nor, to BorrowerSeller’s knowledgeknowledge any of the tenants, any tenant under any Lease is in default under any the Leases, and there are no other obligations of the material terms, covenants or provisions of landlord pertaining to the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, Property except as expressly set forth in the Leases. To the knowledge of Seller, no controversy, claim, dispute or disagreement exists between the Tenant Estoppels parties to any of the Leases, and no event has occurred which, with the giving of notice or the passage of time, or both, would constitute a default under any of the Leases. The Leases are all in full force and effect. Neither the tenants under the Leases (the “Tenants”) nor any other person, firm or corporation has any right, option or agreement to purchase the Property, including, but not limited to, purchase options or rights of first refusal to purchase the Property or any portion thereof. The security deposits for the Leases are listed on Exhibit B and there are no security deposits or other deposits other than those described on Exhibit B. There are no brokerage, leasing or other commissions payable with respect to the Rent RollLeases as of the date hereof, and at Closing, there shall be no such commissions payable, whether with respect to the present terms thereunder or any renewals. Except for the funding of moving expenses offered to Xxxxxxx Development Corporation in connection with its First Amendment to Deed of Lease dated April, 2006 (the costs of such moving expenses are a Seller obligation that will be credited to Purchaser at Closing), there are no offsets unperformed requirements under the Leases for the Seller to perform or defenses to fund the payment performance of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll tenant build-out or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesimprovement work.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Columbia Equity Trust, Inc.)
Leases. To Borrower’s best knowledge With respect to the rent roll attached hereto Leases: (a) the Rent Roll dated as Schedule 3 together with of the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) Closing Date is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the identified on such Rent Roll and those additional Leases Roll; (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (ib) Borrower is the owner has delivered to Lender complete and holder accurate copies of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of all Leases and Rents; (iii) true and correct copies of no verbal or written agreements exist which terminate, modify or supplement the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amendedLeases, except as otherwise disclosed to Lender in writing on or prior to the date hereofand acknowledged by Lender; (ivc) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, effect and there are no offsets or defenses defaults thereunder by either party known to Borrower; (d) each Lease, by its terms, is subordinate to the payment of any portion lien of the RentsSecurity Instrument or the subject of a separate subordination non-disturbance and attornment agreement subordinating the Lease to the lien of the Security Instrument; (e) Borrower or Lessee is the sole owner of the entire lessor’s interest in the Leases and has not assigned, pledged or otherwise transferred the Rents reserved in the Leases (viiexcept to Lender); (f) all of the Leases are bona fide, arms-length agreements with tenants (except for Lessee under the Operating Lease) unrelated to Borrower’s best knowledge, except as disclosed on ; (g) none of the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid collected for more than one (1) month in advance (and for such purpose, a security deposit shall not be deemed rent collected in advance); (h) all security deposits reflected on the Rent Roll have been collected and are being held by Borrower Lessee or Property Manager in the full amount reported on the Rent Roll; (i) except as set forth on Exhibit L, all work to be performed by Borrower under each Lease has been performed as required and has been accepted unconditionally by the applicable tenant; (j) to the best of Borrower’s knowledge, no offsets or defenses exist in favor of any tenant to the payment of any portion of the Rents and Borrower has no monetary obligation to any tenant under any Lease other than the proper application or refund of any security deposits; (k) all payments due dates thereoffrom tenants under the Leases are current; (l) to Borrower’s knowledge no tenant under any Lease is in default thereunder, or is a debtor in any bankruptcy, reorganization, insolvency or similar proceeding, or has demonstrated, to Borrower’s knowledge, a history of payment problems which suggest financial difficulty; (m) no Lease contains an option to purchase, right of first refusal to purchase, or any other similar provision; and (n) no brokerage commissions, finders fees or similar payment obligations are due and unpaid by Borrower or any Affiliate of Borrower regarding any Lease. For purposes No portion of the preceding sentence, the term “Lease” shall exclude subleasesProperty is licensed to or occupied by any Affiliate of Borrower other than Lessee.
Appears in 1 contract
Leases. To Borrower’s best knowledge During the rent roll attached hereto time period commencing upon the Effective Date and terminating upon the Closing or the earlier termination of this Agreement, subject to the provisions of Section 8.3 hereof, Seller shall administer and timely perform all of its obligations under the Leases and shall not commit any default under the Leases. In the event of a tenant default under a Lease, Seller shall use commercially reasonable efforts to enforce the terms and conditions of such Lease. Furthermore, during the time period commencing upon the Effective Date and terminating upon the date that is three (3) Business Days prior to the expiration of the Investigation Period, Seller shall have the right to renew, extend, amend or modify any of the Leases, enter into any new Commercial Lease or enter into any leasing commission arrangement in connection with such new Commercial Lease (each, a “Proposed New Lease”), in the ordinary course of business of Seller and without the consent of Buyer. Notwithstanding the foregoing, in the event Seller enters into a Proposed New Lease on or before the date that is three (3) Business Days prior to expiration of the Investigation Period, Seller shall provide Buyer with a copy of such Proposed New Lease within three (3) Business Days after entering into such Proposed New Lease, but in no event later than three (3) Business Days prior to the expiration of the Investigation Period, and Buyer shall have until the expiration of the Investigation Period to review and approve or disapprove any such Proposed New Lease as Schedule 3 together if the same had been provided to Buyer pursuant to Section 4.1(a) hereof. In connection with the schedules foregoing, in the event Buyer delivers Buyer’s Election Not to Terminate pursuant to Section 4.3 hereof, Buyer shall be deemed to have approved such Proposed New Lease. During the time period commencing upon the date that is three (3) Business Days prior to the expiration of the Investigation Period and terminating on the exhibits attached Closing or the earlier termination of this Agreement, as applicable, Seller shall not renew, extend, amend or modify any of the Commercial Leases or enter into any Proposed New Lease without the prior written consent of Buyer in each instance, which consent shall be given or withheld in Buyer’s sole discretion. In the event Seller desires to enter into a Proposed New Lease after the date that is three (3) Business Days prior to the expiration of the Investigation Period, Seller shall deliver to Buyer a copy of the Proposed New Lease for Buyer’s review in accordance with the provisions of this Section 5.1(c). Buyer shall have a period of five (5) Business Days following the receipt of such rent roll Proposed New Lease for Buyer to review and approve or disapprove of the same. Prior to the expiration of such five (collectively5) Business Day period, Buyer shall deliver written notice to Seller advising Seller of Buyer’s approval or disapproval of such Proposed New Lease. In the “Rent Roll”event Buyer fails to timely deliver to Seller such written notice of approval or disapproval within such five (5) is trueBusiness Day period, complete then Buyer shall be deemed to have disapproved such Proposed New Lease. During the time period prior to Closing, Seller shall have the right, without Buyer’s prior consent, to renew, extend, amend or modify any of the Residential Leases and correct and the Property is not enter into any new Residential Lease, subject to any and in accordance with the Residential Leasing Parameters. All Proposed New Leases other than the Leases described in the Rent Roll and those additional Leases which are approved (if anyor deemed approved) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and by Buyer pursuant to the provisions of the this Section 5.1(c) and all Residential Leases (and any existing subleases thereunder) or entered into by Seller pursuant to the Ground Lease. As provisions of the date hereof (ithis Section 5.1(c) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding subsequently entered into and have priority over the Assignment of Leases executed by Seller, shall be deemed to constitute separately a “New Lease” and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is New Leases” for purposes of this Agreement. All references in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses this Agreement to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their “Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesmean and include any New Leases entered into by Seller and approved by Buyer pursuant to this Section 5.1(c).
Appears in 1 contract
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”i) is true, complete and correct and the The Property is not subject to any Leases other than the Leases described Specified Tenant Lease, and the demised premises under the Specified Tenant Lease constitute the entirety of the Land and the Improvements. The initial term of the Specified Tenant Lease does not expire prior to the date that is fifteen (15) years following the First Amendment Date, subject to the rights of Specified Tenant under Section 13 of the Specified Tenant Lease. Specified Tenant is required to commence payment of base rental payments under the Specified Tenant Lease on the Commencement Date (as defined in the Specified Tenant Lease), which is the date of mutual execution and delivery of the Specified Tenant Lease by Mortgage Borrower and Specified Tenant (except during the Rent Roll and those additional Leases Abatement Period (if anyas defined in the Specified Tenant Lease) on Schedule 2 attached hereto and any existing subleases thereunderas expressly set forth in Section 4(D) thereof). To Borrower(ii) With respect to each Lease (including, without limitation, the Specified Tenant Lease), (A) Mortgage Borrower is the owner of landlord’s best knowledge interest in such Lease, (B) other than with respect to Permitted Encumbrances, no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases such Lease, (and any existing subleases thereunderC) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each such Lease is in full force and effect; , the tenants thereunder have accepted possession of and are in occupancy of all of their respective demised premises, are open for business, and are paying (v) except, with respect to Borrower’s best knowledgeSpecified Tenant only, except as disclosed on during the Rent Roll or Abatement Period (as defined in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Specified Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in Section 4(D) thereof) full, unabated rent, and no tenant under such Lease has given Borrower or Mortgage Borrower any notice of its intent to terminate such Lease or vacate the Leasesleased premises (and, except with respect to the Tenant Estoppels termination of the Master Lease as described in Section 3 of the First Amendment, neither Borrower nor Mortgage Borrower has any knowledge that any such tenant intends to so terminate or on vacate), (D) neither Borrower nor Mortgage Borrower has received written notice from any tenant under such Lease claiming that Mortgage Borrower (or any prior landlord) is in default thereunder, and to the Rent Roll, knowledge of Borrower and Mortgage Borrower there are no offsets or defenses to the payment of defaults under such Lease by any portion of the Rents; and party thereto, (viiE) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have Revenue has been paid more than one (1) month in advance of the its due dates thereof. For purposes of the preceding sentencedate, the term “Lease” shall exclude subleases.(F) all work to be performed by Mortgage Borrower (or any prior
Appears in 1 contract
Leases. To Borrower’s best knowledge Prior to the rent roll attached hereto as Schedule 3 together with Approval Date, Sellers shall not terminate or accept the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and surrender of any existing subleases thereunderLeases without the prior consent of Purchaser unless Sellers enter into a new Lease for the space demised under such terminated Lease which new Lease provides for an annual base rent in excess of the annual base rent payable under the terminated Lease. To Borrower’s best knowledge no Person has In the event that Sellers terminate or accept the surrender of any possessory interest in the Property or right to occupy the same except under and Lease without Purchaser's prior PURCHASE AND SALE AGREEMENT MPR PROPERTY written consent pursuant to the provisions foregoing, Sellers shall deliver copies thereof to Purchaser within five (5) business days after execution thereof. Notwithstanding the foregoing, any termination of the Leases Payless Shoes Lease at Plaza del Norte shall be subject to Section 3.6.5. Prior to the Approval Date, Sellers shall have the right to execute new leases in accordance with Sellers' past practices without the prior consent of Purchaser; provided that (a) the base or minimum rent payable for the space demised under such new Lease is not less than eighty percent (80%) of the base or minimum rent set forth on Exhibit 5.4 for such space, (b) the tenant thereunder is Credit-Worthy, (c) such Lease will not cause the violation of any exclusive use rights granted under, or prohibited use clause in, any other Lease at the Property, (d) the term (including renewal options) thereof shall not exceed ten (10) years in the case of any outparcel space Lease and five (5) years in the case of any other Lease, unless (i) in the case of any outparcel space Lease, the base rent as of the tenth (10th) anniversary of the rent commencement date (and as of each tenth (10th) anniversary thereafter, if applicable) is at least twenty percent (20%) more than the base rent payable at the beginning of the immediately preceding ten (10) year period or (ii) in the case of any other Lease, the base rent as of the fifth (5th) anniversary of the rent commencement date (and as of each fifth (5th)anniversary thereafter, if applicable) is at least twenty percent (20%) more than the base rent payable at the beginning of the immediately preceding five (5) year period; (e) such new Lease provides that the tenant thereunder will pay its proportionate share of common area maintenance charges, real estate taxes and insurance charges for the Project in which such tenant is leasing space, (f) such new Lease does not require the landlord thereunder to perform any tenant improvements (other than completion of the building in which the leased premises are located) or provide any tenant improvement allowance, (g) to the extent that a Seller is required to obtain the consent of the Lender or Servicer to such new Lease under the Loan Documents, such consent has been obtained, and (h) Sellers shall deliver copies thereof to Purchaser within five (5) business days after execution thereof. Prior to the Approval Date, Sellers also have the right to renew or amend any existing subleases thereunderLeases in accordance with Sellers' past practices without the prior consent of Purchaser; provided that (w) any such amendment does not reduce the term of such Lease, (x) the base or minimum rent payable thereunder is not less than the base or minimum rent payable by such tenant prior to such renewal or amendment (unless such tenant has the right to renew its Lease pursuant to the Ground express terms of its Lease. As ), (y) the renewal term thereof shall not exceed ten (10) years in the case of any outparcel space and five (5) years in the case of any other Lease (unless such Lease provides for a longer renewal term as of the date hereof (i) Borrower is hereof), unless the owner and holder base rent payable as of the landlord’s interest under commencement of each Lease; renewal term in excess of five (ii5) there are no prior assignments or ten (10) years increases by not less than twenty percent (20%) over the base rent payable as of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies commencement of the Leases have been delivered by Borrower immediately preceding term; and (z) Sellers shall deliver copies thereof to Lender or made available to Lender andPurchaser within five (5) business days after execution thereof. Except as specifically provided in this Section 5.4, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; Approval Date, Sellers shall not execute any new Lease or renew, amend or terminate any existing Leases (ivunless a Seller is required to renew, amend or terminate an existing Lease pursuant to the terms thereof) without the prior written consent of Purchaser, not to Borrower’s best knowledgebe unreasonably withheld or delayed. From and after the Approval Date, each Sellers shall not execute any new Lease or renew, amend or terminate any existing Leases (unless a Seller is in full force and effect; (vrequired to renew, amend or terminate an existing Lease pursuant to the terms thereof) without the prior written consent of Purchaser, not to Borrower’s best knowledge, except as disclosed on be unreasonably withheld or delayed. In the Rent Roll or in any tenant estoppels delivered event that Purchaser's consent is required to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material termsforegoing, covenants or provisions Purchaser will be deemed to have approved any such action if Purchaser fails to respond to any request for consent within five (5) business days after receipt of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but such request for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesconsent.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Developers Diversified Realty Corp)
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached Borrower has delivered to such rent roll (collectively, the “Rent Roll”) is Agent true, complete and correct and complete copies of all Major Leases and, as of the Property is not subject Closing Date, all Leases in effect as of the Closing Date. As of the Closing Date, there are no Leases with respect to any Leases the Premises other than the Leases described delivered to Agent in connection with the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions closing of the Leases Loan. Except as Borrower has otherwise notified Agent in writing: (and any existing subleases thereundera) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Major Lease is in full force and effect; (vb) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease the Major Leases have been paid and no portion of any Rent has been paid for any period more than thirty (30) days in full andadvance; (c) to Borrower’s knowledge there is no claim or basis for a claim by the Lessee under any Major Lease for an 49 adjustment to its fixed rent; (d) no default in any material respect by Borrower exists under any Major Lease, except and no event exists which, with the giving of notice or passage of any cure period, or both, would constitute a default in any material respect by Borrower under any Major Lease; (e) to Borrower’s knowledge, there are no offsets, claims or defenses to the enforcement by Borrower of any Major Lease presently outstanding; (f) Borrower has not received a notice of default under any Major Lease which remains outstanding; (g) to Borrower’s knowledge, no default by any Lessee in any material respect exists under any Major Lease, and no grounds for estimated payments termination by any Lessee exists, and no event exists which, with the giving of operating expenses notice or passage of any cure period, or both, would constitute a default in any material respect by any Lessee under any Major Lease or give rise to any right of any Lessee to terminate any Lease; (h) each Lease represents the entire agreement between Borrower and taxes made the Lessee thereunder with respect to the leasing of space at the Premises, and there are no other agreements or representations, written or oral, between Borrower and such Lessee with respect to thereto; (i) Borrower has obtained all consents necessary to assign the Major Leases to Agent pursuant to the Loan Documents; (j) no Lease contains any option to purchase or right of first refusal to purchase the Mortgaged Property or any part thereof; (k) all Security Deposits under the Leases are held pursuant to Section 2.15 hereof, and Borrower and Property Manager, if any, are in compliance with all Legal Requirements with respect to all Security Deposits; (l) no use restriction contained in any Major Lease, Permitted Encumbrance or Premises Document is violated by tenants any use permitted under any other Major Lease, any Permitted Encumbrance or any Premises Document; and (m) all Major Leases have been entered into in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of Permitted Encumbrances and the preceding sentence, the term “Lease” shall exclude subleasesPremises Documents.
Appears in 1 contract
Leases. To Borrower’s best knowledge The Property is not subject to any Material Leases other than the Affiliate Leases and the Leases described in the certified rent roll attached hereto as Schedule 3 together delivered in connection with the schedules and origination of the exhibits attached to Loan. To the Best of Mezzanine Borrower's Knowledge (which shall include consultation with Manager), such certified rent roll (collectively, the “Rent Roll”) is true, complete and correct and in all material respects as of the Property is not subject to any Leases other than the Leases date set forth therein. Except as described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge Ground Leases, no Person has any possessory interest in the Property or right to occupy the same (other than typical short-term occupancy rights of hotel guests which are not the subject of a written agreement) except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to Leases. To the Ground Lease. As Best of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Mezzanine Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge's Knowledge, the current Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is are in full force and effect; effect and there are no material defaults thereunder by either party (v) to Borrower’s best knowledge, except other than as expressly disclosed on the Rent Roll or in any tenant estoppels certified rent roll delivered to Mezzanine Lender or the Tenant estoppel certificates delivered to Mezzanine Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any closing of the material termsLoan) and there are no conditions that, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for with the passage of time or the giving of notice notice, or both, would constitute an event material defaults thereunder. To the Best of default Mezzanine Borrower's Knowledge, all construction and other obligations of a material nature to be performed by the Mortgage Borrower under the Leases have been satisfied and) any required payments by Mortgage Borrower to the Tenants under the Leases for tenant improvements have been made to the extent required to be satisfied. To the Best of Mezzanine Borrower's Knowledge, no Tenant under any Lease; (vi) Lease is entitled to Borrower’s best knowledgeany offsets, except as expressly set forth in abatements, deductions against the Rent payable under any Lease from and after the date hereof. To the BEST OF MEZZANINE BORROWER'S KNOWLEDGE, the Rent has been paid current under the Leases, . To the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment Best of any portion of the Rents; and (vii) to Mezzanine Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases's Knowledge, no Rents have Rent has been paid more than one (1) month in advance of its due date, except as disclosed in the due dates thereof. For purposes Tenant estoppel certificates delivered to Mezzanine Lender in connection with the closing of the preceding sentenceLoan. There has been no prior sale, transfer or assignment, hypothecation or pledge by Mortgage Borrower of Mortgage Borrower's interest in any Lease or of the term “Lease” shall exclude subleasesRents received therein, which will be outstanding following the funding of the Loan, other than those being assigned to Mortgage Lender concurrently herewith. No Tenant or other Person under any Lease or other agreement has any right or option pursuant to such Lease or other agreement or otherwise to purchase all or any part of the Property.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (CNL Hotels & Resorts, Inc.)
Leases. To Borrower’s best knowledge With respect to the rent roll attached hereto Leases: (a) the Rent Roll dated as Schedule 3 together with of the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) Closing Date is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the identified on such Rent Roll and those additional Leases Roll; (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (ib) Borrower is the owner has delivered to Lender complete and holder accurate copies of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of all Leases and Rents; (iii) true and correct copies of no verbal or written agreements exist which terminate, modify or supplement the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amendedLeases, except as otherwise disclosed to Lender in writing on or prior and acknowledged by Lender; (c) each Lease, by its terms, is subordinate to the date hereoflien of the Security Instrument or the subject of a separate subordination agreement subordinating the Lease to the lien of the Security Instrument; (ivd) Borrower is the sole owner of the entire lessor's interest in the Leases and has not assigned, pledged or otherwise transferred the Rents reserved in the Leases (except to Lender); (e) all of the Leases are bona fide, arms-length agreements with tenants unrelated to Borrower’s best knowledge, each Lease is in full force and effect; (vf) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any none of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid collected for more than one (1) month in advance of the date when due dates thereof. For purposes under the Lease (and for such purpose, a security deposit shall not be deemed rent collected in advance and further provided that rent under the Ply Gem Lease may be collected no more than three (3) months in advance); (g) all security deposits reflected on the Rent Roll have been collected and are being held by Borrower in the full amount reported on the Rent Roll; (h) all work to be performed by Borrower under each Lease has been performed as required and has been accepted unconditionally by the applicable tenant; (i) no offsets or defenses exist in favor of any tenant to the payment of any portion of the preceding sentenceRents and Borrower has no monetary obligation to any tenant under any Lease; (j) Borrower has not received notice from any tenant challenging the validity or enforceability of any Lease; (k) all payments due from tenants under the Leases are current; (l) no tenant under any Lease is in default thereunder, or is a debtor in any bankruptcy, reorganization, insolvency or similar proceeding, or, to the term “Lease” best knowledge of Borrower, has demonstrated a history of payment problems which suggest financial difficulty; (m) no Lease contains an option to purchase, right of first refusal to purchase, or any other similar provision (provided that the provision in the Ply Gem Lease regarding the Termination Notice for casualty or condemnation, shall exclude subleasesnot be deemed an option to purchase); and (n) no brokerage commissions, finders fees or similar payment obligations are due and unpaid by Borrower or any Affiliate of Borrower regarding any Lease which have not been disclosed in writing to Lender and for which adequate amounts have not been set aside in the TI/LC Reserve Account.
Appears in 1 contract
Samples: Loan Agreement (Corporate Property Associates 16 Global Inc)
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules (a) All Leases and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any all renewals of Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of executed after the date hereof shall (i) Borrower is the owner and holder of the landlord’s interest under each Lease; provide for economic terms, including rental rates, comparable to existing local market rates for similar properties, (ii) there are no prior assignments be on commercially reasonable terms, (iii) have a term of not less than three (3) years (unless Lender approves in writing a shorter term) and not more than ten (10) years, including extensions and renewals (unless Lender approves in writing a longer term), (iv) provide that such Lease is subordinate to the landlord’s interest by Borrower (Mortgage and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of that the Leases have been delivered by Borrower Tenant thereunder will attorn to Lender or made available to Lender andand any purchaser at a foreclosure sale, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) be to Tenants that are creditworthy, (vi) be written substantially in accordance with the standard form of Lease which shall have been approved by Lender (subject to any commercially reasonable changes made in the course of negotiations with the applicable Tenant), (vii) not be to an Affiliate of Borrower, any Guarantor or Manager, (viii) not contain any option to purchase, any right of first refusal to purchase, any right to terminate (except in the event of the destruction or condemnation of substantially all of the Property), any requirement for a non-disturbance or recognition agreement, or any other terms which would materially adversely affect Lender’s best knowledgerights under the Loan Documents. Further, except all Major Leases and all renewals, amendments and modifications thereof and waivers thereunder executed after the date hereof shall be subject to Lender’s prior approval, which approval shall not, so long as disclosed on the Rent Roll no Event of Default is continuing and so long as no Sweep Event has occurred, be unreasonably withheld or in delayed. Lender shall execute and deliver its standard form of subordination, non-disturbance and attornment agreement to Tenants under any tenant estoppels delivered future Major Lease approved by Lender promptly upon request, with such commercially reasonable changes as may be requested by such Tenants, and which are reasonably acceptable to Lender Lender. Borrower shall pay Lender’s costs and expenses in connection with the Loan (collectivelyany such subordination, the “Tenant Estoppels”)non-disturbance and attornment agreement, neither Borrower norincluding, to Borrower’s knowledgewithout limitation, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; reasonable legal fees and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesexpenses.
Appears in 1 contract
Leases. To Borrower represents and warrants to Administrative Agent and the Lenders with respect to the Leases for residential occupancy, to Borrower’s best knowledge Knowledge, (i) the rent roll attached hereto as Schedule 3 together with or Census Report for the schedules Project delivered to Administrative Agent is true and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Leasecorrect; (ii) there such Leases are no prior assignments of the landlord’s interest by Borrower (valid and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases full force and Rentseffect; and (iii) true and correct copies the interests of the landlord and the rents under such Leases have not been delivered by assigned or pledged. Borrower represents and warrants to Lender or made available Administrative Agent and Lenders with respect to Lender andthe Commercial Leases, if any, to Borrower’s knowledgeKnowledge, (i) the Leases have not been further modified or amendedrent roll with respect to such Commercial Leases, except as disclosed if any, delivered to Lender in writing on or prior to the date hereofAdministrative Agent is true and correct; (ivii) to Borrower’s best knowledge, each Lease is such Commercial Leases are in full force and effect; (iii) the Commercial Leases (including amendments) are in writing, and there are no oral agreements with respect thereto; (iv) the copies of the Leases delivered to Administrative Agent are true and complete; (v) to Borrower’s best knowledge, except as disclosed on neither the Rent Roll or in landlord nor any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any LeaseCommercial Leases; (vi) Borrower has no knowledge of any notice of termination or default with respect to Borrower’s best knowledge, except as expressly set forth in any Commercial Lease; (vii) Borrower has not assigned or pledged any of the Commercial Leases, the rents or any interests therein except to Administrative Agent and the Lender; (viii) no Tenant Estoppels or on the Rent Roll, there are no offsets other party has an option to purchase all or defenses to the payment of any portion of Project; (ix) no Tenant has the Rentsright to terminate its Commercial Lease prior to expiration of the stated term of such Commercial Lease; (x) no Tenant has prepaid more than one month’s rent in advance (except for bona fide Security Deposits not in excess of an amount equal to two months’ rent); and (viixi) all existing Commercial Leases are subordinate to Borrower’s best knowledge, except as disclosed on the Rent Roll Mortgage either pursuant to their terms or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesa recorded subordination agreement.
Appears in 1 contract
Leases. To Borrower’s best knowledge The Credit Parties hereby agree that all leases entered into between the rent roll attached hereto as Schedule 3 together Credit Party and any lessee of real property owned by the Credit Party will (a) have a minimum initial lease term of five years (provided any leases entered into with a governmental entity may have a lease term of less than five years and be subject to other appropriate limitations satisfactory to the schedules Required Lenders, the Required Tranche C Term Lenders and the exhibits attached to such rent roll Required New Term Loan Lenders) and (collectively, b) require that the “Rent Roll”) is true, complete lessee remain solely responsible for all operations and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant liabilities with respect to the provisions applicable property; provided, however, with respect to all leases having annual rent payments (whether at the inception of the Leases (and any existing subleases thereundersuch lease or otherwise) or pursuant in excess of $1,500,000, such leases shall be provided to the Ground LeaseAdministrative Agent in accordance with Section 7.1(l) and be satisfactory in form and substance to the Administrative Agent. As of the date hereof The Credit Parties also agree that, at all times, (i) Borrower is the owner and holder at least eighty percent (80%) of all lease revenues of the landlord’s interest under each Lease; Credit Parties shall be derived from leases with Management Opco and with lessees other than Management Opco having a senior unsecured non-credit enhanced long term debt rating of at least BBB+ (iior higher) there from S&P or Baa1 (or higher) from Moody's (or if such ratings are no prior assignments of the landlord’s interest by Borrower (unavailable from S&P and to Borrower’s knowledge any prior landlord) in any Lease Moody's, an xxxxxxxent rating from either Fitch or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”Duff & Phelps), neither Borrower nor(ix) xx xeast ninety percent (90%) of all lease revenues of xxx Xxedit Parties shall be derived from leases with Management Opco and with lessees other than Management Opco having a senior unsecured non-credit enhanced long term debt rating of at least BBB- (or higher) from S&P and Baa3 (or higher) from Moody's (or if such ratings are unavailable from S&P and Moody's, to Borrower’s knowledgean xxxxxxxent rating from either Fitch or Duff & Phelps), any tenant under any Lease is in default under any anx (xxx) at least ninety percent (90%) of all lease revenuex xx xhe Credit Parties are derived from triple-net leases that are noncancelable by the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleaseslessee.
Appears in 1 contract
Leases. To Borrower’s best knowledge No unrecorded written leases or oral leases affect the rent roll attached hereto Property, excluding, however, (a) rights of residents of the facility on the land pursuant to unrecorded residency agreements, if any, and (b) that certain dated , by and between, inter alia, Seller, as Schedule 3 together with the schedules landlord, and the exhibits attached , as tenant (as amended to such rent roll (collectivelydate, the “Rent RollFacility Lease”) ). The Facility Lease is true, complete and correct and being terminated with respect to the Property concurrently with the sale of the Property to Purchaser. As an inducement to the Title Company to insure over any defects, liens, encumbrances, adverse claims or other matters created, first appearing in the public records or attaching during the period between , 201 and date on which the deed conveying the Property from Seller to Purchaser is recorded in the official records of , (the “Recording Date”), and of which the undersigned (or any party claiming under the undersigned) had knowledge (“New Title Matters”), the undersigned hereby agrees to: (1) promptly remove, bond over or otherwise dispose of any such New Title Matters, and (2) hold harmless and indemnify the Title Company for any loss, cost, expense, claim or damage, including without limitation reasonable attorneys’ fees, arising from the undersigned’s failure to so remove, bond over or otherwise dispose of any such New Title Matters. The undersigned’s obligations under the preceding sentence shall expire thirty (30) days after the Recording Date unless the Title Company, on or before the expiration of such thirty (30) day period, notifies the undersigned in writing of any New Title Matters. Additionally, the undersigned shall not incur any liabilities or obligations hereunder with respect to any New Title Matters arising after the earlier of (i) fifteen (15) days from the date hereof and (ii) the Recording Date. The undersigned authorized signatory executing this declaration on behalf of Seller is not subject executing this declaration individually, but solely in his or her capacity as an authorized signatory of Seller. Exhibit C EXECUTED this day of , 201 . [ ], a [ ] By: Name: Title: Exhibit C ATTACHMENT 3 Form of Deed SPECIAL WARRANTY DEED FOR VALUE RECEIVED, the receipt and sufficiency of which are hereby acknowledged, , a (“Grantor”), hereby grants to any Leases other than the Leases , a (“Grantee”), all of that certain real property more particularly described in the Rent Roll and those additional Leases (if any) on Schedule 2 1 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases incorporated herein by this reference (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant EstoppelsProperty”), neither Borrower norsubject to (a) all non-delinquent real property taxes, (b) all non-delinquent special assessments, if any, and (c) all other liens, leases, easements, encumbrances, covenants, conditions, restrictions and other matters of record. Grantor does hereby covenant and agree to and with Grantee that GRANTOR WILL WARRANT AND DEFEND the Property against all persons lawfully claiming, or to claim the same, by, through or under Grantor and none other, subject to the above matters. Except as aforesaid, Grantor makes no other warranties of title relative to the Property. Dated: , 20 [ ], a [ ] By: Name: Title: STATE OF ILLINOIS ) ) ss. COUNTY OF XXXX ) I certify that I know or have satisfactory evidence that the person appearing before me and making this acknowledgment is the person whose true signature appears on this document. On this day of , 20 , before me personally appeared , to Borrowerme known to be the of [ ], the [ ] that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said limited liability company, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute said instrument. WITNESS my hand and official seal hereto affixed the date and year first above written. Notary Public in and for the State of Residing at My commission expires: Type or Print Notary Name Exhibit C ATTACHMENT 4 Form of Operational Transfer Agreement for an Operating Facility FORM OF OPERATIONS TRANSFER AGREEMENT By and Between KINDRED , , [New Operator] KINDRED HEALTHCARE OPERATING, INC. (joining in this Agreement solely for purposes of Section 18.9 herein) and , [New Operator’s knowledgeGuarantor] (joining in this Agreement solely for purposes of Section 18.10 herein) Dated , any tenant under any Lease is in default under any 201 TABLE OF CONTENTS Page ARTICLE I DEFINITIONS 3 1.1. Definitions 3 ARTICLE II SALE AND PURCHASE OF ASSETS 6 2.1. Agreement to Sell and Purchase 6 ARTICLE III PURCHASE PRICE; PRORATIONS 7 3.1. Purchase Price; Prorations 7 3.2. Taxes; Fees 7 3.3. Prorations 7 ARTICLE IV ASSETS AND EXCLUDED ASSETS 8 4.1. Assets 8 4.2. Excluded Assets 10 ARTICLE V ASSUMED OBLIGATIONS 11 5.1. Assumed Kindred Contracts 11 ARTICLE VI CLOSING 12 6.1. Closing 12 ARTICLE VII MEDICARE PROVIDER AGREEMENT 12 7.1. Kindred’s Medicare Provider Agreement 12 7.2 Kindred’s Medicaid Provider Agreement 12 ARTICLE VIII CHANGE OF OWNERSHIP OF THE FACILITY 13 8.1. Licensure Approvals 13 8.2. Cost Reports 13 ARTICLE IX TRANSFER OF RESIDENT TRUST FUNDS 15 9.1. Resident Trust Funds 15 ARTICLE X EMPLOYEES 16 10.1. Hired Employees 16 10.2. Employees and Benefits 17 ARTICLE XI ACCOUNTS RECEIVABLE 17 11.1. Accounts Receivable 17 11.2. Receipts by New Operator 17 11.3. Receipts by Kindred 18 11.4. Other Receipts 18 11.5. Accounting for Accounts Receivable 19 ARTICLE XII REPRESENTATIONS AND WARRANTIES 20 12.1. Kindred’s Representations 20 12.2. New Operator’s Representations 22 ARTICLE XIII INTERIM OPERATIONS AND UNDERTAKINGS 24 13.1. Conduct of Business Pending Closing 24 13.2. Prohibited Actions of Kindred Pending Closing 24 13.3. Access 25 13.4. Information Systems, Records, Etc. 25 13.5 Other Undertakings 26 13.6 Notice by Kindred of Certain Events 26 ARTICLE XIV CONDITIONS PRECEDENT 26 14.1. Conditions Precedent to New Operator’s Obligations 26 14.2. Conditions Precedent to Kindred’s Obligations 27 14.3. Waiver of Conditions Precedent 27 ARTICLE XV DELIVERIES AT CLOSING 27 15.1. Kindred’s Deliveries 27 15.2. New Operator’s Deliveries 28 ARTICLE XVI TERMINATION 28 16.1. Termination of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any LeaseAgreement 28 ARTICLE XVII FURTHER ASSURANCES; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses COVENANTS 28 17.1. Further Assurances 28 17.2. Covenants 29 17.3 Kindred Non-Solicitation 29 17.4 New Operator Non-Solicitation 29 17.5 Access to the payment Records 29 17.6 Final Reports and Actions; Insurance 30 ARTICLE XVIII INDEMNIFICATION 30 18.1. Indemnification by Kindred 30 18.2. Indemnification by New Operator 31 18.3. Period of any portion Indemnity 31 18.4. Notice to the Indemnifying Party 32 18.5. Non-Third Party Claims 32 18.6. Third Party Claims 32 18.7. Reimbursement 33 18.8. Exclusive Remedy 33 18.9 Kindred Guaranty 33 18.10 New Operator Guaranty 33 ARTICLE XIX MISCELLANEOUS 34 19.1. Effectiveness 34 19.2 Complete Understanding 34 19.3 Waiver 34 19.4 Applicable Law 34 19.5 Notices 34 19.6 Waiver of the RentsJury Trial 35 19.7. Construction 35 19.8. Exhibits 35 19.9. Severability 35 19.10. Third Party Beneficiaries 35 19.11. Counterparts 35 19.12. Electronic Signatures 35 19.13. [Intentionally Omitted] 35 19.14. Headings 35 19.15. Assignment; No Beneficiaries 35 19.16. Publicity 36 19.17. Confidentiality 36 19.18. Notice of Investigations and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleases.Default 36
Appears in 1 contract
Leases. To Borrower’s best knowledge All estate, right, title and interest of the Mortgagor in, to, under or derived from: all leases and subleases (including, without limitation, the Lease) now or hereafter in effect, whether or not of record, for the use or occupancy of all or any part of the Property (including, without limitation, all guarantees of the tenants' or subtenants' obligations thereunder), and (i) all rent roll attached hereto as Schedule 3 together with and other amounts now or hereafter payable to the schedules Mortgagor thereunder, (ii) all rights of the Mortgagor (subject to the Indenture and the exhibits attached Note Purchase Agreement) to exercise any election or option or to make any decision or determination or to give any notice, consent, waiver or approval or to take any other action under or in respect of any of such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject leases or to accept any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in surrender or redelivery of the Property or right to occupy any part thereof, as well as all the same except under rights, powers and pursuant to the provisions remedies of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender andMortgagor, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default whether acting under any of the material terms, covenants leases or provisions of the Lease, and, except as disclosed to Lender in writing by statute or at law or in equity, or otherwise, arising out of any Tenant Estoppels, Borrower knows of no event which, but for the passage of time default or the giving of notice or both, would constitute an event of default under any Lease; of such leases, and (viiii) all estate, right, title and interest of the Mortgagor as a secured party or lienholder thereunder to Borrower’s best knowledgethe extent a security interest or Lien may be deemed to be created by any such lease (the foregoing being collectively referred to as the "Leases"). Granting Clause VII. Rents, except as expressly set forth in Issues amid Profits. All estate, right, title and interest of the Mortgagor in, to, under or derived from: all rents (including, without limitation, all Base Rent and Supplemental Rent), royalties, issues, profits, receipts, revenue, income and other benefits now or hereafter accruing with respect to the Property, (including, without limitation, all rents and other sums now or hereafter payable pursuant to the Leases, the Tenant Estoppels ); all other sums now or on the Rent Roll, there are no offsets or defenses hereafter payable with respect to the payment of any portion use, occupancy, management, operation or control of the RentsProperty; and all other claims, rights and remedies now or hereafter belonging or accruing with respect to the Property, including, without limitation, fixed, additional and percentage rents, occupancy charges, security deposits, parking, maintenance, common area, tax, insurance, utility and service charges and contributions (vii) to Borrower’s best knowledgewhether collected under the Leases or otherwise), except as disclosed on proceeds of sale of electricity, gas, heating, air-conditioning and other utilities and services (whether collected under the Rent Roll Leases or otherwise), and deficiency rents and liquidated damages following default or cancellation (the foregoing rents and other sums described in any Tenant Estoppelthis Granting Clause being collectively called the "Rents"), all Rents due of which the Mortgagor hereby irrevocably directs be paid to the Mortgagee, to be held and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance applied as subject to the terms of the due dates thereofIndenture and the Lease. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesGranting Clause VIII.
Appears in 1 contract
Samples: Archon Corp
Leases. To Borrower’s best knowledge The Borrower will not enter into any lease with respect to office space in the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll Project which (collectively, the “Rent Roll”i) is trueon a form of lease not previously approved by the Project Administrative Agent, complete and correct and the Property (ii) is for a term of more than five (5) years, not subject to any Leases other including renewal periods, or more than the Leases described in the Rent Roll and those additional Leases ten (if any10) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property years including renewal periods, (iii) contains an option or right to occupy purchase all or any part of the same except under Project, (iv) covers more than a full floor of space in the Project, (v) is with an Affiliate of the Borrower or (vi) is for a base rental rate less than ninety percent (90%) of the pro forma base rental rate of $34.50 per square foot for office space in the Project, or provides for a tenant improvement allowance or for tenant improvements costing more than one hundred ten percent (110%) of the pro forma tenant allowance of $35.00 per square foot for office space in the Project unless the Borrower has notified the Project Administrative Agent of such lease and provided the Project Administrative Agent seven (7) Business Days to review such lease. Furthermore, with respect to any lease of the Project requiring the review of the Project Administrative Agent pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes terms of the preceding sentence, the term “Lease” Borrower shall exclude subleasesnot (i) permit the assignment or subletting of all or any part of the lessee's rights under such lease unless the right to assign or sublet is expressly reserved by the lessee under such lease, (ii) amend or modify such lease or (iii) accept surrender of such lease or terminate such lease except in accordance with the terms of such lease unless the Borrower has notified the Project Administrative Agent of such assignment, amendment or termination, as applicable, and provided the Project Administrative Agent seven (7) Business Days to review such assignment, amendment or termination, as applicable. The Project Administrative Agent agrees that it will review each lease, assignment of lease, or amendment to lease, as applicable, within seven (7) Business Days of receipt of such lease, assignment or amendment, as applicable. Nothing contained in this Section 7.15 shall prohibit the Borrower from entering into any lease, consenting to the assignment or subletting of any lease, or accepting the surrender or termination of any lease so long as the Administrative Agent is provided the notice and review period required by this Section 7.15.
Appears in 1 contract
Samples: Credit Agreement (Nordstrom Inc)
Leases. To The Borrower shall (a) upon the Closing Date, assign to the Administrative Agent (on behalf of the Lenders) any and all Leases, including the Ground Lease, and/or all Rents payable thereunder, including, but not limited to, any Lease which is now in existence or which may be executed after the Closing Date, (b) promptly perform and fulfill, or cause to be performed and fulfilled, each and every material term and provision of the Borrower’s best knowledge obligations under the rent roll attached hereto as Schedule 3 together with the schedules Leases and the exhibits attached LP Borrower’s obligations under the Ground Lease, including the performance of any tenant improvement work required with respect thereto, (c) give to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject Administrative Agent a copy of each notice of default given to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and tenant under a Major Lease or sent by any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant tenant thereunder to the provisions Borrower, including a copy of the Leases (and any existing subleases thereunder) or pursuant each notice of default given to the Ground Lease. As Lessee by the LP Borrower or sent by the Ground Lessee to the LP Borrower, (d) consistent with good business practices and in the best interests of the date hereof affected Project, enforce its rights with regard to all Leases and the Ground Lease unless otherwise approved by the Administrative Agent, (ie) use its commercially reasonable efforts to lease the Projects, (f) diligently enforce the terms of each Lease with respect to any construction work to be performed by the tenant thereunder so that such work is performed in a manner which will cause a minimum amount of disruption to the tenants then in occupancy at any such Project and in a manner so as not to cause a default by the Borrower is under any other tenants’ Leases or provide the owner and holder basis for any abatement or set off by any other tenant of the landlord’s interest rent payable under each any such Lease; (ii) there are no prior assignments , or a claim by any other tenant for breach of warranty of habitability or similar claim, and the LP Borrower shall diligently enforce the terms of the landlord’s interest Ground Lease with respect to any construction work to be performed by Borrower the Ground Lessee thereunder, and (and g) prior to entering into any new Lease with a retail tenant provide a copy of the Borrower’s knowledge any prior landlord) in any Lease or any portion standard form of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior retail lease to the date hereof; (iv) to Borrower’s best knowledgeAdministrative Agent for review and approval, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll which approval shall not be unreasonably withheld or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesdelayed.
Appears in 1 contract
Samples: Loan Agreement (Douglas Emmett Inc)
Leases. To Borrower’s best knowledge Each Credit Party shall timely and fully pay and perform its obligations under all leases and other agreements with respect to each leased location or public warehouse where any Collateral is or may be located, except for such payments or other obligations that (a) relate to closed Stores (including, without limitation, Stores owned by the rent roll attached hereto as Schedule 3 together J. Xxxx Entities) where no Collateral included in the calculation of the Borrowing Base most recently delivered by the Borrower Representative to the Agent is or may be located or (b)(i) are either (1) being contested in good faith by appropriate proceedings or (2) the subject of a good faith, bona fide dispute related to the leased premises (including such payments and such obligations that are the subject of an xxxxxxx internal review by such Credit Party in the determination of whether a good faith, bona fide dispute exists with respect to such payments and such obligations) consistent with the schedules practices of the Borrowers and their Subsidiaries on the Restatement Effective Date, provided that, in the case of this clause (2), upon receipt of any notice of default under the applicable lease, the applicable Credit Party or Subsidiary of a Credit Party shall promptly pay and perform its obligations under such lease, irrespective of whether the bona fide dispute is then continuing, except solely to the extent that (A) the continued failure to so pay or perform in connection with such good faith, bona fide dispute could not reasonably be expected to result in the termination of any such lease (provided that such Credit Party or such Subsidiary of a Credit Party shall promptly at the time the continued failure to so pay or perform could reasonably be expected to result in the termination of any such lease, either (x) commence a proceeding pursuant to clause (b)(i)(1) above, which proceeding shall seek to stay any such termination and such relief shall have been granted by the relevant court, or (y) deem the applicable Store subject to such lease a closed Store pursuant to clause (a) above (it being agreed that all Collateral located at such store shall be promptly excluded from the calculation of the Borrowing Base and the exhibits attached Borrowers shall deliver an updated Borrowing Base Certificate to the Agent demonstrating the exclusion of such rent roll Collateral)) and (collectivelyB) the failure to so pay or perform under such lease, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described individually or in the Rent Roll aggregate with all other leases which are the subject of a bona fide dispute, could not reasonably be expected to result in a Material Adverse Effect, and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents case, for which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants adequate reserves in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesGAAP are being maintained by such Person.
Appears in 1 contract
Samples: Credit Agreement (Talbots Inc)
Leases. To Borrower’s best knowledge the Borrower has delivered to Lender a true, correct and complete rent roll attached hereto as Schedule 3 together with for the schedules and the exhibits attached to such rent roll Property (collectively, the “Rent Roll”) is true), complete and correct and which includes all Leases affecting the Property is not subject to any Leases other than the Leases described in Property. Except as set forth on the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof Roll: (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (ii) the Tenants under the Leases have accepted possession of and are in occupancy of all of their respective demised premises, have commenced the payment of rent under the Leases, and there are no offsets, claims or defenses to the enforcement thereof; (iii) all rents due and payable under the Leases have been paid and no portion thereof has been paid for any period more than thirty (30) days in advance; (iv) the rent payable under each Lease is the amount of fixed rent set forth in the Rent Roll, and there is no claim or basis for a claim by the Tenant thereunder for an adjustment to the rent; (v) to Borrower’s best knowledgeno Tenant has made any claim against the landlord under any Lease which remains outstanding, except as disclosed there are no defaults on the Rent Roll or in part of the landlord under any tenant estoppels delivered to Lender in connection with the Loan (collectivelyLease, the “Tenant Estoppels”), neither Borrower norand, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event has occurred which, but for the passage of time or with the giving of notice or passage of time, or both, would constitute an event of default under any Leasesuch a default; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, there is no present material default by the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of under any portion of the RentsLease; and (vii) to Borrower’s best knowledge, except all security deposits under Leases are as disclosed set forth on the Rent Roll or and are held consistent with Section 3.8; (viii) Borrower is the sole owner of the entire lessor’s interest in any Tenant Estoppel, all Rents due and payable under each Lease; (ix) each Lease have been paid in full andis the valid, binding and enforceable obligation of Borrower and the applicable Tenant thereunder; (x) no Person has any possessory interest in, or right to occupy, the Property except for estimated payments under the terms of operating expenses a Lease; and taxes made by tenants in accordance with their Leases(xi) each Lease is subordinate to the Loan Documents, no either pursuant to its terms or pursuant to a subordination and attornment agreement. None of the Leases contains any option to purchase or right of first refusal to purchase the Property or any part thereof. Neither the Leases nor the Rents have been paid more than one (1) month in advance assigned or pledged except to Lender, and no other Person has any interest therein except the Tenants thereunder. Borrower represents and warrants to Lender that all pass-throughs of costs, charges, reimbursements and expenses charged by Borrower, as landlord, of Tenants pursuant to the due dates thereof. For purposes terms and provisions of current and prior Leases are and were properly payable by such Tenants pursuant to the preceding sentence, the term “Lease” shall exclude subleasesterms and provisions of such Leases.
Appears in 1 contract
Leases. To Borrower’s best knowledge Each of Borrower and Op Co Pledgor represents and warrants to Lender with respect to the Leases that: (a) the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) V is true, correct and complete and correct and the Property is not subject to any Leases other than the Operating Lease, the Leases described in Schedule V, and the Rent Roll and those additional tour desk license agreement at two (2) Individual Properties, (b) the Leases (if any) identified on Schedule 2 attached hereto V are in full force and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender effect and, to Borrower’s knowledgeand Op Co Pledgor’s Actual Knowledge, the Leases have not been further modified or amendedthere are no defaults thereunder by any party thereto and no conditions that, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice notice, or both, would constitute an event defaults thereunder, (c) the copies of default under any Lease; (vi) the Leases identified on Schedule V delivered to Borrower’s best knowledgeLender are true, except as expressly set forth in the Leasescorrect and complete, the Tenant Estoppels or on the Rent Roll, and there are no offsets oral agreements with respect thereto, (d) no Rent (including security or defenses to other deposits) under the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have Leases has been paid more than one (1) month in advance of its due date, (e) all work, if any, to be performed by the due dates thereof. For purposes landlord under each under the Leases has been performed as required and has been accepted by the applicable Tenant, (f) any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by the landlord to any Tenant under the Leases has already been received by such Tenant, (g) all security or other deposits (if any) are being held in accordance with the applicable Leases and all applicable Legal Requirements, (h) neither Borrower nor Op Co Pledgor has knowledge of any notice of termination or default with respect to any Lease, (i) neither Mortgage Borrower nor Operating Lessee assigned or pledged any of the preceding sentenceLeases, the rents or any interest therein except to Mortgage Lender, (j) the Leases do not contain any option, right of first refusal or offer or any other preferential right to purchase all or any portion of, or interest in, the Property, or any right or option for additional space in the Improvements, (k) no Tenant has any right or option for additional space in the Improvements, (l) no Tenant has assigned its Lease or sublet all or any portion of the premises demised thereby, (m) no Tenant has the right to terminate its Lease prior to expiration of the stated term “of such Lease” shall exclude subleases, (n) all existing Leases are subordinate to the Security Instrument either pursuant to their terms or a recorded subordination agreement, and (o) other than the Operating Lessee, Tenants under the Leases identified on Schedule V, and the tour desk licensees at two (2) Individual Properties, there are no tenants or any other Person (other than hotel guests) with any rights to use or occupy the Property or the Improvements or any portion(s) thereof.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Hersha Hospitality Trust)
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules An accurate and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest summary thereof in a form reasonably satisfactory to the Majority Banks as of the date of inclusion of the Mortgaged Property in the Property Collateral (or right to occupy the same except under and pursuant such other recent date as may be acceptable to the provisions Agent) with respect to all Leases of any portion of the Mortgaged Property has been provided to the Agent. The Leases reflected on such Rent Roll constitute as of the date thereof the sole agreements and understandings relating to leasing or licensing of space at the Mortgaged Property and in the Building relating thereto. Each of the Leases (was entered into as the result of arms-length negotiation and any existing subleases thereunder) has not been modified, changed, altered, assigned, supplemented or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) amended in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amendedrespect, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or reflected on the Rent Roll, there are and no offsets tenant is entitled to any free rent, partial rent, rebate of rent payments, credit, offset or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledgededuction in rent, including, without limitation, lease support payments or lease buy-outs, except as disclosed on reflected in the Rent Roll Roll. There are no occupancies, rights, privileges or licenses in any Tenant Estoppelor to the Mortgaged Property or portion thereof other than pursuant to the Leases reflected in Rent Rolls previously furnished to the Agent for the Mortgaged Property. Except as set forth in each Rent Roll, all Rents due and payable under each Lease have been paid the Leases reflected therein are in full and, except for estimated payments of operating expenses force and taxes made by tenants effect in accordance with their respective terms, without any payment default or any other material default thereunder, nor are there any defenses, counterclaims, offsets, concessions or rebates available to any tenant thereunder, and neither the Borrower, the Guarantor nor any of their respective Subsidiaries has given or made, any notice of any payment or other material default, or any claim, which remains uncured or unsatisfied, with respect to any of the Leases. The Rent Rolls furnished to the Banks accurately and completely set forth all rents payable by and security, if any, deposited by tenants, no Rents have been tenant having paid more than one (1) month month's rent in advance advance. All tenant improvements or work to be done for tenants on the Rent Roll, furnished or paid for by the Borrower, the Guarantor or any of their respective Subsidiaries, or credited or allowed to a tenant, for, or in connection with, the Building pursuant to any Lease has been completed and paid for or provided for in a manner satisfactory to the Agent. No material leasing, brokerage or like commissions, fees or payments are due from the Borrower, the Guarantor or any of their respective Subsidiaries in respect of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesLeases.
Appears in 1 contract
Samples: Master Revolving Credit Agreement (Ramco Gershenson Properties Trust)
Leases. To Borrower’s best knowledge Except as disclosed in any Tenant estoppel certificate addressed and delivered to Lender prior to the Closing Date or in Schedule 3.1.22 attached hereto, or otherwise disclosed to Lender in writing: (a) the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) I is true, complete and correct and the correct, no Property is not subject to any Leases other than the Leases described in the Rent Roll Schedule I, and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the any Property or right to occupy the same except under and pursuant to the provisions of the Leases; (b)(i) the Leases (identified on Schedule I are in full force and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; effect, (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender andmonetary defaults or, to Borrower’s knowledgeKnowledge, the Leases have not been further modified or amendedmaterial non-monetary defaults thereunder by any applicable Tenant, except (iii) there are no defaults thereunder by Borrower, as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Leaselandlord, and, except as disclosed to Lender in writing or in any Tenant EstoppelsBorrower’s Knowledge, Borrower knows of there are no event whichconditions that, but for with the passage of time or the giving of notice notice, or both, would constitute an event of a default under any Lease; by Borrower, as landlord, thereunder, and (viiv) to Borrower’s best knowledgeKnowledge, except as expressly set forth in no Tenant is subject to an action under any state or federal bankruptcy, insolvency, or similar laws or regulations, (c) the Leasescopies of the Leases delivered to Lender are true and complete, the Tenant Estoppels or on the Rent Roll, and there are no offsets or defenses to the payment of any portion of the Rents; and oral agreements with respect thereto, (viid) to Borrower’s best knowledge, except as disclosed on the no Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have (other than security deposits) has been paid more than one (1) month in advance of its due date, (e) all work to be performed by Borrower under each Lease to which such Borrower is a party has been performed as required and has been accepted by the due dates thereof. For purposes applicable Tenant, and Borrower has no remaining obligation to pay for Tenant Improvements, Tenant Improvement Allowances or Leasing Commissions for existing Leases, (f) any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by the applicable Borrower to any Tenant has already been received by such Tenant, (g) any security deposits are being held in accordance with Legal Requirements, (h) all Tenants at the Property are paying full rent under their Leases; (i) no Tenant under any Lease (or any sublease) is an Affiliate of Borrower, (j) no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the preceding sentenceleased premises or the Improvements of which the leased premises are a part, (k) each Tenant at the term “Property is in physical occupancy of the premises demised under its Lease” shall exclude subleases, to Borrower’s Knowledge and has not sublet any portion thereof to any Person, and (l) no Person other than the applicable Borrower and the applicable Tenant have any right, title or interest in and to the Leases and Rents except the rights and Liens granted to Lender pursuant to the Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Industrial Logistics Properties Trust)
Leases. To Borrower(a) Section 5.22(a) of the Seller Disclosure Schedules sets forth Seller’s best knowledge good faith determination of: (i) each leasehold interest of Seller, any Purchased Company or each of their respective Affiliates in all real property used in connection with the rent roll attached hereto as Schedule 3 Business, including any such leasehold interest that is used jointly by the Business and any JCI Retained Business (together with the schedules all extensions and the exhibits attached to such rent roll (collectivelymodifications thereto, the “Rent RollBusiness Leases”); (ii) which Business Leases govern real property that is true“substantially GWS only” and will therefore be included in the Purchased Assets (each, complete a “Transferred Lease”); and correct and the Property (iii) which Business Leases govern real property that is not subject to any Leases other than the Leases described “substantially GWS only” and will therefore be included in the Rent Roll Excluded Assets (each, a “Retained Lease”). During the one hundred and those additional Leases twenty (if any120) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of days following the date hereof (i) Borrower is the owner “Lease Determination Period”), Seller shall provide Purchaser with documentation and holder of the landlord’s interest under other information reasonably requested by Purchaser regarding each Business Lease; (ii) there are no prior assignments of the landlord’s interest , and Seller and Purchaser shall cooperate in good faith to determine whether any Business Leases designated by Borrower (and to Borrower’s knowledge any prior landlord) in any Seller as a Transferred Lease should be redesignated as a Retained Lease or any portion Business Leases designated by Seller as a Retained Lease should be redesignated as a Transferred Lease (and update Section 5.22(a) of Rents which are presently outstanding and have priority over the Assignment Seller Disclosure Schedules accordingly) based on the principle that all Business Leases governing real property where substantially all of Leases and Rentsthe usable space is occupied by Business Employees will be designated Transferred Leases. Purchaser may only not accept a characterization of a Business Lease as a Transferred Lease in good faith for the following reasons: (I) there exists on the real property governed by such Business Lease a previously undisclosed issue relating to Environmental Laws; (iiiII) true the rent for such Business Lease is not economic and correct copies is not consistent with the Business Financial Statements; (III) substantially all of the Leases have been delivered usable space was not continuously occupied by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, Business Employees during the Leases have not been further modified or amended, except as disclosed to Lender in writing on or twelve (12)-month period prior to the date hereofClosing; or (ivIV) any other reason that is similarly adverse to Borrower’s best knowledge, each Lease is in full force Purchaser and effect; its Affiliates as clauses (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”I), neither Borrower nor, (II) or (III). Purchaser may not otherwise fail to Borrower’s knowledge, any tenant under any accept a characterization of a Business Lease is in default under any of the material terms, covenants or provisions of the as a Transferred Lease, andincluding, except as disclosed for example, by reason of Purchaser owning or leasing a facility nearby that could accommodate the Business Employees occupying such Business Lease or, subject to Lender in writing clause (II) above, because the Business Lease contains unfavorable or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time uneconomic terms or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesconditions.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Cbre Group, Inc.)
Leases. To Borrower’s best knowledge (a) Borrower shall furnish Lender with executed copies of all Leases. A new Lease which is not a Major Lease, a renewal and extension or amendment of a Lease which is not a Major Lease, shall not require Lender's approval, PROVIDED (i) the rent roll and other amounts payable thereunder, based upon the location of the demised premises, the type of property, and the tenant improvements, allowances or concessions to be made or provided by the landlord thereunder (taken as a whole) are "market" rate as determined by Borrower in good faith, and (ii) the other proposed terms thereof (taken as a whole) are Commercially Reasonable as determined by Borrower in good faith. Lender hereby agrees that the terms and provisions of Borrower's standard forms of Lease attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll EXHIBIT D (collectively, the “Rent Roll”"STANDARD LEASE FORM") is true, complete and correct and the Property is not subject without material deviation (defined for these purposes as a deviation that would likely be objectionable to any Leases other than the Leases described in the Rent Roll and those additional Leases (if anya prudent institutional lender) on Schedule 2 attached hereto and any existing subleases thereunderare Commercially Reasonable. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant Subject to the provisions of the next sentence, all new Leases must provide that they are subject and subordinate to any current or future mortgage financing on the Property and that the Tenant agrees to attorn to any foreclosing mortgagee at such mortgagee's request. Lender agrees to execute subordination, non-disturbance and attornment agreements on the form attached hereto as EXHIBIT E (and with such changes as reasonably approved by Lender), or, if required under the applicable Lease, any existing subleases thereunder) or pursuant other form reasonably satisfactory to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and Lender, with respect to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents as to which are presently outstanding a subordination, non-disturbance and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been attornment agreement is required to be delivered by Lender, either as an obligation of Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each under such Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered order to Lender in connection with effect the Loan (collectively, subordination of such Lease and the “Tenant Estoppels”), neither Borrower nor, agreement to Borrower’s knowledge, any tenant under any Lease is in default under any of attorn by the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesrelated Tenant.
Appears in 1 contract
Samples: Loan Agreement (Las Vegas Sands Inc)
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”a) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Major Lease is in full force and effect; (vb) the premises demised under the Major Leases have been completed, all alterations or other work required to Borrower’s best knowledge, except as disclosed be performed on the Rent Roll part of Mortgage Borrower or Operating Lessee has been completed, and the Tenants under the Major Leases have accepted possession of and are in physical occupancy of all of their respective demised premises; (c) the Tenants under the Major Leases have commenced the payment of rent under the Major Leases, there are no offsets, claims or defenses to the enforcement thereof, and neither Mortgage Borrower nor Operating Lessee has any tenant estoppels delivered monetary obligations to Lender in connection with the Loan (collectively, the “any Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Major Lease; (vid) to Borrowerall Rents due and payable under the Major Leases have been paid and no portion thereof has been paid for any period more than thirty (30) days in advance; (e) no Tenant has made any written claim of a material default against the landlord under any Major Lease which remains outstanding; (f) there is no present material default by the Tenant under any Major Lease; (g) all security deposits under the Major Leases have been collected by Mortgage Borrower or Operating Lessee; (h) Mortgage Borrower or Operating Lessee is the sole owner of the entire landlord’s best knowledgeinterest in each Major Lease; (i) each Major Lease is the valid, except binding and enforceable obligation of Mortgage Borrower and/or Operating Lessee and the applicable Tenant thereunder and there are no agreements with the Tenants under the Major Leases other than as expressly set forth in the Major Leases; (j) no Person has any possessory interest in, the Tenant Estoppels or on the Rent Rollright to occupy, there are no offsets any Individual Property or defenses to the payment of any portion thereof except under the terms of a Lease or as a hotel guest; (k) none of the RentsLeases contains any option or offer to purchase or right of first refusal or right of first offer to purchase or lease any Individual Property or any part thereof; and (viil) to Borrower’s best knowledge, except as disclosed on neither the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Leases nor the Rents have been paid more than one (1) month in advance assigned, pledged or hypothecated except to Mortgage Lender. Borrower represents that it has heretofore delivered to Lender true, correct and complete copies of the due dates all Major Leases and any and all amendments or modifications thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleases.
Appears in 1 contract
Samples: Mezzanine a Loan Agreement (Ashford Hospitality Trust Inc)
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such (i) The rent roll (collectively, the “Rent Roll”) attached hereto as Schedule 7.1.6(i) is true, complete and correct and the Property is not subject to any Leases other than the Leases described complete in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Leaseall material respects; (ii) there are no prior assignments copies of all Leases in effect as of the landlord’s interest by Borrower (Contract Date, and to Borrower’s knowledge all amendments thereto and guaranties thereof, if any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant EstoppelsExisting Leases”)) have been furnished by Sellers to Buyer; (iii) to Seller’s knowledge, neither Borrower northe copies so provided are true, correct and complete and there are no other Leases or occupancy agreements with respect to all or any portion of the Property that are binding on Sellers or any portion of the Property other than the Contracts, such agreements as are disclosed by the Title Commitment, and, to BorrowerSeller’s knowledge, any subleases or other agreements entered into by Tenants with parties other than Sellers or their predecessors-in-interest that are listed on Schedule 7.1.6(iii); (iv) Schedule 7.1.6(iv) sets forth a true, correct and complete description of all Existing Leases; (v) no Seller has given to any tenant nor received from any tenant written notice of any default under any Existing Lease that remains uncured and, to Sellers’ knowledge, no Seller is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any LeaseLeases; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leaseson Schedule 7.1.6(vi), the Tenant Estoppels all tenant improvements and other build-out or on the Rent Rollconstruction obligations that a Seller, there are no offsets or defenses as landlord, is obligated to complete, prior to the payment of date hereof and pursuant to any portion of Existing Lease, have been completed and paid for in full and all tenant allowances, lease buyout costs and relocation costs due prior to the Rentsdate hereof from a Seller, as landlord, under any Existing Lease have been paid; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and no rents payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents the Leases have been paid more than one thirty (130) month days in advance advance, (viii) no Seller has received written notice from any tenant under a Lease exercising any termination right or termination option under such tenant’s Lease; (ix) the Rent Roll includes a true, correct and complete list of all security deposits and other refundable tenant deposits held by Sellers with respect to the Property; and (x) Schedule 7.1.6(ix) sets forth all Sellers’ Lease Expenses (hereinafter defined) unpaid or outstanding as of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesdate hereof.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Blackstone Real Estate Income Trust, Inc.)
Leases. To (a) All Leases and other rental arrangements shall in all material respects be approved by Lender and shall be on a standard Lease form previously approved by Lender with no modifications (except as approved by Lender). Such Lease form shall provide that (i) the Lease is subordinate to the Mortgage, (ii) the tenant shall attorn to Lender, and (iii) that any cancellation, surrender, or amendment of such Lease without the prior written consent of Lender shall be voidable by Lender. Borrower shall hold, in trust, all tenant security deposits in a segregated account, and, to the extent required by applicable law, shall not commingle any such funds with any other funds of Borrower. Within ten (10) days after Lender’s request, Borrower shall furnish to Lender a statement of all tenant security deposits, and copies of all Leases not previously delivered to Lender, certified by Borrower as being true and correct in all material respects. Notwithstanding anything contained in the Loan Documents, Lender’s approval shall not be required for future Leases, Lease modifications, or Lease extensions if the following conditions are satisfied: (A) no Event of Default has occurred and is continuing; (B) the Lease is on the standard Lease form approved by Lender with no modifications except for commercially reasonable modifications agreed to in the ordinary course of Borrower’s best knowledge business, but in no event shall there be any material modifications to the rent roll attached subordination, attornment, estoppel and landlord liability clauses of such Lease without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed; (C) the Lease does not violate any restrictive covenant affecting the Property or any other Lease for space in the Property; (D) the Lease is not a Major Lease; (E) the Lease shall provide for rental rates and landlord concessions comparable to existing local market rates and shall be an arms length transaction and in no event be with an Affiliate of Borrower; (F) the Lease shall be to a tenant which Borrower, in its professional and commercially reasonably judgment, has determined is creditworthy; and (G) the Lease is for a term of not more than ten (10) years (exclusive of renewal options, which together with the initial lease term shall not exceed fifteen (15) years). Lender shall execute and deliver a Subordination Non-Disturbance and Attornment Agreement in the form annexed hereto as Schedule 3 together IV to Tenants under future Major Lease approved by Lender promptly upon request with the schedules such commercially reasonable changes as may be requested by Tenants, from time to time, and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower reasonably acceptable to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesLender.
Appears in 1 contract
Leases. To Borrower’s best knowledge the Borrower has delivered to Lender a true, correct and complete rent roll attached hereto as Schedule 3 together with for the schedules and the exhibits attached to such rent roll Property (collectively, the “Rent Roll”) is true), complete and correct and which includes all Leases affecting the Property is not subject to any Leases other than the Leases described in Property. Except as set forth on the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto the Tenant estoppels and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest aged receivables report delivered to Lender in connection with the Property or right to occupy the same except under and pursuant to the provisions closing of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof Loan: (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (ii) the Tenants under the Leases have accepted possession of and are in occupancy of all of their respective demised premises, have commenced the payment of rent under the Leases, and there are no offsets, claims or defenses to the enforcement thereof; (iii) all rents due and payable under the Leases have been paid and no portion thereof has been paid for any period more than thirty (30) days in advance (except for security deposits and the last month’s rents aggregating not more than 2 months’ rent); (iv) the rent payable under each Lease is the amount of fixed rent set forth in the Rent Roll, and there is no claim or basis for a claim by the Tenant thereunder for an adjustment to the rent; (v) to Borrower’s best knowledge, except as disclosed on no Tenant has made any claim against the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant landlord under any Lease is in default which remains outstanding, there are no defaults on the part of the landlord under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of and no event has occurred which, but for the passage of time or with the giving of notice or passage of time, or both, would constitute an event of default under any Leasesuch a default; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, there is no present material default by the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of under any portion of the RentsLease; and (vii) to Borrower’s best knowledge, except all security deposits under Leases are as disclosed set forth on the Rent Roll or and are held consistent with Section 3.8; (viii) Borrower is the sole owner of the entire lessor’s interest in any Tenant Estoppel, all Rents due and payable under each Lease; (ix) each Lease have is the valid, binding and enforceable obligation of Borrower and the applicable Tenant thereunder; (x) no Person has any possessory interest in, or right to occupy (other than any right of the Manager to occupy a management office located on the Property), the Property except under the terms of a Lease; (xi) each Lease is subordinate to the Loan Documents, either pursuant to its terms or pursuant to a subordination and attornment agreement; and (xii) each Lease has been paid in full and, except for estimated payments written using the same form of operating expenses and taxes made by tenants in accordance with their Leases, no lease. None of the Leases contains any option to purchase or right of first refusal to purchase the Property or any part thereof. Neither the Leases nor the Rents have been paid more than one (1) month in advance of assigned or pledged except to Lender, and no other Person has any interest therein except the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesTenants thereunder.
Appears in 1 contract
Leases. To Borrower’s best knowledge There are no other leases, licenses, subleases, occupancy agreements or other agreements for the use, possession or occupancy of any portions of the Real Property, other than those listed on Exhibit L attached to this Agreement. The rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is Exhibit L contains a true, complete and correct and complete list of all currently existing Leases at the Property to which Seller is not subject to any Leases other than the Leases described in the Rent Roll a party; full, true and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions complete copies of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of all Leases and Rents; (iii) true all amendments and correct copies of the Leases guarantees relating thereto have heretofore been delivered by Borrower to Lender Buyer (or made available to Lender and, to Borrower’s knowledge, Buyer as part of the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best Documents). To Seller's knowledge, each Lease is in full force and effect; (v) , and except as shown on Exhibit L, to Borrower’s best Seller's knowledge, except as disclosed on the Rent Roll no rent or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and other amounts payable under each Lease have been paid the Leases is more than one (1) month in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have arrears or has been paid more than one (1) month in advance advance. Exhibit L sets forth a true and correct listing of all security deposits (indicating cash or letter of credit) or prepaid rentals made or paid by the tenants under the Leases. Except as shown in Exhibit L, Seller has not delivered any written notices of tenant default to any tenants under Leases which remain uncured, nor has Seller received any written notices of a landlord default from any tenants under Leases which remain uncured. None of Seller's interest in any Lease or of Seller's right to receive the rentals payable by the tenant thereunder has been assigned, conveyed, pledged or in any manner encumbered by Seller, except in connection with any existing financing encumbering the Property, which is to be repaid by Seller and released as of the due dates thereofClosing. For purposes Except as described on Exhibit L, no tenant has given written notice to Seller of any default or offsets, claims or defenses available to it. The only Tenant Inducement Costs in the nature of tenant improvement costs for space currently being leased under any Leases in effect as of the preceding sentencedate hereof (whether in the form of direct payments therefor required of Seller or in the form of tenant improvement allowances payable by Seller) or for leasing commissions for leased premises currently being leased under any such Leases, in any such case which may hereafter be payable under or with respect to the term “Lease” shall exclude subleasesLeases (and excluding, in any event any such Tenant Inducement Costs which may arise in connection with expansions or lease renewals/extensions hereafter occurring under or with respect to any such Leases) are identified in Exhibit L hereto.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Plymouth Industrial REIT Inc.)
Leases. To Borrower’s the best knowledge the rent roll attached hereto of Seller's knowledge, after diligent inquiry, except as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than provided on Exhibit "E," the Leases described are in full force and effect and are valid and subsisting documents covering the Rent Roll entire estates which they purport to cover; all royalties, rentals and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except other payments due under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower fully, properly and timely paid; no party to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under breach of any of provision thereof and no such breach has been alleged by any lessor; and all conditions necessary to keep the material terms, covenants or provisions of the Lease, and, except Leases in force have been performed. Except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly be set forth in the Leaseson Exhibit "E", the Tenant Estoppels or on the Rent Roll, there are Seller has received no offsets or defenses to the payment of currently pending demand for release regarding any portion of the Rents; Leases. Seller will use its best efforts to take all prudent action necessary to keep the Leases in force and (vii) effect until the Closing. Seller shall provide to Borrower’s best knowledgeBuyer a schedule of all special provisions on a lease-by- lease basis as soon as practicable after execution of this Agreement. Buyer shall assume, except at its sole option and at Seller's actual cost and expense, any and all interests in the nature of the Subject Properties acquired, and any and all outstanding offers and commitments made by Seller which become due after the date of this Agreement, and as disclosed on to offers for new leases, which are beyond the Rent Roll first 66,000 net acres covered by the Leases. Seller shall not compete for or acquire any interest in lands within the Kansas counties of Neosho or in the easternmost ten miles of Wilsxx xxx a period of two (2) years from or after the date of this Agreement. Any such subsequent interest so acquired by Seller, at Buyer's option, shall be promptly assigned to Buyer without reservation of any Tenant Estoppelinterest and within fifteen (15) days thereafter, all Rents due and payable under each Lease have been paid Buyer shall reimburse Seller the actual cost incurred in full andthe payment of bonus therefor. The Willxxxx Xxxup shall not be prohibited from normal well consulting or participation in wellx 'xx the area, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid but they shall not acquire new acreage blocks (more than one (1640 acres cumulative) month in advance which might conflict with the activities and interests of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesBuyer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (United States Exploration Inc)
Leases. To Borrower’s best knowledge The two leases (the rent roll attached hereto as Schedule 3 together with “Leases”) by and between State Street Corporation (the schedules “Tenant”) and Lincoln Street Property Owner, LLC and the exhibits attached to such rent roll sublease (collectively, the “Rent RollSublease”) is truebetween the Tenant and K&L Gates LLP (the “Subtenant”) are the only leases related to the Property, complete and correct each of the Leases and the Property is not subject Sublease are, and upon consummation of the Acquisition will be, in full force and effect upon consummation of the Acquisition, and neither the Company nor any Subsidiary has any notice of any claim of any sort that has been asserted by anyone adverse to the rights of the A-1 Series or any Leases other than Subsidiary under any of the Leases or the Sublease. To the knowledge of the Company and the A-1 Series, neither the Tenant nor the Subtenant is the subject of bankruptcy, reorganization or similar proceedings. To the knowledge of the Company and the A-1 Series, except as set forth in or described in the Rent Roll Registration Statement, the General Disclosure Package and those additional Leases the Prospectus or reflected in the pro forma financial statements, and, with respect to (if anyA) on Schedule 2 attached hereto and through (E) below, except as could not, individually or in the aggregate, have a Material Adverse Effect: (A) Neither the Tenant nor the Subtenant has asserted in writing any existing subleases thereunder. To Borrower’s best knowledge no Person defense or set-off against the payment of rent in connection with any lease nor has any possessory interest tenant contested any tax, operating cost or other escalation payment or occupancy charge, or any other amounts payable under the Leases or the Sublease; (B) the Tenant, the Subtenant and all licensees, franchisees or other parties under the Leases or the Sublease or exhibit, schedule, amendment or other document related to the Leases or the Sublease are in possession of their respective premises; (C) neither the Leases nor the Sublease has been assigned, mortgaged, pledged, sublet, hypothecated or otherwise encumbered, except in connection with secured debt described in the Property or right to occupy Registration Statement, the same except General Disclosure Package and the Prospectus; (D) none of the Transaction Entities has waived any material provision under and pursuant to the provisions any of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each LeaseSublease; (iiE) there are no prior assignments uncured events of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease default, or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection events that with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or passage of time, or both, would constitute an event of default default, by any tenant under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; terms and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance provisions of the due dates thereof. For purposes of Leases or the preceding sentence, the term “Lease” shall exclude subleasesSublease.
Appears in 1 contract
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”i) is true, complete and correct and the The Property is not subject to any Leases other than the Leases described Master Lease, and the demised premises under the Master Lease constitute the entirety of the Land and the Improvements. The initial term of the Master Lease does not expire prior to the date that is the later to occur of the date that is (A) fifteen (15) years following the Must-Take Space Commencement Date (as defined in the Rent Roll Master Lease and those additional Leases (if anyB) fifteen (15) years following the Closing Date. Master Tenant is required to commence payment of base rental payments under the Master Lease, with respect to Building A, not later than the Closing Date, and, with respect to the Required Improvements, on Schedule 2 attached hereto the date (such date, the “Master Lease Payment Outside Date”) that is the earlier to occur of (x) the date on which the Project is Substantially Complete and any existing subleases thereunder(y) the Substantial Completion Due Date. To Borrower(ii) With respect to each Lease (including, without limitation, the Master Lease, (A) Borrower is the owner of landlord’s best knowledge interest in such Lease, (B) other than with respect to Permitted Encumbrances, no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases such Lease, (and any existing subleases thereunderC) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each such Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”tenants thereunder have accepted possession of and are in occupancy of all of their respective demised premises (except, prior to the Substantial Completion Due Date, Building B), neither are open for business, and are paying (except, prior to the Master Lease Payment Outside Date, the Master Lease Payments in respect of Building B) full, unabated rent, and no tenant under such Lease has given Borrower norany notice of its intent to terminate such Lease or vacate the leased premises (and Borrower has no knowledge that any such tenant intends to so terminate or vacate), to Borrower’s knowledge, (D) Borrower has not received written notice from any tenant under such Lease claiming that Borrower (or any Lease prior landlord) is in default under any thereunder, and to the knowledge of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of defaults under such Lease by any portion of the Rents; and party thereto, (viiE) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have Revenue has been paid more than one (1) month in advance of its due date, (F) all work to be performed by Borrower (or any prior landlord) under such Lease (other than, with respect to the due dates thereof. For purposes Master Lease, the Required Improvements) has been performed as required and has been accepted by the applicable tenant, (G) any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any tenant has already been received by such tenant, (H) all security deposits are held by Borrower in accordance with the terms of such Lease and applicable Legal Requirements, (I) no tenant under such Lease is a debtor in state or federal bankruptcy, insolvency, or similar proceeding, (J) other than Master Tenant under the Master Lease, no tenant under such Lease (or any sublease) is an Affiliate of Borrower, (K) except, in each case, in accordance with the express provisions of this Agreement, no tenant has assigned any interest in such Lease or sublet all or any portion of the preceding sentencepremises demised thereby, the term “Lease” shall exclude subleases.no such tenant holds its leased premises under assignment or sublease, nor does anyone except such tenant and its
Appears in 1 contract
Samples: Loan Agreement (Instil Bio, Inc.)
Leases. To Borrower’s best knowledge Mortgagor may, from time to time, enter into Leases for all or any portion of the rent roll attached hereto Premises without the consent of Mortgagee or notice to Mortgagee, provided, however, the Mortgagor shall not enter into a Major Lease (as Schedule 3 hereafter defined) unless and until (1) Mortgagor shall give Mortgagee fifteen (15) days prior written notice of its intent (the “Major Lease Notice”) to enter the Major Lease, together with a copy of such proposed Major Lease; and (2) Mortgagor shall deliver to Mortgagee simultaneously with such Major Lease Notice a legal opinion from counsel reasonably acceptable to Mortgagee stating that entering into the schedules Major Lease by Mortgagor shall have no material adverse effect on the priority and validity of the exhibits attached lien granted hereunder. subject to such rent roll bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights as to which no opinion need be expressed. Mortgagee agrees that Mortgagee, at the request of Mortgagor, will enter into a Subordination, Non-Disturbance and Attornment Agreement in the form annexed as Exhibit D (collectively, the “Rent RollNon-Disturbance Agreement”) is true, complete and correct and with the Property is not subject to lessee or tenant under any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunderlease. To Borrower’s best knowledge no Person has any possessory interest in the Property Mortgagor may terminate or right to occupy the same except under and pursuant consent to the provisions cancellation or surrender of any of the Leases (and or of any part thereof, now existing subleases thereunder) or pursuant hereafter to be made, modify any Lease so as to shorten the unexpired term thereof or so as to decrease, waive or compromise in any manner the amount of the rents payable thereunder or modify, release or terminate any guaranties of any Lease or otherwise deal with any lease, any of which actions of Mortgagor shall, however, be subject to the Ground Leaseterms of any Non-Disturbance Agreement entered into between Mortgagee and Lessee or tenant of Mortgagor, if any. As of Notwithstanding the date hereof foregoing, Mortgagee may, at its discretion, withhold entering into the Non-Disturbance Agreement for a Major Lease if (i) Borrower is such tenant under the owner and holder of Major Lease does not have a credit rating (according to Dun & Bradstreet or other recognized national credit rating organization) equal to or greater than the landlord’s interest borrowers under each Leasethe Notes on a consolidated basis; (ii) there are no prior assignments the term of the landlord’s interest by Borrower Lease would not extend beyond the maturity date of the Notes (and to Borrower’s knowledge any prior landlordexcept that if the Lease is of the entire Premises this clause (ii) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rentsshall not apply); (iii) true and correct copies the rent is not the fair market rent at the inception of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereofLease; and (iv) the use under the Lease violates zoning or other similar laws applicable to Borrower’s best knowledge, each Lease the Mortgaged Property or is in full force and effect; (v) a use which requires the tenant to Borrower’s best knowledge, except register as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection a generator of hazardous wastes with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, appropriate governmental authorities except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment extent such use is now being carried on by Mortgagor at the Mortgaged Property but excluding any such use which violates any governmental laws, ordinances, orders or directives, rules or regulations affecting the Mortgaged Property, including rules and regulations of any portion Board of Fire Underwriters (or other agency exercising similar functions) having jurisdiction over the Rents; and (vii) Mortgaged Property. Notwithstanding the foregoing, nothing herein contained shall prohibit or limit Mortgagor from permitting any corporate affiliate of Mortgagor to Borrower’s best knowledge, except as disclosed on use or occupy the Rent Roll Premises or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasespart thereof without notice to Mortgagee.
Appears in 1 contract
Samples: Open End Mortgage Deed and Security Agreement (General Datacomm Industries Inc)
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and There are no leases of space in the Property which will be in force on the Closing Date and under which Seller is not the landlord (whether by entering into the leases or acquiring the Property subject to any Leases the leases) other than the Leases described Leases. As used herein, “Leases” means, collectively, (i) the leases listed in Exhibit “O” (the Rent Roll “Lease Exhibit”) and those additional (ii) the leases entered into in accordance with this Agreement. Seller has provided Buyer with true, correct and complete copies of all Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under all modifications and pursuant amendments thereto, all related correspondence, side letters, indemnity and/or reimbursement agreements, letters of credit and other documents and materials relating thereto, and, to the provisions extent in Seller’s possession, copies of all subleases and other occupancy agreements affecting the Property). None of the Leases (and any existing subleases thereunder) or pursuant to has been amended except as set forth in the Ground LeaseLease Exhibit. There are no security deposits under the Leases except as set forth in the Lease Exhibit. As of the date hereof Closing, there shall be no commissions or tenant improvement cost obligation owing by Seller with respect to any Leases in effect as of the Closing, except for (1) extensions, expansions, options or renewals of existing Leases (provided that such obligations are set forth in the applicable Lease or in Exhibit “P”) or (2) in connection with new Leases which are permitted hereunder. To Seller’s knowledge, (i) Borrower is the owner and holder of the landlord’s interest under each Lease; (ii) there are no prior assignments of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies all of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is are in full force and effect; , (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in neither Seller nor any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in monetary default or material non-monetary default under any of the material terms, covenants or provisions of the Lease, andLeases, except as disclosed to Lender in writing or in any Tenant Estoppelsset forth on Exhibit “Q”, Borrower knows of and (iii) no event which, but for the passage of time or the giving of notice or both, would constitute an event of default tenant under any Lease; (vi) Lease has filed for bankruptcy. Additionally, Seller hereby represents and warrants to Borrower’s best knowledge, except Buyer that attached to this Agreement as expressly set Exhibit “O-1” is a rent roll of the Leases which correctly sets forth in the Leasesname of each tenant, the Tenant Estoppels or on space affected, the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentencerent, the term “Lease” shall exclude subleases(including any options to renew), the security deposit, if any, and any special concessions, prepaid rent, options to purchase or rights of first refusal.
Appears in 1 contract
Samples: Purchase Agreement (Hines Real Estate Investment Trust Inc)
Leases. To Borrower’s best knowledge (a) Section 5.11(a) of the rent roll attached hereto as Disclosure Schedule 3 together sets forth a true and complete list of all leases, agreements and other rights of possession or commitments to lease or otherwise possess, under which Seller or any of its Subsidiaries is the lessor, licensor or otherwise grants use or occupancy, and under which any Sellers have a leasehold interest or other contractual rights in or to any Purchased Asset, which in the case of leases for personal property provides for annual rental payments of more than $250,000 (collectively "Material Personalty Leases") and which includes all leases for Real Property and leases related to the Temple-Inland Canal Easement or the Water Easement and which is not terminable without penalty upon notice of 12 months or less, such list including, for each such Lease: (i) an identification of the lease, sublease or license agreement therefor (or any other agreement with respect to the schedules use or occupancy thereof) and the exhibits attached to such rent roll any and all amendments or modifications thereof or side letters with respect thereto (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each Lease"Leases"); (ii) there are no prior assignments the type of property leased thereunder, and with respect to Leases for real property, the approximate size of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rentspremises leased thereunder; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender andterm thereunder, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereofincluding any extension options; (iv) with respect to Borrower’s best knowledgeLeases for real property, each Lease is in full force the use of such premises and effectthe nature of any improvements located thereon; and (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in recording information of any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth Leases which have been recorded in the Leasesapplicable real estate records offices. With respect to any Leases for real property under which any Sellers have a leasehold interest or other contractual rights, the Tenant Estoppels or on the Rent Rollsuch Person has good and valid leasehold title, there are no offsets or defenses to the payment free and clear of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, Encumbrances except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesPermitted Exceptions.
Appears in 1 contract
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules The Mortgagor shall (a) fulfill, perform and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete observe each and correct every condition and the Property is not subject to any Leases other than the Leases described covenant of landlord or lessor contained in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions each of the Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlord’s interest under each LeaseLeases; (iib) there are no prior assignments give prompt notice to CoBank of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in claim of default or notice of any Lease event or any portion condition which, with notice or passage of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender time or made available to Lender andboth, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in would constitute a default under any of the material termsLeases, covenants whether given by or provisions given to the Mortgagor, together with a complete copy of any notice expressing such claim; (c) at no cost or expense to CoBank, enforce, short of termination, the performance and observance of each and every condition and covenant of each of the Leaseparties under the Leases; (d) appear in and defend any action against any one or more of the Mortgagor, andCoBank, except as disclosed to Lender in writing and the Premises arising out of, or in any Tenant Estoppelsmanner connected with, Borrower knows any of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, or the Tenant Estoppels obligations or on the Rent Roll, there are no offsets or defenses to the payment liabilities of any portion of the Rentsparty thereto or any guarantor thereof; and (viie) furnish to Borrower’s best knowledgeCoBank upon demand copies of all Leases. The Mortgagor shall not, without the prior written consent of CoBank, (i) enter into new Leases, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except Leases for estimated payments a term of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more less than one (1) month in advance year (including renewals at the right of the due dates lessee) in connection with property not necessary to the operations of the Mortgagor; (ii) modify any Leases; (iii) terminate or accept the surrender of any Leases; (iv) waive or release any other party from the performance or observance of any obligation or condition under any Leases; (v) give any consent to any assignment or sublease by any Tenant under any of the Leases; (vi) permit the prepayment of any rents under any of the Leases for more than one month prior to the accrual thereof; or (vii) assign its interest in, to or under any Leases or the rents, issues and profits from the Leases or from the Premises to any person or entity other than CoBank, except as otherwise expressly permitted by CoBank in writing. The Mortgagor shall take no action which will cause or permit the estate of any Tenant under any of the Leases to merge with the interest of the Mortgagor in the Premises or any portion thereof. For purposes The Mortgagor shall and does hereby authorize and direct each and every present and future Tenant of all or any part of the preceding sentencePremises to pay all rent (and any other sums due the landlord under the Lease) to CoBank and to perform all other obligations of that Tenant xor the direct benefit of CoBank, as if CoBank were the term “landlord under the Lease with that Tenant, immediately upon receipt of a demand by CoBank to make such payment or perform such obligations, it being acknowledged that no such demand by CoBank shall constitute or be deemed to constitute any assumption by CoBank of any obligations of the landlord under such Lease” . No Tenant shall exclude subleaseshave any responsibility to ascertain whether such demand is permitted hereunder or whether a default shall have occurred. The Mortgagor hereby waives any right, claim or demand it may now or hereafter have against any such Tenant by reason of such payment of rent or other sums or performance of obligations to or for CoBank; and any such payment or performance to or for CoBank shall discharge the obligations of the Tenant to make such payment or performance to or for the Mortgagor.
Appears in 1 contract
Samples: Mortgage (Mercury Inc)
Leases. To Borrower’s best knowledge the rent roll attached hereto as Schedule 3 together with the schedules (a) All Leases and the exhibits attached to such rent roll all renewals, extensions, amendments, assignments and subleases and modifications (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and assignments or subleases expressly permitted under any existing subleases thereunder. To Borrower’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and Lease pursuant to the provisions a unilateral right of the Tenant thereunder not requiring the consent of Borrower) of Leases (and any existing subleases thereunder) or pursuant to the Ground Lease. As of executed after the date hereof shall (i) Borrower is the owner and holder of the landlord’s interest under each Lease; provide for economic terms, including rental rates, comparable to existing local market rates for similar properties, (ii) there are no prior assignments be on commercially reasonable terms, (iii) have a term of not less than three (3) years (unless Lender approves in writing a shorter term) and not more than fifteen (15) years, including extensions and renewals (unless Lender approves in writing a longer term), (iv) provide that such Lease is subordinate to the landlord’s interest by Borrower (Mortgage and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of that the Leases have been delivered by Borrower Tenant thereunder shall attorn to Lender or made available to Lender andand any purchaser at a foreclosure sale, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) be to Tenants that are creditworthy (or to Tenant’s whose obligations under the Lease are guaranteed by a creditworthy entity pursuant to (1) an absolute, unconditional and irrevocable lease guaranty or (2) a “good guy” guaranty, which such “good guy” guaranty shall be in a form that is customarily accepted by a prudent landlord for similar properties in midtown Manhattan), (vi) [intentionally omitted], (vii) not be to an Affiliate of Borrower, Guarantor or Affiliated Manager (if any), (viii) [intentionally omitted], (ix) comply with the terms of the Ground Lease, and (x) not contain any option to purchase, any right of first refusal to purchase, any right to terminate (except in the event of the destruction or condemnation of substantially all of the Property), or any other terms which would materially adversely affect Lender’s best knowledgerights under the Loan Documents. Further, except all Major Leases and all renewals, amendments and modifications thereof and waivers thereunder (other than assignments or subleases expressly permitted under any Major Lease pursuant to a unilateral right of the Tenant thereunder not requiring the consent of Borrower) executed after the date hereof shall be subject to Lender’s prior written approval. Lender shall execute and deliver its standard form of subordination, non-disturbance and attornment agreement to Tenants under any future Major Lease approved by Lender promptly upon request, with such commercially reasonable changes as disclosed on the Rent Roll or in any tenant estoppels delivered may be requested by such Tenants, and which are reasonably acceptable to Lender Lender. Borrower shall pay Lender’s reasonable out-of-pocket costs and expenses in connection with the Loan (collectivelyany such subordination, the “Tenant Estoppels”)non-disturbance and attornment agreement, neither Borrower norincluding, to Borrower’s knowledgewithout limitation, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; reasonable legal fees and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of the due dates thereof. For purposes of the preceding sentence, the term “Lease” shall exclude subleasesexpenses.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital New York City REIT, Inc.)
Leases. To Borrower’s best knowledge The Mortgagor shall, at its own cost and expense, perform, comply with and discharge all of the rent roll attached hereto as Schedule 3 together obligations of the Mortgagor under all leases and agreements for the use of the Mortgaged Property and use reasonable efforts to enforce or secure the performance of each obligation and undertaking of the respective tenants under such leases and shall appear in and defend, at its own cost and expense, any action or proceeding arising out of or in any manner connected with the schedules and the exhibits attached to such rent roll (collectively, the “Rent Roll”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll and those additional Leases (if any) on Schedule 2 attached hereto and any existing subleases thereunder. To BorrowerMortgagor’s best knowledge no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions any leases of the Leases (and Mortgaged Property. The Mortgagor shall permit no surrender nor assignment of any existing subleases thereunder) or pursuant to the Ground Lease. As of the date hereof (i) Borrower is the owner and holder of the landlordtenant’s interest under each Lease; (ii) there are no prior assignments said leases unless the right to assign or surrender is expressly reserved under the lease, nor receive any installment of the landlord’s interest by Borrower (and to Borrower’s knowledge any prior landlord) in any Lease or any portion of Rents which are presently outstanding and have priority over the Assignment of Leases and Rents; (iii) true and correct copies of the Leases have been delivered by Borrower to Lender or made available to Lender and, to Borrower’s knowledge, the Leases have not been further modified or amended, except as disclosed to Lender in writing on or prior to the date hereof; (iv) to Borrower’s best knowledge, each Lease is in full force and effect; (v) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any tenant estoppels delivered to Lender in connection with the Loan (collectively, the “Tenant Estoppels”), neither Borrower nor, to Borrower’s knowledge, any tenant under any Lease is in default under any of the material terms, covenants or provisions of the Lease, and, except as disclosed to Lender in writing or in any Tenant Estoppels, Borrower knows of no event which, but rent for the passage of time or the giving of notice or both, would constitute an event of default under any Lease; (vi) to Borrower’s best knowledge, except as expressly set forth in the Leases, the Tenant Estoppels or on the Rent Roll, there are no offsets or defenses to the payment of any portion of the Rents; and (vii) to Borrower’s best knowledge, except as disclosed on the Rent Roll or in any Tenant Estoppel, all Rents due and payable under each Lease have been paid in full and, except for estimated payments of operating expenses and taxes made by tenants in accordance with their Leases, no Rents have been paid more than one (1) month in advance of its due date unless otherwise required pursuant to the due dates thereof. For purposes terms of the preceding sentenceapplicable lease, nor execute any mortgage or create or permit a lien which may be or become superior to any such leases, nor permit a subordination of any lease to such mortgage or lien. The Mortgagor shall not materially modify or amend the terms of any such leases, nor borrow against or pledge the rentals from such leases, nor exercise or waive any default of the tenant thereunder without the prior consent of the Mortgagee. The Mortgagor agrees to obtain the Mortgagee’s prior written approval before entering into any lease with a term of five (5) years or more. Should the Mortgagor fail to perform, comply with or discharge any material obligations of the Mortgagor under any lease or should the Mortgagee become aware of or be notified by any tenant under any lease of a material failure on the part of the Mortgagor to so perform, comply with or discharge its obligations under said lease, the term “Lease” Mortgagee may, but shall exclude subleasesnot be obligated to, and without further demand upon or notice to the Mortgagor, and without waiving or releasing the Mortgagor from any obligation in this Mortgage contained, remedy such failure, and the Mortgagor agrees to repay upon demand all sums incurred by the Mortgagee in remedying any such failure together with interest at the Default Rate. All such sums, together with interest as aforesaid, shall become so much additional Secured Indebtedness, but no such advance shall be deemed to relieve the Mortgagor from any Event of Default hereunder.
Appears in 1 contract
Samples: Mortgage, (Highwater Ethanol LLC)
