Leasing Matters. Any Lease executed after the date hereof (and any amendment or termination thereof) shall require the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) provide for rental rates comparable to existing local market rates, contain reasonable market rate terms and do not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (a) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (b) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Lease; (c) shall not collect any of the Rents more than one (1) month in advance (other than security deposits required pursuant to such Lease); (d) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to the Loan Documents); (e) shall not alter, modify or change the terms of the Leases; and (f) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender.
Appears in 8 contracts
Samples: Loan Agreement (FTE Networks, Inc.), Loan Agreement (FTE Networks, Inc.), Loan Agreement (FTE Networks, Inc.)
Leasing Matters. Any (a) Borrower may enter into a proposed Lease executed after (including the date hereof renewal or extension of an existing Lease (and any amendment or termination thereofa “Renewal Lease”)) shall require without the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all provided such proposed Leases so long as the same Lease or Renewal Lease (ai) provide provides for rental rates and terms comparable to existing local market ratesrates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, contain reasonable market rate terms and do not contain any terms which would materially adversely affect Lender’s rights under in the Loan Documentscase of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (bii) are for is an arm’s-length transaction with a lease term not exceeding one yearbona fide, including all extensionsindependent third party tenant or with a Taxable REIT Subsidiary of Sponsor, (ciii) are with individualdoes not have a materially adverse effect on the value of the Property taken as a whole, residential, non-commercial tenants, (iv) is subject and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument Mortgage and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender Lender, either by the terms of such Renewal Lease or pursuant to a subordination, non-disturbance and attornment agreement on Lender’s then current form (v) does not contain any option, offer, right of first refusal, or other similar right to acquire all or any other purchaser portion of the Property, (vi) has a base term of less than fifteen (15) years including options to renew, (vii) has no rent credits, free rents or concessions granted thereunder, other than as consistent with then market standards for prudent institutional owners of Class A office buildings in the sub-market where the Property is located, and (viii) is written on the standard form of lease approved by Lender and attached hereto as Exhibit C, subject to tenant specific negotiated changes which do not, individually or in the aggregate, cause a Material Adverse Change with respect to the Property or the financial condition of Borrower. All proposed Leases which do not satisfy the requirements set forth in this subsection shall be at a sale by foreclosure (Borrower’s expense and subject to the prior approval of Lender and its counsel, such consent not to be unreasonably withheld or deed in lieu thereof) or power of saledelayed. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this subsection together with Borrower’s certification that it has satisfied all of the conditions of this Section.
(ab) Borrower (i) shall observe and perform in all material respects all the obligations imposed upon the lessor landlord under the Leases (or refrain from such observance or performance to the extent the same is in a commercially reasonable manneraccordance with prudent institutional ownership practices for properties similar to and in the same sub-market as Property) and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (bii) shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed unless Borrower, in a commercially reasonable manner accordance with prudent institutional ownership practices for properties similar and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect same sub-market as the Property; provided, howeverelects not to enforce any such term, that no such termination covenant or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leasecondition; (civ) shall not collect any of the Rents more than one (1) month in advance (other than except security deposits required pursuant to such Leaseshall not be deemed Rents collected in advance); (dv) shall not execute any other assignment of the lessorlandlord’s interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender, such consent not to be unreasonably withheld, conditioned or delayed.
(c) Borrower may, without the prior written consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce Rents under, accept a surrender of space under, or shorten the term of, any Lease (except including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Agreement and any subordination agreement binding upon Lender with respect to such Lease or provided that such action is reasonably required to maintain Sponsor’s status as a REIT. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this subsection shall be subject to the prior approval of Lender and its counsel, at Borrower’s expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this subsection together with Borrower’s certification that it has satisfied all of the Loan Documentsconditions of this subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend in any material respect, modify in any material respect, waive any material provisions of, terminate, reduce Rents under, accept a surrender of space under, or shorten the term of any Major Lease (except, as to termination, reduction or acceptance of surrender, in accordance with the express terms of the Lease); .
(e) shall not alterNotwithstanding anything to the contrary contained herein, modify or change to the terms of the Leases; and (f) shall execute and deliver at the request of Lender all such further assurancesextent Lender’s prior approval is required for any leasing matters set forth in this Section 5.13, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have the right ten (10) Business Days from receipt of written request and all required information and documentation relating thereto in which to require each new Tenant to execute and deliver approve or disapprove such matter, provided that such request to Lender a subordinationis marked in capitalized bold lettering with the following language: “LENDER’S RESPONSE IS REQUIRED WITHIN TEN (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 request must be marked “PRIORITY- LENDER’S RESPONSE REQUIRED IN TEN (10) BUSINESS DAYS”. In the event that Lender fails to respond to the leasing matter in question within such time, non-disturbance of possession Lender’s approval shall be deemed given for all purposes. Borrower shall provide Lender with such information and attornment agreement in formdocumentation as may be reasonably required by Lender, content including, without limitation, lease comparables and manner of execution reasonably acceptable to other market information as required by Lender.
Appears in 6 contracts
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Leasing Matters. Any Lease Major Leases with respect to any Property executed after the date hereof (and shall be subject to Lender’s approval, which approval shall not be unreasonably withheld, conditioned or delayed, provided, however, that renewals of any amendment or termination thereof) Major Lease by Mortgage Borrowers initially executed prior to the Closing Date shall not require the prior written consent approval of LenderLender if the terms of any such Lease provided for renewals at a reasonably determinable rent. Upon request, which consent Borrowers shall be in Lender’s sole and absolute discretion. Borrower furnish, or shall furnish cause Mortgage Borrowers to furnish, Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender All proposed Major Leases shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) provide for rental rates comparable to existing local market rates, contain on commercially reasonable market rate terms and do not no Lease shall contain any terms which would materially adversely affect Lender’s rights under the Loan Documents or Mortgage Lender’s rights under the Mortgage Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof Closing Date shall provide that they are subordinate to the Security Instrument and the Liens created thereby Mortgage and that the Tenant thereunder lessee agrees to attorn to Mortgage Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale, provided that, with respect to Major Leases and except with respect to the HRHI Lease, Mortgage Lender provides commercially reasonable non-disturbance language. Borrower Borrowers shall cause Mortgage Borrowers to (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the any Property involved, provided except that in no event shall termination by any Mortgage Borrower terminate or accept the acceptance of surrender by a tenant of any Major Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect (including, without limitation, the Property; provided, however, that no such termination or surrender of any Lease HRHI Lease) will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Mortgage Loan Documents); and (ev) shall not alter, modify or change the terms of (A) the Leases; and HRHI Lease other than any ministerial, non-monetary amendment or modification, or (fB) any other Major Lease in any material manner, in each of the foregoing instances, without the prior written approval of Lender, not to be unreasonably withheld. To the extent Lender’s approval is required pursuant to this Section 5.1.20, Lender shall execute and deliver at the endeavor to respond to a request of Lender all such further assurancesfor Lender’s approval within ten (10) Business Days after Borrowers’ written request therefor, confirmations and assignments delivered together with any documents or information required to be provided by Borrowers hereunder in connection with Lender’s review of the Leases as proposed Major Lease, Major Lease amendment or Major Lease termination. If the correspondence from Borrowers requesting such approval contains the following statement at the top of the first page thereof in capitalized, boldfaced, 14 point type lettering: “IF YOU FAIL TO RESPOND TO OR TO EXPRESSLY DENY THIS REQUEST FOR APPROVAL IN WRITING WITHIN TEN (10) BUSINESS DAYS, YOUR APPROVAL SHALL BE DEEMED GIVEN”, and if Lender shall from time fail to time respond to or to expressly deny such request for approval in writing (stating in reasonable detail the reason for such disapproval) within ten (10) Business Days after receipt of Borrowers’ written request therefor together with the documents and information required above and any other information reasonably require. requested by Lender in writing prior to the expiration of such ten (10) Business Day period in order to adequately review the same, then Borrowers shall have the right to require each new Tenant to execute re-submit such proposed Major Lease, Major Lease amendment or Major Lease termination and deliver accompanying information to Lender with a subordinationrequest for approval containing the following statement at the top of the first page thereof in capitalized, non-disturbance boldfaced, 14 point type lettering: “IF YOU FAIL TO RESPOND TO OR TO EXPRESSLY DENY THIS REQUEST FOR APPROVAL IN WRITING WITHIN FIVE (5) BUSINESS DAYS, YOUR APPROVAL SHALL BE DEEMED GIVEN”, and if Lender does not respond to such second request by approving such proposed Major Lease, Major Lease amendment or Major Lease termination or stating its objection thereto within five (5) Business Days of possession and attornment agreement in formLender’s receipt of such second submission, content and manner Lender’s approval shall be deemed given. Notwithstanding anything to the contrary contained herein, Borrowers shall not permit or cause Mortgage Borrowers to enter into a lease of execution reasonably acceptable to all or substantially all of any Property without Lender’s prior consent.
Appears in 6 contracts
Samples: Third Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC), Second Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC), Mezzanine Loan Agreement (Morgans Hotel Group Co.)
Leasing Matters. Any Lease executed Leases with respect to the Property written after the date hereof (and any amendment or termination thereof) Closing Date for more than the Relevant Leasing Threshold square footage shall require be subject to the prior written consent approval of Lender, which consent approval may be given or withheld in the sole discretion of Lender. Lender shall approve or disapprove any such Lease, other than a Lease for all or substantially all of the Property which shall not be subject to such ten business-day period, within ten (10) Business Days of Lender’s receipt of a final execution draft of such Lease (including all exhibits, schedules, supplements, addenda or other agreements relating thereto) and a written notice from Borrower requesting Lender’s approval to such Lease, and such Lease shall be deemed approved, if Lender does not disapprove such Lease within said ten (10) Business Day period provided such written notice conspicuously states, in Lender’s sole and absolute discretionlarge bold type, that “PURSUANT TO SECTION 5.1.20 OF THE LOAN AGREEMENT, THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN TEN (10) BUSINESS DAYS OF LENDER’S RECEIPT OF SUCH LEASE AND WRITTEN NOTICE”. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain rates (unless such rental rates are otherwise set forth in the Leases executed prior to the Closing Date). All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof Closing Date shall provide that they are subordinate to the Security Instrument and Mortgage encumbering the Liens created thereby Property and that the Tenant tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided involved except that in no event shall termination by Borrower terminate or accept the acceptance of surrender by a tenant of any Lease by a Tenant shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; Property provided, however, that no such termination or surrender of any Lease covering more than the Relevant Leasing Threshold will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for which consent may be withheld in the Leasesole discretion of Lender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents without the prior written consent of Lender, which consent may be withheld in the sole discretion of Lender; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments assignment in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have Notwithstanding the foregoing, Borrower may, without the prior written consent of Lender, terminate any Lease which demises less than the Relevant Leasing Threshold under any of the following circumstances: (i) the tenant under said Lease is in default beyond any applicable grace and cure period, and Borrower has the right to require each new terminate such Lease; (ii) such termination is permitted by the terms of the Lease in question and Borrower has secured an obligation from a third party to lease the space under the Lease to be terminated at a rental equal to or higher than the rental due under the Lease to be terminated; and (iii) if the tenant under the Lease to be terminated, has executed a right under said Lease to terminate its lease upon payment of a termination fee to Borrower, and has in fact terminated its lease and paid said fee, Borrower may accept said termination. In addition, the requirements set forth in this Section 5.1.20 shall not apply to any sublease by Anchor Tenant pursuant to execute and deliver to Lender a subordination, non-disturbance the relevant provisions of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lenderthe Anchor Tenant Lease.
Appears in 6 contracts
Samples: Loan Agreement (Inland American Real Estate Trust, Inc.), Loan Agreement (Inland American Real Estate Trust, Inc.), Loan Agreement (Inland American Real Estate Trust, Inc.)
Leasing Matters. Any (a) Borrower shall be permitted to cause Mortgage Borrower or Operating Lessee to enter into a proposed Lease executed after (including the date hereof renewal or extension of an existing Lease (and any amendment or termination thereofa “Renewal Lease”)) shall require that is not a Major Lease without the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all provided such proposed Leases so long as the same Lease or Renewal Lease (ai) provide provides for rental rates and terms comparable to existing local market ratesrates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Mortgage Borrower or Operating Lessee (unless, contain reasonable market rate terms and do in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arm’s-length transaction with a bona fide, independent third party tenant, (iii) does not contain any terms which would materially adversely affect Lender’s rights under the Loan Documentsreasonably be expected to have or do have a Material Adverse Effect, (biv) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, is subject and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument Mortgages and the Liens created thereby and that the Tenant thereunder agrees to attorn to Mortgage Lender and any purchaser at a foreclosure sale and (v) does not contain any option, offer, right of first refusal, right of first offer or other similar right to acquire all or any portion of any Individual Property. Each Major Lease and all other purchaser proposed Leases which do not satisfy the requirements set forth in this subsection, unless Manager has the right to enter into such Lease without Mortgage Borrower’s or Operating Lessee’s prior written consent pursuant to the Management Agreement (each a “Required Approval Lease”) shall be subject to the prior approval of Lender. Borrower shall cause Mortgage Borrower to promptly deliver to Lender copies of all Leases which are entered into pursuant to this subsection together with Borrower’s certification that Mortgage Borrower or Operating Lessee has satisfied all of the Property at a sale by foreclosure (or deed in lieu thereof) or power conditions of salethis Section. Borrower shall pay the costs and expenses associated with Lender’s counsel review of any Lease for which Lender’s consent may be required under this Section 5.13.
(ab) Except as provided in clause (c) below, Borrower shall cause Mortgage Borrower to, or cause Operating Lessee to, if applicable, (i) observe and perform all the obligations imposed upon the lessor landlord under the Leases in a commercially reasonable mannerall material respects and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (bii) promptly send copies to Lender of all notices of material default which Mortgage Borrower or Operating Lessee shall send or receive under a Major Lease; (iii) enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leaseperformed; (civ) shall not collect any of the Rents more than one (1) month in advance (other than except security deposits required pursuant to such Leaseshall not be deemed Rents collected in advance); (dv) shall hold all security deposits in accordance with the terms of the applicable Lease and Legal Requirements; (vi) not execute any other assignment of the lessorlandlord’s interest in any of the Leases or the Rents except as contemplated by the Mortgage Loan Documents; and (except vi) not consent to any assignment of or subletting under any Major Leases not in accordance with their terms, without the prior written consent of Lender, such consent not to be unreasonably withheld, conditioned or delayed.
(c) Borrower shall be permitted to cause Mortgage Borrower and/or Operating Lessee to, without the prior written consent of Lender, amend, modify or waive the provisions of or terminate, reduce Rents or accept a surrender of space under, or shorten the term of, any Lease which is not a Major Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that (i) such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) is not reasonably expected to have and does not have a Material Adverse Effect, and (ii) such amendment, modification, waiver, termination, rent reduction, space surrender or term shortening, is otherwise in compliance with the requirements of this Agreement and the Mortgage Loan Agreement and any subordination agreement binding upon Mortgage Lender with respect to such Lease. A termination of a Lease with a tenant who is in monetary default beyond applicable notice and grace periods shall not be considered an action which has a Material Adverse Effect. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this subsection shall be subject to the prior written approval of Lender (not to be unreasonably withheld or delayed) (each, a “Lease Modification”), at Borrower’s expense. Borrower shall, or shall cause Mortgage Borrower to, promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this subsection together with Borrower’s certification that it and Mortgage Borrower have satisfied all of the conditions of this subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not and shall not permit Mortgage Borrower or Operating Lessee to, without the prior written consent of Lender, such consent not to be unreasonably withheld, conditioned or delayed, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a surrender of space under, or shorten the term of any Major Lease; provided, however, Borrower and/or Operating Lessee may terminate a Major Lease with a tenant who is in default beyond applicable notice and grace periods without the prior written approval of Lender.
(e) Each request by Borrower for approval and consent by Lender pursuant to this Section 5.13 shall be in writing and contain a legend in capitalized bold letters on the Loan Documents); (e) shall not alter, modify or change the terms top of the Leases; cover page stating: “LENDER’S RESPONSE IS REQUESTED WITHIN TEN (10) BUSINESS DAYS. LENDER’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD SHALL RESULT IN LENDER’S CONSENT BEING DEEMED TO HAVE BEEN GRANTED” and Borrower shall include the following documentation with such request all materials reasonably necessary in order for Lender to evaluate such matter. In the event that Lender fails to grant or withhold its approval and consent to such matter within such ten (f10) Business Day period (and, in the case of a withholding of consent, stating the grounds therefor in reasonable detail), then, so long as no Event of Default is continuing, Lender’s approval and consent shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments be deemed to have been granted. There shall be no administrative or approval fee in connection with the Leases as Lender this Section 5.13(e), but Borrower shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute pay any out-of-pocket costs and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to expenses incurred by Lender.
Appears in 6 contracts
Samples: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Leasing Matters. Any Major Lease executed with respect to any of the Property written after the date hereof (and any amendment or termination thereof) shall require be subject to the prior written consent approval of Lender. So long as no Event of Default is continuing, which consent any Minor Lease with respect to any of the Property written after the date hereof shall not be subject to the prior written approval of Lender if it shall be written substantially in accordance with a standard lease form approved by Lender and shall satisfy the other requirements hereof. All Leases shall be on commercially reasonable terms, shall not contain any terms which would materially affect Lender’s sole rights under the Loan Documents and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) provide for rental rates comparable to existing local market rates, contain reasonable market rate terms and do not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Major Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Notwithstanding anything to the contrary contained herein, all Leases with Tenants that are Affiliates of Borrower shall be subject to the prior written consent of Lender. Upon request, Borrower shall furnish Lender with executed copies of all Leases. Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided involved except that in no event shall termination by Borrower terminate or accept the acceptance of surrender of any Lease by a Tenant of any Leases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Major Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender.
Appears in 6 contracts
Samples: Commercial Loan Agreement (Red Oak Capital Fund V, LLC), Commercial Loan Agreement (Red Oak Capital Fund V, LLC), Commercial Loan Agreement (Red Oak Capital Fund IV, LLC)
Leasing Matters. Any (a) Borrower or Operating Lessee may enter into a proposed Lease executed after (including the date hereof renewal or extension of an existing Lease (and any amendment or termination thereofa “Renewal Lease”)) shall require that is not a Major Lease without the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all provided such proposed Leases so long as the same Lease or Renewal Lease (ai) provide provides for rental rates and terms comparable to existing local market ratesrates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower or Operating Lessee (unless, contain reasonable market rate terms and do in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arm’s-length transaction with a bona fide, independent third party tenant, (iii) does not contain any terms which would materially adversely affect Lender’s rights under the Loan Documentsreasonably be expected to have or do have a Material Adverse Effect, (biv) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, is subject and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument Mortgages and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender and any purchaser at a foreclosure sale and (v) does not contain any option, offer, right of first refusal, right of first offer or other similar right to acquire all or any portion of any Individual Property. Each Major Lease and all other purchaser proposed Leases which do not satisfy the requirements set forth in this subsection, unless Manager has the right to enter into such Lease without Borrower’s or Operating Lessee’s prior written consent pursuant to the Management Agreement (each a “Required Approval Lease”) shall be subject to the prior approval of Lender. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this subsection together with Borrower’s certification that it or Operating Lessee has satisfied all of the Property at a sale by foreclosure (or deed in lieu thereof) or power conditions of salethis Section. Borrower shall pay the costs and expenses associated with Lender’s counsel review of any Lease for which Lender’s consent may be required under this Section 5.13.
(ab) Except as provided in clause (c) below, Borrower shall (i) observe and perform all the obligations imposed upon the lessor landlord under the Leases in a commercially reasonable mannerall material respects and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (bii) promptly send copies to Lender of all notices of material default which Borrower or Operating Lessee shall send or receive under a Major Lease; (iii) enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leaseperformed; (civ) shall not collect any of the Rents more than one (1) month in advance (other than except security deposits required pursuant to such Leaseshall not be deemed Rents collected in advance); (dv) shall hold all security deposits in accordance with the terms of the applicable Lease and Legal Requirements; (vi) not execute any other assignment of the lessorlandlord’s interest in any of the Leases or the Rents except as contemplated by the Loan Documents; and (except vi) not consent to any assignment of or subletting under any Major Leases not in accordance with their terms, without the prior written consent of Lender, such consent not to be unreasonably withheld, conditioned or delayed.
(c) Borrower and/or Operating Lessee may, without the prior written consent of Lender, amend, modify or waive the provisions of or terminate, reduce Rents or accept a surrender of space under, or shorten the term of, any Lease which is not a Major Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that (i) such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) is not reasonably expected to have and does not have a Material Adverse Effect, and (ii) such amendment, modification, waiver, termination, rent reduction, space surrender or term shortening, is otherwise in compliance with the requirements of this Agreement and any subordination agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in monetary default beyond applicable notice and grace periods shall not be considered an action which has a Material Adverse Effect. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this subsection shall be subject to the prior written approval of Lender (not to be unreasonably withheld or delayed) (each, a “Lease Modification”), at Borrower’s expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this subsection together with Borrower’s certification that it has satisfied all of the conditions of this subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower and Operating Lessee shall not, without the prior written consent of Lender, such consent not to be unreasonably withheld, conditioned or delayed, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a surrender of space under, or shorten the term of any Major Lease; provided, however, Borrower and/or Operating Lessee may terminate a Major Lease with a tenant who is in default beyond applicable notice and grace periods without the prior written approval of Lender.
(e) Each request by Borrower for approval and consent by Lender pursuant to this Section 5.13 shall be in writing and contain a legend in capitalized bold letters on the Loan Documents); (e) shall not alter, modify or change the terms top of the Leases; cover page stating: “LENDER’S RESPONSE IS REQUESTED WITHIN TEN (10) BUSINESS DAYS. LENDER’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD SHALL RESULT IN LENDER’S CONSENT BEING DEEMED TO HAVE BEEN GRANTED” and Borrower shall include the following documentation with such request all materials reasonably necessary in order for Lender to evaluate such matter. In the event that Lender fails to grant or withhold its approval and consent to such matter within such ten (f10) Business Day period (and, in the case of a withholding of consent, stating the grounds therefor in reasonable detail), then, so long as no Event of Default is continuing, Lender’s approval and consent shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments be deemed to have been granted. There shall be no administrative or approval fee in connection with the Leases as Lender this Section 5.13(e), but Borrower shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute pay any out-of-pocket costs and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to expenses incurred by Lender.
Appears in 5 contracts
Samples: Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)
Leasing Matters. Any Lease executed Leases with respect to an Individual --------------- Property written after the date hereof (and any amendment or termination thereof) shall require the prior written consent of be approved by Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld, conditioned or delayed. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain subject to the existing Leases. All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s 's rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and Mortgage encumbering the Liens created thereby applicable Individual Property and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower If Lender shall approve any Lease covering an entire Individual Property, Lender shall, at the request of Borrower, enter into an Estoppel Certificate, Subordination, Nondisturbance and Attornment Agreement in the form attached as Schedule III hereunder with the tenant thereunder. ------------ Borrower
(a) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (b) shall enforce the termsnot amend or modify in any material respect, covenants and conditions contained in the Leases upon the part of the Tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involvedterminate, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (c) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (d) shall not execute any other assignment of the lessor’s 's interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (e) shall not alter, modify or change the terms of the Leases; and (fv) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have use good faith efforts to respond to any request for approval hereunder within fifteen (15) days of receipt thereof. For the right purpose of this section, without limiting the generality of the foregoing, any extension of the term of a Lease that does not reduce the rent payable thereunder shall be deemed not to require each new Tenant be material and any amendment or modification of a Lease that reduces the term of a Lease or the rent payable thereunder shall be deemed to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lenderbe material.
Appears in 4 contracts
Samples: Loan Agreement (Capital Automotive Reit), Loan Agreement (Capital Automotive Reit), Loan Agreement (Capital Automotive Reit)
Leasing Matters. Any (a) Borrower shall be permitted to cause Senior Mezzanine Borrower to cause Mortgage Borrower or Operating Lessee to enter into a proposed Lease executed after (including the date hereof renewal or extension of an existing Lease (and any amendment or termination thereofa “Renewal Lease”)) shall require that is not a Major Lease without the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all provided such proposed Leases so long as the same Lease or Renewal Lease (ai) provide provides for rental rates and terms comparable to existing local market ratesrates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Mortgage Borrower or Operating Lessee (unless, contain reasonable market rate terms and do in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arm’s length transaction with a bona fide, independent third party tenant, (iii) does not contain any terms which would materially adversely affect Lender’s rights under the Loan Documentsreasonably be expected to have or do have a Material Adverse Effect, (biv) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, is subject and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument Mortgages and the Liens created thereby and that the Tenant thereunder agrees to attorn to Mortgage Lender and any purchaser at a foreclosure sale and (v) does not contain any option, offer, right of first refusal, right of first offer or other similar right to acquire all or any portion of any Individual Property. Each Major Lease and all other purchaser proposed Leases which do not satisfy the requirements set forth in this subsection, unless Manager has the right to enter into such Lease without Mortgage Borrower’s or Operating Lessee’s prior written consent pursuant to the Management Agreement (each a “Required Approval Lease”) shall be subject to the prior approval of Lender. Borrower shall cause Senior Mezzanine Borrower to cause Mortgage Borrower to promptly deliver to Lender copies of all Leases which are entered into pursuant to this subsection together with Borrower’s certification that Mortgage Borrower or Operating Lessee has satisfied all of the Property at a sale by foreclosure (or deed in lieu thereof) or power conditions of salethis Section. Borrower shall pay the costs and expenses associated with Lender’s counsel review of any Lease for which Lender’s consent may be required under this Section 5.13.
(ab) Except as provided in clause (c) below, Borrower shall cause Senior Mezzanine Borrower to cause Mortgage Borrower to, or cause Operating Lessee to, if applicable, (i) observe and perform all the obligations imposed upon the lessor landlord under the Leases in a commercially reasonable mannerall material respects and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (bii) promptly send copies to Lender of all notices of material default which Mortgage Borrower or Operating Lessee shall send or receive under a Major Lease; (iii) enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leaseperformed; (civ) shall not collect any of the Rents more than one (1) month in advance (other than except security deposits required pursuant to such Leaseshall not be deemed Rents collected in advance); (dv) shall hold all security deposits in accordance with the terms of the applicable Lease and Legal Requirements; (vi) not execute any other assignment of the lessorlandlord’s interest in any of the Leases or the Rents except as contemplated by the Mortgage Loan Documents; and (except vi) not consent to any assignment of or subletting under any Major Leases not in accordance with their terms, without the prior written consent of Lender, such consent not to be unreasonably withheld, conditioned or delayed.
(c) Borrower shall be permitted to cause Senior Mezzanine Borrower to cause Mortgage Borrower and/or Operating Lessee to, without the prior written consent of Lender, amend, modify or waive the provisions of or terminate, reduce Rents or accept a surrender of space under, or shorten the term of, any Lease which is not a Major Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that (i) such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) is not reasonably expected to have and does not have a Material Adverse Effect, and (ii) such amendment, modification, waiver, termination, rent reduction, space surrender or term shortening, is otherwise in compliance with the requirements of this Agreement, the Mortgage Loan Agreement, the Senior Mezzanine Loan Agreement and any subordination agreement binding upon Mortgage Lender with respect to such Lease. A termination of a Lease with a tenant who is in monetary default beyond applicable notice and grace periods shall not be considered an action which has a Material Adverse Effect. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this subsection shall be subject to the prior written approval of Lender (not to be unreasonably withheld or delayed) (each, a “Lease Modification”), at Borrower’s expense. Borrower shall, or shall cause Senior Mezzanine Borrower to cause Mortgage Borrower to, promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this subsection together with Borrower’s certification that it and Mortgage Borrower have satisfied all of the conditions of this subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not and shall not permit Senior Mezzanine Borrower to permit Mortgage Borrower or Operating Lessee to, without the prior written consent of Lender, such consent not to be unreasonably withheld, conditioned or delayed, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a surrender of space under, or shorten the term of any Major Lease; provided, however, Borrower and/or Operating Lessee may terminate a Major Lease with a tenant who is in default beyond applicable notice and grace periods without the prior written approval of Lender.
(e) Each request by Borrower for approval and consent by Lender pursuant to this Section 5.13 shall be in writing and contain a legend in capitalized bold letters on the Loan Documents); (e) shall not alter, modify or change the terms top of the Leases; cover page stating: “LENDER’S RESPONSE IS REQUESTED WITHIN TEN (10) BUSINESS DAYS. LENDER’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD SHALL RESULT IN LENDER’S CONSENT BEING DEEMED TO HAVE BEEN GRANTED” and Borrower shall include the following documentation with such request all materials reasonably necessary in order for Lender to evaluate such matter. In the event that Lender fails to grant or withhold its approval and consent to such matter within such ten (f10) Business Day period (and, in the case of a withholding of consent, stating the grounds therefor in reasonable detail), then, so long as no Event of Default is continuing, Lender’s approval and consent shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments be deemed to have been granted. There shall be no administrative or approval fee in connection with the Leases as Lender this Section 5.13(e), but Borrower shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute pay any out-of-pocket costs and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to expenses incurred by Lender.
Appears in 4 contracts
Samples: Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Leasing Matters. Any Lease executed Leases with respect to the Property written after the date hereof (and any amendment or termination thereof) Closing Date for more than the Relevant Leasing Threshold square footage shall require be subject to the prior written consent approval of Lender, which consent approval may be given or withheld in the sole discretion of Lender. Lender shall approve or disapprove any such Lease within ten (10) Business Days of Lender's receipt of a final execution draft of such Lease (including all exhibits, schedules, supplements, addenda or other agreements relating thereto) and a written notice from Borrower requesting Lender's approval to such Lease, and such Lease shall be deemed approved, if Lender does not disapprove such Lease within said ten (10) Business Day period PROVIDED such written notice conspicuously states, in Lender’s sole and absolute discretionlarge bold type, that "PURSUANT TO SECTION 5.1.20 OF THE LOAN AGREEMENT, THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN TEN (10) BUSINESS DAYS OF LENDER'S RECEIPT OF SUCH LEASE AND WRITTEN NOTICE". Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain rates (unless such rental rates are otherwise set forth in the Leases executed prior to the Closing Date). All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s 's rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof Closing Date shall provide that they are subordinate to the Security Instrument and Mortgage encumbering the Liens created thereby Property and that the Tenant tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided involved except that in no event shall termination by Borrower terminate or accept the acceptance of surrender by a tenant of any Lease by a Tenant shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; providedProperty PROVIDED, howeverHOWEVER, that no such termination or surrender of any Lease covering more than the Relevant Leasing Threshold will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for which consent may be withheld in the Leasesole discretion of Lender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s 's interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents without the prior written consent of Lender, which consent may be withheld in the sole discretion of Lender; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments assignment in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have Notwithstanding the foregoing, Borrower may, without the prior written consent of Lender, terminate any Lease which demises less than the Relevant Leasing Threshold under any of the following circumstances: (i) the tenant under said Lease is in default beyond any applicable grace and cure period, and Borrower has the right to require each new Tenant terminate such Lease; (ii) such termination is permitted by the terms of the Lease in question and Borrower has secured an obligation from a third party to execute lease the space under the Lease to be terminated at a rental equal to or higher than the rental due under the Lease to be terminated; and deliver (iii) if the tenant under the Lease to Lender be terminated, has executed a subordinationright under said Lease to terminate its lease upon payment of a termination fee to Borrower, non-disturbance of possession and attornment agreement has in formfact terminated its lease and paid said fee, content and manner of execution reasonably acceptable to LenderBorrower may accept said termination.
Appears in 4 contracts
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc), Loan Agreement (Inland Western Retail Real Estate Trust Inc), Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Leasing Matters. Any (a) Borrower shall not (and shall cause Mortgage Borrower and Guarantor (Operating Lease) not to), without the prior written consent of Lender (and, if a Securitization shall have occurred, Borrower shall have obtained and delivered to Lender a Rating Agency Confirmation) restate, materially modify, materially amend or materially supplement (or permit the restatement, material modification, amendment or supplement of) any Operating Lease or Operating Lease Guaranty (provided, that any modification, amendment or supplement affecting any of the economic terms of any Operating Lease or any of the terms of the Operating Lease Guaranty shall be deemed to be material for purposes hereof), terminate or accept the surrender (or permit the termination or surrender) of any Operating Lease or Operating Lease Guaranty, or release or materially waive (or permit the release or material waiver of) the Operating Company or Guarantor (Operating Lease) from the performance or observance of any obligation or condition under the Operating Leases or Operating Lease Guaranty. In connection with a material modification, Lender may request, and in such event, Borrower shall not effect such modification without, an Additional True Lease Opinion in form and substance reasonably satisfactory to Lender issued by Borrower’s counsel (at Borrower’s expense). Borrower shall not permit (or cause or permit Mortgage Borrower to permit) the prepayment of any rents under the Operating Leases for more than one (1) month prior to the due date thereof. Notwithstanding the foregoing, Lender’s consent shall not be required in connection with any modification, amendment or waiver of any provision of the Operating Lease as may be reasonably necessary to comply with the requirements of this Agreement or any other Loan Document or that makes the provisions of the Operating Lease consistent with the provisions of this Agreement or any other Loan Document. Notwithstanding anything contained in this Section 5.1.20
(a) to the contrary, (x) Lender’s consent to any amendment, modification or supplement of the Operating Lease (or any new Operating Lease) or the Operating Lease Guaranty may also be conditioned on the delivery by Borrower, upon the reasonable request of Lender, of an Additional Insolvency Opinion and/or an Additional True Lease Opinion acceptable to Lender (and, if a Securitization shall have occurred, acceptable to the Rating Agencies), and (y) Lender’s consent to any assignment of any Operating Lease or Operating Lease Guaranty (or of any interest therein) or any material amendment, material modification or material supplement of any Operating Lease shall also be conditioned on the delivery by Borrower, upon the reasonable request of Lender, of an Additional Insolvency Opinion and an Additional True Lease Opinion acceptable to Lender (and, if a Securitization shall have occurred, acceptable to the Rating Agencies).
(b) Borrower shall not permit (or consent to) an assignment by any Operating Company of any such Operating Company’s interest(s) under any Operating Lease or an assignment by any Mortgage Borrower of any such Mortgage Borrower’s interest(s) under any Operating Lease Guaranty without, in each case, Lender’s prior written consent (and, if a Securitization shall have occurred, at Lender’s request, without Borrower providing to Lender a Rating Agency Confirmation and an Additional True Lease Opinion).
(c) All space Leases and all renewals of space Leases executed after the date hereof entered into by Operating Company shall (and any amendment or termination thereof) shall require the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (ai) provide for rental rates rates, rent credits and free rent periods comparable to existing local market ratesrates for comparable properties, contain (ii) be on commercially reasonable market rate terms terms, (iii) provide that such Lease is subordinate to the Mortgage encumbering the Individual Property in question and do that the lessee will attorn to Mortgage Lender and any purchaser at a foreclosure sale; (iv) not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents; (v) not grant to the Tenants thereunder any option or right to purchase the applicable Individual Property (or any portion thereof); and (v) in the case of Major Leases, have initial terms less than twenty (b20) are for a lease term not exceeding one yearconsecutive years, including all extensions, in each case (c) are with individual, residential, non-commercial tenants, and unless otherwise consented to by Lender pursuant to clause (d) have been below).
(i) Any Major Lease entered into by Borrower in its ordinary course of business. All Leases Operating Company with respect to an Individual Property executed after the date hereof (and any renewal of any Major Lease with respect to an Individual Property), and any space Lease or space Lease renewal proposed to be entered into by Operating Company after the date hereof and that does not meet the criteria set forth in Sections 5.1.20(a) and subparagraph (c) above, shall provide that they are subordinate be subject to the Security Instrument prior written approval of Lender, which approval shall not be unreasonably withheld, conditioned or delayed. Borrower shall not terminate or accept the surrender of (and shall not permit Operating Company or Mortgage Borrower to terminate or accept the Liens created thereby surrender of) a Major Lease (unless by reason of a tenant default) without the consent of Lender.
(ii) Every submission to Lender of any proposed Major Lease (or Major Lease renewal, amendment, modification or termination) for Lender’s approval shall be forwarded to Lender together with a notice from Borrower (in bold typeface) that states “YOUR FAILURE TO RESPOND TO THIS NOTICE AND REQUEST FOR APPROVAL WITHIN TEN (10) BUSINESS DAYS OF YOUR RECEIPT OF THIS NOTICE SHALL CONSTITUTE YOUR DEEMED CONSENT TO THE MATTERS DESCRIBED IN OR THAT ARE THE SUBJECT OF THIS NOTICE”. If Lender responds to Borrower’s request by identifying missing documents or materials that are incomplete or inaccurate (and that are the Tenant thereunder agrees to attorn subject of the request for approval), then Borrower shall re-submit such documents or materials to Lender for its approval together with a second notice from Borrower that complies with this section.
(iii) If Lender fails to approve or disapprove any other purchaser such proposed request or submission attached to a first notice or request sent by Borrower (or the matters that are the subject of the Property at re-submitted notice or request for approval) within ten (10) Business Days of receipt of same, Borrower shall re-submit such instruments or materials to Lender for Lender’s approval and give Lender a sale by foreclosure second notice (in bold typeface) that states “SECOND NOTICE — YOUR FAILURE TO RESPOND TO THIS NOTICE AND REQUEST FOR APPROVAL WITHIN FIVE (5) BUSINESS DAYS OF YOUR RECEIPT OF THIS NOTICE SHALL CONSTITUTE YOUR DEEMED CONSENT TO THE MATTERS DESCRIBED IN OR THAT ARE THE SUBJECT OF THIS NOTICE”. If Lender fails to respond to such second notice within five (5) Business Days of receipt of same, then Lender’s consent to the proposed request or deed in lieu thereofsubmission that is the subject of such notice shall be deemed granted.
(e) or power of sale. Borrower shall and shall cause Mortgage Borrower and Operating Company to (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Individual Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Lease; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. .
(f) Upon request, Borrower shall furnish Lender with executed copies of all new Leases or Lease renewals or amendments.
(g) Notwithstanding anything to the contrary contained herein, Borrower shall have the right not enter into (or permit Operating Company or Mortgage Borrower to require each new Tenant to execute and deliver to Lender enter into) a subordination, non-disturbance lease of possession and attornment agreement in form, content and manner all or substantially all of execution reasonably acceptable to any Individual Property without Lender’s prior consent.
Appears in 3 contracts
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Leasing Matters. Any Lease Until such time as the Vacant Space is fully rented and occupied by tenants paying rent under New Vacant Space Leases approved by Lender, all Leases executed after the date hereof (hereof, and any amendment all modifications, renewals or termination thereof) terminations of existing Leases, shall require the prior written consent of be approved by Lender, which consent approval shall not be unreasonably withheld, conditioned or delayed. After all the Vacant Space has been so rented, any new Major Leases and any Lease modification or renewal that causes an existing Lease to become a Major Lease, shall be in approved by Lender’s sole and absolute discretion, which approval shall not be unreasonably withheld, conditioned or delayed. Borrower Upon request, Borrowers shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby Mortgage and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower Borrowers (a) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (b) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided Properties or any part thereof involved except that in no event shall termination by any Borrower terminate or accept the acceptance of surrender by a tenant of any Lease by a Tenant Leases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the PropertyProperties; provided, however, that until such time as the Vacant Space is fully rented and occupied by tenants paying Rent under New Vacant Space Leases approved by Lender, no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless Lender, and after all the Vacant Space is so rented, no such termination or surrender is specifically provided for in will be allowed with respect to any Major Lease without the Leaseconsent of Lender; (c) shall not collect any of the Rents or the Vacant Space Rent more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (d) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents or the Vacant Space Rent (except to Lender pursuant to as contemplated by the Loan Documents); (e) shall not alter, modify or change the terms of any Lease in a manner inconsistent with the Leasesprovisions of the Loan Documents nor alter, modify or change the terms of the Master Leases or any Major Lease, without the prior written consent of Lender; and (f) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender Notwithstanding anything to the contrary contained herein, no Borrower shall have enter into a lease of all or substantially all of either Property or the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Properties without Lender’s prior written consent.
Appears in 3 contracts
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Leasing Matters. Any Lease executed All commercial Leases with respect to the Property written after the date hereof (and any amendment or termination thereof) shall require be subject to the prior written consent approval of Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld, conditioned or delayed. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all commercial Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of commercial Leases and all proposed commercial Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed commercial Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All commercial Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower shall, or shall cause Master Tenant to, (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involvedinvolved except that no termination by Borrower or Master Tenant, provided that in no event shall Borrower terminate as the case may be, or accept the acceptance of surrender of any Lease by a Tenant of any Leases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of any commercial Lease in a manner inconsistent with the Leasesprovisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender Notwithstanding anything to the contrary contained herein, (i) neither Borrower nor Master Tenant shall have enter into a lease of all or substantially all of the right Property without Lender’s prior written consent, which may be granted or withheld in Lender’s sole discretion, and (ii) all new Leases and all amendments, modifications, extensions, and renewals of existing Leases with Tenants that are Affiliates of Borrower and/or Master Tenant shall be subject to require each new Tenant to execute and deliver to Lender a subordinationthe prior written consent of Lender, non-disturbance of possession and attornment agreement which may be granted in form, content and manner of execution reasonably acceptable to Lender’s sole discretion.
Appears in 3 contracts
Samples: Loan Agreement (Moody National REIT II, Inc.), Loan Agreement (Moody National REIT II, Inc.), Loan Agreement (Moody National REIT II, Inc.)
Leasing Matters. (a) Any Lease executed Leases with respect to the Property written after the date hereof (and any amendment or termination thereof) hereof, for more than 5,000 square feet shall require the prior written consent of be approved by Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld, including approval for the approximately 8,000 square feet of space intended to be leased to be used as a restaurant (the “Restaurant Lease”). Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially and adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and Mortgage encumbering the Liens created thereby Property and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower shall (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does is reasonably likely not to impair the value of the Property involved, provided that Property; (iii) not amend or modify any of the material provisions of any Lease in no event shall Borrower a manner reasonably likely to have a Material Adverse Effect; (iv) not terminate or accept the surrender of any Lease except that a termination by Borrower or Operating Lessee or acceptance of surrender by a Tenant unless tenant of any Leases shall be permitted by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or acceptance of surrender of any Lease covering more than 5,000 square feet will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (cv) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (dvi) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (evii) shall not alter, modify or change the terms of the Leases; and (f) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require; and (viii) and cause Operating Lessee to comply with clauses (i) through (vii) hereof. Notwithstanding anything to the contrary contained herein, neither Borrower nor Operating Lessee shall enter into a lease of all or substantially all of the Property without Lender’s prior written consent.
(b) With regard to any action described in this Section 5.1.20 for which Lender’s consent is required, Lender shall have not withhold its consent or disapproval to any such action for more than twenty (20) Business Days after request for approval thereof has been made by Borrower, accompanied by a detailed description of the right request for which approval is sought, provided that Borrower submits such request for Lender’s approval in an envelope labeled “Priority” and delivered to require each new Tenant Lender by overnight delivery and otherwise in accordance with the provisions of Section 10.6 and which request shall state at the top of the first page in bold lettering in 14 pt. font “LENDER’S RESPONSE IS REQUIRED WITHIN TWENTY (20) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER.” In the event that Lender fails to execute and either approve such request or disapprove such request (such disapproval stating the reasons for such disapproval) for more than twenty (20) Business Days after receipt thereof, Borrower shall deliver to Lender a subordinationsecond request, non-disturbance which second request shall contain the material transmitted with the first request, in an envelope labeled “Priority” and delivered to Lender by overnight delivery and otherwise in accordance with the provisions of possession Section 10.6 and attornment agreement which request shall state at the top of the first page in formbold lettering in 14 pt. font “SECOND REQUEST: LENDER’S RESPONSE IS REQUIRED WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER.” In the event that Lender fails to either approve such second request or disapprove such second request (such disapproval stating the reasons for such disapproval) for more than ten (10) Business Days after receipt thereof, content and manner the action that was the subject of execution reasonably acceptable to Lendersaid request shall be deemed approved.
Appears in 3 contracts
Samples: Loan Agreement (Innkeepers Usa Trust/Fl), Loan Agreement (Innkeepers Usa Trust/Fl), Loan Agreement (Innkeepers Usa Trust/Fl)
Leasing Matters. Any Lease executed Lender is authorized to foreclose this Security Instrument subject to the rights of any tenants of the Property, and the failure to make any such tenants parties defendant to any such foreclosure proceedings and to foreclose their rights will not be, nor be asserted by Borrower to be, a defense to any proceedings instituted by Lender to collect the sums secured hereby or to collect any deficiency remaining unpaid after the foreclosure sale of the Property. Unless otherwise agreed by Lender in writing, all leases and tenancies of the Property executed subsequent to the date hereof (and hereof, or any amendment or termination part thereof) shall require the prior written consent of Lender, which consent shall be in Lender’s sole subordinate and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) provide for rental rates comparable to existing local market rates, contain reasonable market rate terms and do not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate inferior to the lien of this Security Instrument Instrument, but superior to any other lien on the Property and shall contain an attornment provision pursuant to which the Liens created thereby and that the Tenant thereunder tenant agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (a) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (b) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Lease; (c) shall not collect any of the Rents more than one (1) month in advance (other than security deposits required pursuant to such Lease); (d) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to the Loan Documents); (e) shall not alter, modify or change the terms of the Leases; and (f) shall execute and deliver successful bidder at the request foreclosure sale of Lender all this Security Instrument at the option of such further assurancessuccessful bidder. Additionally, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably requireLender may execute and record among the land records of the jurisdiction where this Security Instrument is recorded, subordination statements with respect to such of said leases as Lender may designate, whereby the leases so designated by Lender will be made superior to the lien of this Security Instrument. Lender From and after the recordation of such subordination statements, the leases therein referred to shall have be superior to the lien of this Security Instrument. From and after the recordation of such subordination statements, the leases therein referred to shall be superior to the lien of this Security Instrument and shall not be affected by any foreclosure hereof. All such leases and tenancies shall contain a provision to the effect that the tenant recognizes the right of Lender to require each new Tenant effect such subordination of this Security Instrument and consents thereto. Further, all such leases and tenancies shall contain a provision obligating the tenant to execute and deliver attorn to the Lender or the successful bidder at a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lenderforeclosure sale following such foreclosure sale.
Appears in 3 contracts
Samples: Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing (TNP Strategic Retail Trust, Inc.), Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing (TNP Strategic Retail Trust, Inc.), Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing (TNP Strategic Retail Trust, Inc.)
Leasing Matters. Any Lease executed after Borrower shall have the date hereof (and any amendment or termination thereof) shall require right, without the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretionto cause Mortgage Borrower or Baltimore Owner enter into any Lease (other than a Material Lease). Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender All proposed Material Leases shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) provide for rental rates comparable to existing local market rates, contain on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents or Mortgage Lender’s rights under the Mortgage Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and Mortgage encumbering the Liens created thereby applicable Individual Property and that the Tenant thereunder lessee agrees to attorn to Mortgage Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower shall cause Mortgage Borrower and Baltimore Owner to (a) shall observe and perform the obligations imposed upon the lessor under the Material Leases in a commercially reasonable manner; (b) have the right, without the consent of Lender, to amend, modify, or waive the provisions of any Lease (other than a Material Lease except to the extent required pursuant to the terms of an existing Material Lease) or terminate, reduce rents under, accept the surrender of space under, or shorten the term of, any Lease (other than a Material Lease) or of any guaranty, letter of credit or other credit support with respect thereto, so long as such action does not have a material adverse affect on the value of the applicable Individual Property taken as a whole, provided, however, that a termination of a Lease (other than a Material Lease with a tenant who is in default beyond applicable notice and cure periods shall not be considered an action which has a material adverse affect on the value of the Individual Property taken as a whole and Lender is provided with a copy thereof; (c) enforce the terms, covenants and conditions contained in the Material Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Individual Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Lease; (cd) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (de) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Mortgage Loan Documents); (ef) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Mortgage Loan Documents; and (fg) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall not unreasonably withhold, condition or delay its consent with respect to the entering into, renewal, extension, amendment, modification, waiver of provisions of, termination, reduction of rents under, acceptance of a surrender of space or the shortening of the term of any Material Lease. Notwithstanding anything to the contrary contained herein, neither Mortgage Borrower nor Baltimore Owner shall enter into a lease of all or substantially all of any Individual Property without Lender’s prior consent, which consent may be withheld or conditioned in Lender’s sole discretion. To the extent Lender’s prior written approval is required pursuant to this Section 5.1.20, Lender shall have fifteen (15) days from receipt of written request and any and all reasonably required information and documentation relating thereto in which to approve or disapprove such request and such written request shall state thereon in bold letters of 14 point font or larger that action is required by Lender and Lender’s consent will be deemed given if there is no response by Lender. If Lender fails to approve or disapprove the right request within such fifteen (15) days, Lender’s approval shall be deemed given. Should Lender fail to require each new Tenant to execute approve any such request, Lender shall give Borrower written notice setting forth in reasonable detail the basis for such disapproval. Lender shall not unreasonably withhold, condition or delay approval of the execution of any subordination and deliver to Lender a subordination, non-disturbance of possession or similar recognition agreement requested by any tenant under a lease provided (i) Lender has approved such lease, which approval shall not be unreasonably withheld, conditioned or delayed, and attornment (ii) such agreement is in form, content scope and manner of execution substance reasonably acceptable to Lender.
Appears in 3 contracts
Samples: Mezzanine Loan Agreement (Wyndham International Inc), Mezzanine Loan Agreement (Wyndham International Inc), Mezzanine Loan Agreement (Wyndham International Inc)
Leasing Matters. Any (a) Borrower may permit Mortgage Loan Borrowers or Maryland Owner to enter into a proposed Lease executed after the date hereof (and including any amendment renewal or termination thereofextension of an existing Lease (a “Renewal Lease”)) shall require without the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all provided such proposed Leases so long as the same Lease or Renewal Lease (ai) provide provides for rental rates and terms comparable to existing local market ratesrates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Mortgage Loan Borrowers or Maryland Owner (unless, contain reasonable market rate terms and do not contain any terms which would materially adversely affect Lender’s rights under in the Loan Documentscase of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (bii) are for is an arm’s-length transaction with a lease term not exceeding one yearbona fide, including all extensionsindependent third party tenant, (ciii) are with individualdoes not have a materially adverse effect on the value of the related Individual Property taken as a whole, residential, non-commercial tenants, (iv) is subject and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument applicable Mortgage and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender (subject to Lender’s delivery of a non-disturbance agreement containing market terms and otherwise reasonably satisfactory to Lender), (v) does not contain any option, offer, right of first refusal, or other similar right to acquire all or any other purchaser portion of the Property related Individual Property, and (vi) has a base term of less than fifteen (15) years including options to renew. All proposed Leases which do not satisfy the requirements set forth in this subsection shall be subject to the prior approval of Lender and its counsel, at a sale by foreclosure (Borrower’s expense, which consent shall not be unreasonably withheld or deed in lieu thereof) or power of saledelayed. Borrower shall cause Mortgage Loan Borrowers and Maryland Owner to promptly deliver to Lender copies of all Leases which are entered into pursuant to this subsection together with Borrower’s certification that it has satisfied all of the conditions of this Section 5.13. Borrower covenants not to take or permit Mortgage Loan Borrowers or Maryland Owner to take any action with respect to an Individual Property that is reasonably likely to result, together with any other prior actions taken with respect to such Individual Property, in a change in the use or nature of such Individual Property from that of a hotel.
(ab) Borrower (i) shall not and shall cause each Mortgage Loan Borrower or Maryland Owner not to convert any portion of any Individual Property that is not currently under a Lease into space to be demised under a Lease or to be otherwise occupied or used except in a similar manner to which such space is currently used in the ordinary operation of a full-service, premium limited service or extended stay hotel, as the case may be, for the affected Individual Property, (ii) shall cause each Mortgage Loan Borrower and Maryland Owner to observe and perform all the obligations imposed upon the lessor landlord under the Leases in a commercially reasonable mannerand shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (biii) shall cause each Mortgage Loan Borrower and Maryland Owner to promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iv) shall cause each Mortgage Loan Borrower and Maryland Owner to enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leaseperformed; (cv) shall not permit any Mortgage Loan Borrower or Maryland Owner to collect any of the Rents more than one (1) month in advance (other than except security deposits required pursuant to such Leaseshall not be deemed Rents collected in advance); (dvi) shall not permit any Mortgage Loan Borrower or Maryland Owner to execute any other assignment of the lessorlandlord’s interest in any of the Leases or the Rents (except to Lender pursuant to the Loan Documents); (e) shall not alterRents, modify or change the terms of the Leases; and (f) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments other than in connection with the Mortgage Loan and the Mezzanine Loans; and (vii) shall not permit any Mortgage Loan Borrower or Maryland Owner to consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender (it being agreed by Lender that if a Lease satisfies the requirements set forth in subsection (a) above, no consent of Lender to any such assignment or subletting under such Lease shall be required).
(c) Borrower may, without the prior written consent of Lender, permit Mortgage Loan Borrower or Maryland Owner to amend, modify or waive the provisions of any Lease or terminate, reduce Rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the related Individual Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Agreement and any subordination agreement binding upon Lender with respect to such Lease. A termination of a Lease with a Tenant who is in default beyond applicable notice and grace periods or with respect to a Tenant which is bankrupt shall from time not be considered an action which has a materially adverse effect on the value of such Individual Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this subsection shall be subject to time reasonably requirethe prior approval of Lender and its counsel, at Borrower’s expense, which consent shall not be unreasonably withheld or delayed. Lender Borrower shall have the right cause Mortgage Loan Borrower and Maryland Owner to require each new Tenant to execute and promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this subsection together with Borrower’s certification that it has satisfied all of the conditions of this subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not permit Mortgage Loan Borrower or Maryland Owner, without the prior written consent of Lender, to enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a subordinationsurrender of space under, non-disturbance or shorten the term of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lenderany Major Lease.
Appears in 3 contracts
Samples: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Leasing Matters. Any Lease executed after the date hereof (a) Borrower shall not (and any amendment or termination thereofshall cause Mortgage Borrower and Guarantor (Operating Lease) shall require not to), without the prior written consent of LenderLender (and, which consent if a Securitization shall be in Lender’s sole and absolute discretion. have occurred, Borrower shall furnish have obtained and delivered to Lender with truea Rating Agency Confirmation) restate, correct and complete executed copies materially modify, materially amend or materially supplement (or permit the restatement, material modification, amendment or supplement of) any Operating Lease or Operating Lease Guaranty (provided, that any modification, amendment or supplement affecting any of all Leases, amendments thereof and the economic terms of any related agreements. Without limitation, and as applicable, Lender Operating Lease or any of the terms of the Operating Lease Guaranty shall be deemed to be material for purposes hereof), terminate or accept the surrender (or permit the termination or surrender) of any Operating Lease or Operating Lease Guaranty, or release or materially waive (or permit the release or material waiver of) the Operating Company or Guarantor (Operating Lease) from the performance or observance of any obligation or condition under the Operating Leases or Operating Lease Guaranty. In connection with a material modification, Lender may request, and in such event, Borrower shall not effect such modification without, an Additional True Lease Opinion in form and substance reasonably satisfactory to Lender issued by Borrower’s counsel (at Borrower’s expense). Borrower shall not permit (or cause or permit Mortgage Borrower to permit) the prepayment of any rents under the Operating Leases for more than one (1) month prior to the due date thereof. Notwithstanding the foregoing, Lender’s consent shall not be required in connection with any modification, amendment or waiver of any provision of the Operating Lease as may be reasonably necessary to comply with the requirements of this Agreement or any other Loan Document or that makes the provisions of the Operating Lease consistent with the provisions of this Agreement or any other Loan Document. Notwithstanding anything contained in this Section 5.1.20
(a) to the contrary, (x) Lender’s consent to any amendment, modification or supplement of the Operating Lease (or any new Operating Lease) or the Operating Lease Guaranty may also be conditioned on the delivery by Borrower, upon the reasonable request of Lender, of an Additional Insolvency Opinion and/or an Additional True Lease Opinion acceptable to Lender (and, if a Securitization shall have approved occurred, acceptable to the Rating Agencies), and (y) Lender’s consent to any assignment of any Operating Lease or Operating Lease Guaranty (or of any interest therein) or any material amendment, material modification or material supplement of any Operating Lease shall also be conditioned on the delivery by Borrower, upon the reasonable request of Lender, of an Additional Insolvency Opinion and an Additional True Lease Opinion acceptable to Lender (and, if a Securitization shall have occurred, acceptable to the Rating Agencies).
(b) Borrower shall not permit (or consent to) an assignment by any Operating Company of any such Operating Company’s interest(s) under any Operating Lease or an assignment by any Mortgage Borrower of any such Mortgage Borrower’s interest(s) under any Operating Lease Guaranty without, in each case, Lender’s prior written consent (and, if a Securitization shall have occurred, at Lender’s request, without Borrower providing to Lender a Rating Agency Confirmation and an Additional True Lease Opinion).
(c) All space Leases and all renewals of space Leases and all proposed Leases so long as executed after the same Original Closing Date entered into by Operating Company shall (ai) provide for rental rates rates, rent credits and free rent periods comparable to existing local market ratesrates for comparable properties, contain (ii) be on commercially reasonable market rate terms terms, (iii) provide that such Lease is subordinate to the Mortgage encumbering the Individual Property in question and do that the lessee will attorn to Mortgage Lender and any purchaser at a foreclosure sale; (iv) not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents; (v) not grant to the tenants thereunder any option or right to purchase the applicable Individual Property (or any portion thereof); and (vi) in the case of Major Leases, have initial terms less than twenty (b20) are for a lease term consecutive years, in each case (unless otherwise consented to by Lender pursuant to clause (d) below).
(i) Any Major Lease entered into by Operating Company with respect to an Individual Property executed after the Original Closing Date (and any renewal of any Major Lease with respect to an Individual Property), and any space Lease or space Lease renewal proposed to be entered into by Operating Company after the Original Closing Date and that does not exceeding one year, including all extensions, meet the criteria set forth in Sections 5.1.20(a) and subparagraph (c) above, shall be subject to the prior written approval of Lender, which approval shall not be unreasonably withheld, conditioned or delayed. Borrower shall not terminate or accept the surrender of (and shall not permit Operating Company or Mortgage Borrower to terminate or accept the surrender of) a Major Lease (unless by reason of a tenant default) without the consent of Lender.
(ii) Every submission to Lender of any proposed Major Lease (or Major Lease renewal, amendment, modification or termination) for Lender’s approval shall be forwarded to Lender together with a notice from Borrower (in bold typeface) that states “YOUR FAILURE TO RESPOND TO THIS NOTICE AND REQUEST FOR APPROVAL WITHIN TEN (10) BUSINESS DAYS OF YOUR RECEIPT OF THIS NOTICE SHALL CONSTITUTE YOUR DEEMED CONSENT TO THE MATTERS DESCRIBED IN OR THAT ARE THE SUBJECT OF THIS NOTICE”. If Lender responds to Borrower’s request by identifying missing documents or materials that are incomplete or inaccurate (and that are the subject of the request for approval), then Borrower shall re-submit such documents or materials to Lender for its approval together with individual, residential, non-commercial tenants, and a second notice from Borrower that complies with this section.
(diii) have been entered into If Lender fails to approve or disapprove any such proposed request or submission attached to a first notice or request sent by Borrower (or the matters that are the subject of the re-submitted notice or request for approval) within ten (10) Business Days of receipt of same, Borrower shall re-submit such instruments or materials to Lender for Lender’s approval and give Lender a second notice (in its ordinary course bold typeface) that states “SECOND NOTICE — YOUR FAILURE TO RESPOND TO THIS NOTICE AND REQUEST FOR APPROVAL WITHIN FIVE (5) BUSINESS DAYS OF YOUR RECEIPT OF THIS NOTICE SHALL CONSTITUTE YOUR DEEMED CONSENT TO THE MATTERS DESCRIBED IN OR THAT ARE THE SUBJECT OF THIS NOTICE”. If Lender fails to respond to such second notice within five (5) Business Days of business. All Leases executed after the date hereof shall provide that they are subordinate receipt of same, then Lender’s consent to the Security Instrument proposed request or submission that is the subject of such notice shall be deemed granted.
(e) Borrower shall and the Liens created thereby shall cause Mortgage Borrower and that the Tenant thereunder agrees Operating Company to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereofi) or power of sale. Borrower (a) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Individual Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Lease; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. .
(f) Upon request, Borrower shall furnish Lender with executed copies of all new Leases or Lease renewals or amendments.
(g) Notwithstanding anything to the contrary contained herein, Borrower shall have the right not enter into (or permit Operating Company or Mortgage Borrower to require each new Tenant to execute and deliver to Lender enter into) a subordination, non-disturbance lease of possession and attornment agreement in form, content and manner all or substantially all of execution reasonably acceptable to any Individual Property without Lender’s prior consent.
Appears in 3 contracts
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc), First Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Leasing Matters. Any Lease executed Leases with respect to the Property written after the date hereof (and any amendment or termination thereof) Closing Date for more than the Relevant Leasing Threshold square footage shall require be subject to the prior written consent approval of Lender, which consent approval may be given or withheld in the sole discretion of Lender. Lender shall approve or disapprove any such Lease within ten (10) Business Days of Lender's receipt of a final execution draft of such Lease (including all exhibits, schedules, supplements, addenda or other agreements relating thereto) and a written notice from Borrower requesting Lender's approval to such Lease, and such Lease shall be deemed approved, if Lender does not disapprove such Lease within said ten (10) Business Day period PROVIDED such written notice conspicuously states, in Lender’s sole and absolute discretionlarge bold type, that "PURSUANT TO SECTION 5.1.20 OF THE LOAN AGREEMENT, THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN TEN (10) BUSINESS DAYS OF LENDER'S RECEIPT OF SUCH LEASE AND WRITTEN NOTICE". Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain rates (unless such rental rates are otherwise set forth in the Leases executed prior to the Closing Date). All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s 's rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof Closing Date shall provide that they are subordinate to the Security Instrument and Mortgage encumbering the Liens created thereby Property and that the Tenant tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower Borrower
(ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided involved except that in no event shall termination by Borrower terminate or accept the acceptance of surrender by a tenant of any Lease by a Tenant shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; providedProperty PROVIDED, howeverHOWEVER, that no such termination or surrender of any Lease covering more than the Relevant Leasing Threshold will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for which consent may be withheld in the Leasesole discretion of Lender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s 's interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents without the prior written consent of Lender, which consent may be withheld in the sole discretion of Lender; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments assignment in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have Notwithstanding the foregoing, Borrower may, without the prior written consent of Lender, terminate any Lease which demises less than the Relevant Leasing Threshold under any of the following circumstances: (i) the tenant under said Lease is in default beyond any applicable grace and cure period, and Borrower has the right to require each new Tenant terminate such Lease; (ii) such termination is permitted by the terms of the Lease in question and Borrower has secured an obligation from a third party to execute lease the space under the Lease to be terminated at a rental equal to or higher than the rental due under the Lease to be terminated; and deliver (iii) if the tenant under the Lease to Lender be terminated, has executed a subordinationright under said Lease to terminate its lease upon payment of a termination fee to Borrower, non-disturbance of possession and attornment agreement has in formfact terminated its lease and paid said fee, content and manner of execution reasonably acceptable to LenderBorrower may accept said termination.
Appears in 3 contracts
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc), Loan Agreement (Behringer Harvard Reit I Inc), Loan Agreement (Behringer Harvard Reit I Inc)
Leasing Matters. Any Lease (a) Except as otherwise consented to by Lender in writing, all Leases shall be written on the standard form of lease which shall have been approved by Lender. Upon reasonable request (not to be made more than once in any consecutive twelve (12) month period), Borrower shall furnish Lender with executed after copies of a sample of the date hereof (and any amendment or termination thereof) shall require Leases as requested by Lender. No material changes may be made to the Lender-approved standard form of lease without the prior written consent of Lender. In addition, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) leases shall provide for rental rates and terms comparable to existing local market rates, contain reasonable market rate rates and terms and do not contain any terms which would materially adversely affect Lender’s rights under the Loan Documentsshall be arm’s-length transactions with bona fide, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial independent third party tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Major Leases executed after the date hereof shall provide that they are subordinate to the applicable Security Instrument and the Liens created thereby and that the Tenant thereunder tenant agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure Lender.
(or deed in lieu thereofb) or power of sale. Borrower (ai) shall observe and perform all the obligations imposed upon the lessor landlord under the Leases in a commercially reasonable mannerand shall not do or permit to be done anything to impair the value of the Leases as security for the Debt; (bii) shall enforce all of the terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason (except for termination of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Major Lease will be permitted without the which shall require Lender’s prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leaseapproval); (ciii) shall not collect any of the Rents more than one two (12) month months in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessorlandlord’s interest in the Leases or the Rents Rents; and (except to Lender pursuant to the Loan Documents); (ev) shall not alterconsent to any assignment of or subletting under the Leases not in accordance with their terms, modify without the prior written consent of Lender.
(c) All proposed Leases, renewals of Leases or change amendments or terminations of Leases shall be subject to the terms prior approval of Lender, which approval shall not be unreasonably withheld, conditioned or delayed; provided, however, Borrower may, without the consent of Lender, terminate any Lease (other than a Major Lease) if the tenant thereunder is in default beyond applicable notice and grace periods under such Lease. Notwithstanding the provisions of the Leasespreceding sentence, renewals of Leases and proposed Leases shall not be subject to the prior approval of Lender, provided all of the following conditions are satisfied: (i) the Lease is not a Major Lease; (ii) the term is on a month-to-month basis; (iii) the renewal or proposed Lease is on the standard form of lease approved by Lender and provides for a term of less than one (1) year; (iv) the renewal or proposed Lease does not contain any option, offer, right of first refusal, or other similar right to acquire all or any portion of the applicable Individual Property; and (fv) the renewal or proposed Lease provides for rental rates and terms (including credits or concessions) comparable to existing market rates and terms and is an arm’s-length transaction with a bona fide, independent third party tenant. Upon Lender’s reasonable request, Borrower shall execute and deliver at to Lender, (i) within thirty (30) days after the request execution of Lender any renewal or proposed Major Lease, copies of all such further assurancesMajor Leases, confirmations and assignments in connection (ii) within thirty days of such request, Borrower’s certification that it has satisfied all of the conditions of this Section 5.1.20(c) with respect to all renewal or new Leases (which are not Major Leases) which were entered into pursuant to this Section 5.1.20(c) since the Leases as Lender shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance date of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender’s last request.
Appears in 3 contracts
Samples: Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust)
Leasing Matters. Any Lease executed after the date hereof (and any amendment or termination thereof) shall require the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) provide for rental rates comparable Borrower may enter into Leases or modify existing Leases demising a portion of the Property less than or equal to existing local market ratesthe Relevant Leasing Threshold without Lender’s prior written approval provided such Leases are to unaffiliated, contain third-party tenants and shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All further provided that such Leases executed after the date hereof shall provide that (x) they are subordinate to the Security Instrument Mortgage encumbering the Property, and (y) the Liens created thereby and that the Tenant tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale.
(b) Borrower may not enter into a Lease or modify an existing Lease covering all or substantially all of the Property without the prior written approval of Lender, which approval may be given or withheld in the sole discretion of Lender.
(c) Borrower may not enter into Leases or modify existing Leases demising a portion of the Property greater than the Relevant Leasing Threshold, but less than all or substantially all of the Property, without the prior written approval of Lender, provided, however, Lender shall not withhold such approval if Borrower delivers to Lender, together with its request for approval, an abstract or summary of the proposed Lease terms and an Officer’s Certificate certifying that the Leasing Conditions have been satisfied. With respect to the approval of a Lease (or modification of an existing Lease) demising a portion of the Property greater than the Relevant Leasing Threshold, (i) the failure to satisfy one or more of the Leasing Conditions shall not, in an of itself, be a basis for disapproval, and (ii) Lender shall taken into consideration current market conditions when determining whether to approve such a Lease (or modification).
(d) To the extent Lender’s written approval is required pursuant to this Section 5.1.20 to any Lease or modification (excluding a Lease for all or substantially all of the Property, the approval of which is required pursuant to Section 5.1.20(b) hereof), Borrower’s written request therefor shall be delivered together with such materials reasonably requested by Lender in order to evaluate such request (it being acknowledged and agreed that no request for consent shall be effective unless and until such materials have been delivered to Lender) and shall conspicuously state, in large bold type, that “PURSUANT TO SECTION 5.1.20 OF THE LOAN AGREEMENT, THIS IS A REQUEST FOR LENDER’S CONSENT. LENDER’S RESPONSE IS REQUESTED WITHIN TEN (10) BUSINESS DAYS. LENDER’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD WILL ENABLE BORROWER TO DELIVER A SECOND NOTICE REQUESTING LENDER’S CONSENT”. In the event Lender fails to approve or disapprove to such request within ten (10) Business Days’ of the effective date of such initial request, Borrower may deliver to Lender a second written request for approval, which second written request for approval shall conspicuously state, in large bold type, that “THIS IS A REQUEST FOR LENDER’S CONSENT. LENDER’S CONSENT IS REQUESTED WITHIN FIVE (5) BUSINESS DAYS. THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN FIVE (5) BUSINESS DAYS’ OF LENDER’S RECEIPT OF THIS WRITTEN NOTICE”. In the event that Lender fails to approve or disapprove the second written request within such five (5) Business Day period, then Lender’s consent shall be deemed to have been granted.
(e) Borrower shall furnish Lender with executed copies of all Leases and a copy of the executed Tenant Direction Letter signed by Borrower and to the extent available, the tenant.
(f) Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involvedinvolved except that, provided that in subject to the terms of this Section 5.1.20, no event shall termination by Borrower terminate or accept the acceptance of surrender by a tenant of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will shall be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for which consent may be withheld in the Leasesole discretion of Lender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have Notwithstanding the foregoing, Borrower may, without the prior written consent of Lender, terminate (or accept a surrender of) any Lease which demises less than the Relevant Leasing Threshold under any of the following circumstances: (i) the tenant under said Lease is in default beyond any applicable grace and cure period, and Borrower has the right to require each terminate such Lease; (ii) such termination is permitted by the terms of the Lease in question and Borrower has secured an obligation from a third party to lease the space under the Lease to be terminated at a rental equal to or higher than the rental due under the Lease to be terminated; and (iii) if the tenant under the Lease to be terminated has executed a right under said Lease to terminate its Lease upon payment of a termination fee to Borrower and has in fact terminated its Lease and paid said fee, Borrower may accept said termination. Notwithstanding anything to the contrary contained herein, all new Tenant Leases and all amendments, modifications, extensions, and renewals of existing Leases with Tenants that are Affiliates of Borrower shall be subject to execute and deliver to Lender a subordination, non-disturbance the prior written consent of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender.
Appears in 3 contracts
Samples: Loan Agreement (Inland Diversified Real Estate Trust, Inc.), Loan Agreement (Inland Diversified Real Estate Trust, Inc.), Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Leasing Matters. Any Lease executed Leases with respect to an Individual Property in excess of three thousand (3,000) square feet written after the date hereof (and any amendment or termination thereof) shall require the prior written consent of be approved by Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld, conditioned or delayed. Upon request, Borrower shall furnish furnish, or cause to be furnished, Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents. Borrower shall cause Mortgage Borrower and Property Owner to, and shall cause Mortgage Borrower and Property Owner to cause Operating Lessee to, (bi) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (a) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Individual Property involved, provided involved except that in no event shall termination by Mortgage Borrower terminate or accept the Property Owner or acceptance of surrender by a tenant of any Lease by a Tenant Leases in excess of three thousand (3,000) square feet shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Individual Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (ciii) shall not collect any of the Rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender Notwithstanding anything to the contrary contained herein, neither Borrower, Property Owner nor Operating Lessee shall have enter into a lease of all or substantially all of any Individual Property without Lender’s prior written consent. Except for the right immediately preceding sentence, the foregoing provisions of this Section 5.1.20 shall not apply in any manner to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lenderthe Operating Lease.
Appears in 3 contracts
Samples: Mezzanine Loan Agreement (ESH Hospitality LLC), Mezzanine Loan Agreement (ESH Hospitality LLC), Mezzanine Loan Agreement (ESH Hospitality LLC)
Leasing Matters. Any Lease Major Leases with respect to any Property executed after the date hereof (and shall be subject to Lender’s approval, which approval shall not be unreasonably withheld, conditioned or delayed, provided, however, that renewals of any amendment or termination thereof) Major Lease by Mortgage Borrowers initially executed prior to the Closing Date shall not require the prior written consent approval of LenderLender if the terms of any such Lease provided for renewals at a reasonably determinable rent. Upon request, which consent Borrowers shall be in Lender’s sole and absolute discretion. Borrower furnish, or shall furnish cause Mortgage Borrowers to furnish, Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender All proposed Major Leases shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) provide for rental rates comparable to existing local market rates, contain on commercially reasonable market rate terms and do not no Lease shall contain any terms which would materially adversely affect Lender’s rights under the Loan Documents or Mortgage Lender’s rights under the Mortgage Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby Mortgage and that the Tenant thereunder lessee agrees to attorn to Mortgage Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale, provided that, with respect to Major Leases, Mortgage Lender provides commercially reasonable non-disturbance language. Borrower Borrowers shall cause Mortgage Borrowers to (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the any Property involved, provided except that in no event shall termination by any Mortgage Borrower terminate or accept the acceptance of surrender by a tenant of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Major Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Mortgage Loan Documents); and (ev) shall not alter, modify or change the terms of any Major Lease in any material manner, in each of the Leases; and foregoing instances, without the prior written approval of Lender, not to be unreasonably withheld. To the extent Lender’s approval is required pursuant to this Section 5.1.20, Lender shall endeavor to respond to a request for Lender’s approval within ten (f10) shall execute and deliver at the Business Days after Borrowers’ written request of Lender all such further assurancestherefor, confirmations and assignments delivered together with any documents or information required to be provided by Borrowers hereunder in connection with Lender’s review of the Leases as proposed Major Lease, Major Lease amendment or Major Lease termination. If the correspondence from Borrowers requesting such approval contains the following statement at the top of the first page thereof in capitalized, boldfaced, 14 point type lettering: “IF YOU FAIL TO RESPOND TO OR TO EXPRESSLY DENY THIS REQUEST FOR APPROVAL IN WRITING WITHIN TEN (10) BUSINESS DAYS, YOUR APPROVAL SHALL BE DEEMED GIVEN”, and if Lender shall from time fail to time respond to or to expressly deny such request for approval in writing (stating in reasonable detail the reason for such disapproval) within ten (10) Business Days after receipt of Borrowers’ written request therefor together with the documents and information required above and any other information reasonably require. requested by Lender in writing prior to the expiration of such ten (10) Business Day period in order to adequately review the same, then Borrowers shall have the right to require each new Tenant to execute re-submit such proposed Major Lease, Major Lease amendment or Major Lease termination and deliver accompanying information to Lender with a subordinationrequest for approval containing the following statement at the top of the first page thereof in capitalized, non-disturbance boldfaced, 14 point type lettering: “IF YOU FAIL TO RESPOND TO OR TO EXPRESSLY DENY THIS REQUEST FOR APPROVAL IN WRITING WITHIN FIVE (5) BUSINESS DAYS, YOUR APPROVAL SHALL BE DEEMED GIVEN”, and if Lender does not respond to such second request by approving such proposed Major Lease, Major Lease amendment or Major Lease termination or stating its objection thereto within five (5) Business Days of possession and attornment agreement in formLender’s receipt of such second submission, content and manner Lender’s approval shall be deemed given. Notwithstanding anything to the contrary contained herein, Borrowers shall not permit or cause Mortgage Borrowers to enter into a lease of execution reasonably acceptable to all or substantially all of any Property without Lender’s prior consent.
Appears in 3 contracts
Samples: First Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC), Second Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC), Third Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC)
Leasing Matters. Any Lease Leases with respect to the Property executed after the date hereof (and any amendment or termination thereof) providing for rent due thereunder in an amount greater than $75,000 per annum shall require the prior written consent of be approved by Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld, conditioned or delayed, provided, however, (a) renewals of any Lease by Borrower initially executed prior to the Closing Date shall not require the approval of Lender if the terms of any such Lease provided for renewals at a fixed rent, or (b) if the terms of any Lease initially executed prior to the Closing Date do not provide for specific renewals, Borrower can lease space to the same tenant under a new Lease if the economic terms of such new Lease are the same or better than the economic terms of the prior Lease. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby Mortgage and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale, provided that Lender provides commercially reasonable nondisturbance language. Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided involved except that in no event shall termination by Borrower terminate or accept the acceptance of surrender by a tenant of any Lease by a Tenant Leases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease executed after the Closing Date providing for rent due thereunder in an amount greater than $75,000 per annum will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); and (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the Leases; and Leases in a manner inconsistent with the provisions of the Loan Documents. To the extent Lender’s prior written approval is required pursuant to this Section 5.1.20, Lender shall endeavor to respond to a request for Lender’s approval within ten (f10) shall execute and deliver at the Business Days after Borrower’s written request of Lender all such further assurancestherefore, confirmations and assignments delivered together with any documents or information required to be provided by Borrower hereunder in connection with Lender’s review of the Leases as proposed Lease. If the correspondence from Borrower requesting such approval contains the following statement at the top of the first page thereof in capitalized, boldfaced, 14 point type lettering: “IF YOU FAIL TO RESPOND TO OR TO EXPRESSLY DENY THIS REQUEST FOR APPROVAL IN WRITING WITHIN TEN (10) BUSINESS DAYS, YOUR APPROVAL SHALL BE DEEMED GIVEN”, and if Lender shall from time fail to time respond to or to expressly deny such request for approval in writing (stating in reasonable detail the reason for such disapproval) within ten (10) Business Days after receipt of Borrower’s written request therefor together with the documents and information required above and any other information reasonably require. requested by Lender in writing prior to the expiration of such ten (10) Business Day period in order to adequately review the same, then (x) if the annual rent of the proposed Lease is less than $250,000 per annum, Lender’s approval shall have be deemed given or (y) if the right to require each new Tenant to execute annual rent of the proposed Lease is $250,000 per annum or greater, Borrower shall re-submit such proposed Lease and deliver accompanying information to Lender with a subordinationrequest for approval containing the following statement at the top of the first page thereof in capitalized, boldfaced, 14 point type lettering: “IF YOU FAIL TO RESPOND TO OR TO EXPRESSLY DENY THIS REQUEST FOR APPROVAL IN WRITING WITHIN FIVE (5) BUSINESS DAYS, YOUR APPROVAL SHALL BE DEEMED GIVEN” and if Lender does not respond to such second request by approving such proposed Lease or stating its objection thereto within five (5) Business Days of Lender’s receipt of such second submission, Lender’s approval shall be deemed given. Notwithstanding anything to the contrary contained herein, Borrower shall not enter into a lease of all or substantially all of the Property without Lender’s prior consent and (i) neither Hotel Owner nor Hotel Operator shall terminate the Hotel Operating Lease nor enter into any material amendment, modification or supplement to the Hotel Operating Lease without, in either case, Lender’s prior written consent, and (ii) Borrower shall promptly provide Lender with a copy of any termination, amendment, modification or supplement to the Hotel Operating Lease entered into by Borrower, together with written certification from an officer of Borrower which confirms that (x) the copy delivered is a true, complete and correct copy of such termination, amendment, modification or supplement and (y) Borrower has satisfied all conditions of this Section; provided, however, that Borrower shall be permitted, without any approval of Lender, to make (I) non-disturbance material amendments, modifications or supplements to the Hotel Operating Lease and (II) such other amendments, modifications or supplements to the Hotel Operating Lease which modify, change or adjust the amounts payable by Hotel Operator to Hotel Owner, extend the term thereof, or which are otherwise necessary or appropriate in order for Hotel Operator to qualify and/or be treated as a “taxable REIT subsidiary” under the Code and/or for FelCor REIT to qualify and/or be treated as a “real estate investment trust” under the Code, provided that, in each case, such amendments, modifications or supplements do not result in an Event of possession Default (or an event which but for the passage of time or the giving of notice or both would constitute an Event of Default), violate or result in a breach of the Management Agreement, invalidate or adversely affect the rights of Lender under the Assignment of Management Agreement, or result in a material adverse effect on (A) the business operations, economic performance, assets, financial condition, equity, contingent liabilities, material agreements or results of operations of Borrower (collectively) or the Property, (B) the enforceability or validity of any Loan Document, the perfection or priority of any Lien created under any Loan Document or the remedies of Lender under any Loan Document, (C) the ability of Borrower to perform, in all material respects, its obligations under each of the Loan Documents, or (D) the value of, or cash flow from the Property. Borrower shall promptly provide Lender notice in writing of any amendments, modifications or supplements to the Hotel Operating Lease permitted under this Section and attornment agreement in formcopies of any documents evidencing such amendments, content and manner of execution reasonably acceptable modifications or supplements to Lenderthe Hotel Operating Lease.
Appears in 2 contracts
Samples: Loan Agreement (FelCor Lodging Trust Inc), Loan Agreement (FelCor Lodging Trust Inc)
Leasing Matters. Any Lease executed after the date hereof (a) All Leases and any amendment or termination thereof) shall require the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) provide for rental rates comparable to existing local market rates, contain reasonable market rate terms and do not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall (i) be negotiated at arm’s length and shall be on commercially reasonable terms, and (ii) provide that they are such Lease is subordinate to the Security Instrument and the Liens created thereby other Loan Documents and that the Tenant thereunder agrees lessee agrees, subject to customary and reasonable provisions for non-disturbance to the extent the lessee is not in default thereunder, to attorn to Lender and any purchaser at a foreclosure sale. Any Major Lease and any renewal, material waiver, material amendment, material modification or termination thereof executed after the date hereof shall be subject to Lender’s prior approval, which approval shall not be unreasonably withheld or delayed. If an Event of Default shall exist, all Leases and each renewal, waiver, amendment, modification or termination thereof executed during the existence of such Event of Default shall be subject to Lender’s prior approval in its sole discretion. Lender’s approval shall not be required for any Lease, or any other purchaser renewal, waiver, amendment, modification or termination except as expressly provided in this Section 5.1.20. Upon request of Borrower and at Borrower’s sole cost and expense, so long as no Event of Default shall exist, from time to time Lender shall promptly execute and deliver a subordination, nondisturbance and attornment agreement in connection with any Major Lease, such agreement to be in Lender’s then usual and customary form and otherwise reasonably acceptable to Lender in all respects.
(b) Any request for the approval by Lender of any Lease or any renewal, waiver, amendment, modification or termination thereof shall be delivered to Lender in writing and shall include a copy of the Property at proposed Lease or renewal, waiver, amendment, modification or termination and Lender shall so advise whether such approval is granted or denied within ten (10) Business Days after receipt of such written request. Provided that the request is accompanied by a sale notice, which provides in upper case bold-faced type: “THIS IS A REQUEST FOR AN APPROVAL WITH RESPECT TO A LEASE. IF LENDER FAILS TO RESPOND WITHIN 10 BUSINESS DAYS OF THE EFFECTIVENESS OF THIS NOTICE, THE REQUESTED ACTION WITH RESPECT TO THE LEASE WILL BE DEEMED APPROVED”, if Lender shall not so advise of its determination within such ten (10) Business Day period (notice by foreclosure facsimile on the same day being acceptable for this purpose), such proposed Lease or renewal, waiver, amendment, modification or termination thereof shall be deemed approved by Lender. If Lender shall deny any such request for approval, Lender shall specify the reasons for its refusal to grant approval.
(or deed in lieu thereofc) or power of sale. Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Propertymanner; provided, however, that no such termination Borrower shall not terminate or accept a surrender of any a Major Lease will be permitted without the Lender’s prior written consent of Lender or unless such termination or surrender is specifically provided for approval, except in the Leaseevent of a default by the tenant thereunder and with prior written notice to Lender; (ciii) shall not collect any of the Rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); and (ev) shall not alterhold all security deposits under all Leases in accordance with applicable Legal Requirements. Upon request, modify or change Borrower shall furnish Lender with executed copies of all Leases. Notwithstanding the terms foregoing provisions of the Leases; and (f) shall execute and deliver at the request of Lender all such further assurancesthis Section 5.1.20(c), confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender Borrower shall have the right to require each new Tenant terminate any Lease by the exercise of any specific right set forth in such Lease to execute and terminate the same due to the applicable tenant’s failure to achieve any required sales thresholds set forth therein; provided that Borrower shall promptly deliver to Lender a subordination, non-disturbance lender written notice of possession the exercise of any such right and attornment agreement in form, content and manner the termination of execution reasonably acceptable to Lenderany such Lease.
Appears in 2 contracts
Samples: Loan Agreement (Caesars Acquisition Co), Loan Agreement (Harrahs Entertainment Inc)
Leasing Matters. (a) Any Major Lease executed after the date hereof (and any amendment or termination thereof) shall require the prior written consent of Lender, which consent shall not be in Lender’s sole and absolute discretionunreasonably withheld. Upon request, the Borrower shall cause the applicable Mortgage Borrower to furnish Lender with true, correct and complete executed copies of all such proposed Major Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument applicable Mortgage and the Liens Lien created thereby and that the Tenant tenant thereunder agrees to attorn to Mortgage Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower shall cause each Mortgage Borrower (a) shall to observe and perform the obligations imposed upon the lessor under the Leases applicable to the Property or Properties owned by such Mortgage Borrower in a commercially reasonable manner; (b) shall to enforce and amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property or Properties owned by such Mortgage Borrower involved, provided except that in no event such Mortgage Borrower shall Borrower not terminate or accept the surrender of any Lease by a Tenant tenant of, any Major Lease unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no Property or Properties owned by such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseMortgage Borrower; (c) shall not to collect any of the Rents more than one (1) month in advance (other than security deposits required pursuant to such Lease); (d) shall not to execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (e) shall not to alter, modify or change the terms of any Leases in a manner inconsistent with the Leasesprovisions of the Loan Documents; and (f) shall to execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Notwithstanding anything to the contrary contained herein, Borrower shall not cause or permit any Mortgage Borrower to enter into a Lease after the date hereof of all or substantially all of the Property or Properties owned by such Mortgage Borrower without Lender’s prior written consent.
(b) Notwithstanding anything contained herein to the contrary, with respect to any Property, Borrower shall not cause or permit any Mortgage Borrower, without the prior written consent of Lender, which consent shall not be unreasonably withheld, to enter into, renew, extend, amend, modify, waive any provisions of, terminate, release any Person from liability under, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease or any instrument guaranteeing or providing credit support for any Major Lease; provided that Lender’s consent shall not be required with respect to the exercise by any tenant of any renewal and extension options set forth in its Lease.
(c) Whenever Lender’s approval or consent is required pursuant to the provisions of this Section 5.1.20, Lender shall use good faith efforts to respond within ten (10) Business Days after Lender’s receipt of Borrower’s written request for approval or consent, accompanied by the applicable Lease or other item for which consent is sought. If Lender fails to respond to such request within ten (10) Business Days, and Borrower sends a second request containing a legend clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “REQUEST DEEMED APPROVED IF NO RESPONSE WITHIN 10 BUSINESS DAYS”, Lender shall be deemed to have approved or consented to such Lease or other item for which consent is sought if Lender fails to respond to such second written request before the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance expiration of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lendersuch ten (10) Business Day period.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Cole Credit Property Trust Inc), Mezzanine Loan Agreement (Cole Credit Property Trust III, Inc.)
Leasing Matters. Any (a) With respect to any Individual Property, Pledgor may cause Mortgage Borrower to enter into a proposed Lease executed after (including the date hereof renewal or extension of an existing Lease (and any amendment or termination thereofa “Renewal Lease”)) shall require without the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all provided such proposed Leases so long as the same Lease or Renewal Lease (ai) provide provides for rental rates and terms comparable to existing local market ratesrates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Mortgage Borrower (unless, contain in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a material adverse effect on the value or quality of the applicable Individual Property, (iv) is written on the standard form of lease approved by Lender with such modifications thereto which are commercially reasonable given the then current market rate terms conditions with respect to the relevant Individual Property and which do not contain any terms which would materially adversely affect Mortgage Borrower’s interests under the Lease or the value of the relevant Individual Property, and (v) is not a Major Lease. All proposed Leases which do not satisfy the requirements set forth in this Section 5.1.17(a) shall be subject to the prior approval of Lender, which approval shall not be unreasonably withheld, conditioned or delayed. At Lender’s rights under request, Pledgor shall cause Mortgage Borrower to promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Pledgor’s certification that it has satisfied or caused Mortgage Borrower to have satisfied all of the Loan Documents, conditions of this Section.
(b) are for a lease term not exceeding one year, including all extensions, Pledgor shall cause Mortgage Borrower to (ci) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (a) shall observe and perform all the obligations imposed upon the lessor under the Leases in a commercially reasonable mannerand shall not do or permit to be done anything to materially impair the value of any of the Leases as security for the Debt; (bii) promptly send copies to Lender of all notices of default or other material matters which Mortgage Borrower shall send or receive with respect to the Leases; (iii) enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason (except for termination of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Major Lease will be permitted without the which shall require Lender’s prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leaseapproval); (civ) shall not collect any of the Rents more than one (1) month in advance (other than security deposits required pursuant to such Leaseexcept Security Deposits shall not be deemed Rents collected in advance); (dv) shall immediately upon receipt, deposit all Lease Termination Payments into the Rollover Reserve Fund, (vi) not execute any other assignment of the lessor’s interest in any of the Leases or the Rents (except to Lender pursuant to as contemplated by the Mortgage Loan Documents); and (vii) not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed.
(c) Pledgor may, without the consent of Lender, cause Mortgage Borrower to amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such Lease is not a Major Lease and that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a material adverse effect on the value of the applicable Individual Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Agreement. A termination of a Lease (other than a Major Lease) with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a material adverse effect on the value of the applicable Individual Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior written approval of Lender and its counsel, at Pledgor’s expense. At Lender’s request, Pledgor shall cause Mortgage Borrower to promptly deliver to Lender copies of all Leases, amendments, modifications and waivers which are entered into pursuant to this Section 5.1.17(c) together with Pledgor’s certification that it has satisfied or caused to be satisfied all of the conditions of this Section 5.1.17(c).
(d) Notwithstanding anything contained herein to the contrary, with respect to any Individual Property, Pledgor shall cause Mortgage Borrower to not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease or any instrument guaranteeing or providing credit support for any Major Lease.
(e) shall not alterNotwithstanding the provisions of this Section 5.1.17 to the contrary, modify or change to the extent that Lender’s prior written approval is required pursuant to the terms of the Leases; and this Section 5.1.17, such request for approval shall be deemed approved if (fi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have failed to either (x) notify Pledgor of its approval or disapproval or (y) request additional information reasonably required by Lender in order to reach a decision with respect to such request within ten (10) Business Days (the right “Approval Period”) following Lender’s receipt of Pledgor’s written request together with any and all information and documentation relating thereto reasonably requested by Lender to require each new Tenant reach a decision and provided, the request to execute Lender is marked in bold lettering with the following: “LENDER’S RESPONSE IS REQUIRED WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF THE LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER” and deliver the envelope containing the request must be marked “PRIORITY”, (ii) Pledgor shall have delivered to Lender a subordinationwritten notice of Lender’s failure to respond to Pledgor’s request within the Approval Period (the “Failure to Respond Notice”), non-disturbance and (iii) Lender shall have failed to notify Pledgor of possession its approval or disapproval within five (5) Business Days following Lender’s receipt of the Failure to Respond Notice (such five (5) Business Day period, the “Second Notice Period”); provided, however, that if such request is of such nature that it cannot reasonably be approved within such Second Notice Period and attornment agreement Lender is diligently pursuing such approval, Lender shall have such additional time as is reasonably necessary to complete such approval upon notice to Pledgor of the need for such additional time within the Second Notice Period. Pledgor shall be required to provide Lender with such material information and documentation as may be reasonably requested by Lender, in formits reasonable discretion, content including without limitation, lease comparables and manner of execution other market information as reasonably acceptable to required by Lender.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.), Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Leasing Matters. (a) Any Major Lease executed after the date hereof (and any amendment or termination thereof) shall require the prior written consent of Lender, which consent shall not be in Lender’s sole and absolute discretionunreasonably withheld. Upon request, the Borrower requesting such consent shall furnish Lender with true, correct and complete executed copies of all such proposed Major Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument applicable Mortgage and the Liens Lien created thereby and that the Tenant tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Each Borrower (a) shall observe and perform the obligations imposed upon the lessor under the Leases applicable to the Property or Properties owned by such Borrower in a commercially reasonable manner; (b) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property or Properties owned by such Borrower involved, provided except that in no event such Borrower shall Borrower not terminate or accept the surrender of any Lease by a Tenant tenant of, any Major Lease unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no Property or Properties owned by such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseBorrower; (c) shall not collect any of the Rents more than one (1) month in advance (other than security deposits required pursuant to such Lease); (d) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (e) shall not alter, modify or change the terms of any Leases in a manner inconsistent with the Leasesprovisions of the Loan Documents; and (f) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Notwithstanding anything to the contrary contained herein, no Borrower shall enter into a Lease after the date hereof of all or substantially all of the Property or Properties owned by such Borrower without Lender’s prior written consent. Lender shall have the right to require each new Tenant tenant to execute and deliver to Lender a subordination, non-non disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender.
(b) Notwithstanding anything contained herein to the contrary, with respect to any Property, no Borrower shall, without the prior written consent of Lender, which consent shall not be unreasonably withheld, enter into, renew, extend, amend, modify, waive any provisions of, terminate, release any Person from liability under, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease or any instrument guaranteeing or providing credit support for any Major Lease; provided that Lender’s consent shall not be required with respect to the exercise by any tenant of any renewal and extension options set forth in its Lease.
(c) Whenever Lender’s approval or consent is required pursuant to the provisions of this Section 5.1.20, Lender shall use good faith efforts to respond within ten (10) Business Days after Lender’s receipt of any Borrower’s written request for approval or consent, accompanied by the applicable Lease or other item for which consent is sought. If Lender fails to respond to such request within ten (10) Business Days, and the Borrower making such initial request sends a second request containing a legend clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “REQUEST DEEMED APPROVED IF NO RESPONSE WITHIN 10 BUSINESS DAYS”, Lender shall be deemed to have approved or consented to such Lease or other item for which consent is sought if Lender fails to respond to such second written request before the expiration of such ten (10) Business Day period.
Appears in 2 contracts
Samples: Loan Agreement (Cole Credit Property Trust Inc), Loan Agreement (Cole Credit Property Trust III, Inc.)
Leasing Matters. Any Lease (a) Except as otherwise consented to by Lender in writing, all Leases shall be written on the standard form of lease which shall have been approved by Lender. Upon reasonable request (not to be made more than once in any consecutive twelve (12) month period), Borrower shall furnish Lender with executed after copies of a sample of the date hereof (and any amendment or termination thereof) shall require Leases as requested by Lender. No material changes may be made to the Lender-approved standard form of lease without the prior written consent of Lender. In addition, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) leases shall provide for rental rates and terms comparable to existing local market rates, contain reasonable market rate rates and terms and do not contain any terms which would materially adversely affect Lender’s rights under the Loan Documentsshall be arm's-length transactions with bona fide, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial independent third party tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Major Leases executed after the date hereof shall provide that they are subordinate to the applicable Security Instrument and the Liens created thereby and that the Tenant thereunder tenant agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure Lender.
(or deed in lieu thereofb) or power of sale. Borrower (ai) shall observe and perform all the obligations imposed upon the lessor landlord under the Leases in a commercially reasonable mannerand shall not do or permit to be done anything to impair the value of the Leases as security for the Debt; (bii) shall enforce all of the terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason (except for termination of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Major Lease will be permitted without the which shall require Lender's prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leaseapproval); (ciii) shall not collect any of the Rents more than one two (12) month months in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s landlord's interest in the Leases or the Rents Rents; and (except to Lender pursuant to the Loan Documents); (ev) shall not alterconsent to any assignment of or subletting under the Leases not in accordance with their terms, modify without the prior written consent of Lender.
(c) All proposed Leases, renewals of Leases or change amendments or terminations of Leases shall be subject to the terms prior approval of Lender, which approval shall not be unreasonably withheld, conditioned or delayed; provided, however, Borrower may, without the consent of Lender, terminate any Lease (other than a Major Lease) if the tenant thereunder is in default beyond applicable notice and grace periods under such Lease. Notwithstanding the provisions of the Leasespreceding sentence, renewals of Leases and proposed Leases shall not be subject to the prior approval of Lender, provided all of the following conditions are satisfied: (i) the Lease is not a Major Lease; (ii) the term is on a month-to-month basis; (iii) the renewal or proposed Lease is on the standard form of lease approved by Lender and provides for a term of less than one (1) year; (iv) the renewal or proposed Lease does not contain any option, offer, right of first refusal, or other similar right to acquire all or any portion of the applicable Individual Property; and (fv) the renewal or proposed Lease provides for rental rates and terms (including credits or concessions) comparable to existing market rates and terms and is an arm's-length transaction with a bona fide, independent third party tenant. Upon Lender's reasonable request, Borrower shall execute and deliver at to Lender, (i) within thirty (30) days after the request execution of Lender any renewal or proposed Major Lease, copies of all such further assurancesMajor Leases, confirmations and assignments in connection with (ii) within thirty days of such request, Borrower's certification that it has satisfied all of the Leases as Lender shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance conditions of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender.this Section 5.1.20
Appears in 2 contracts
Samples: Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust)
Leasing Matters. Any Lease executed Leases with respect to the Property written after the date hereof (and any amendment or termination thereof) hereof, for more than 5,000 square feet shall require be subject to the prior written consent approval of Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld, conditioned or delayed. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby Mortgage and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided involved except that in no event shall termination by Borrower terminate or accept the acceptance of surrender of any Lease by a Tenant of any Leases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease covering more than 5,000 square feet will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender Notwithstanding anything to the contrary contained herein, Borrower shall have not enter into a lease of all or substantially all of the right Property without Lender’s prior written consent. Notwithstanding anything to require each the contrary contained herein, all new Tenant Leases and all amendments, modifications, extensions, and renewals of existing Leases with Tenants that are Affiliates of Borrower shall be subject to execute and deliver to Lender a subordination, non-disturbance the prior written consent of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender.
Appears in 2 contracts
Samples: Loan Agreement (TNP Strategic Retail Trust, Inc.), Loan Agreement (TNP Strategic Retail Trust, Inc.)
Leasing Matters. Any (1) If the REO Subsidiary (or Property Manager on behalf of the REO Subsidiary) enters into a Lease executed after Agreement with respect to a Rental Property, the date hereof REO Subsidiary shall ensure that such Lease Agreement (and any amendment or termination thereofi) shall require the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) provide provides for rental rates and terms comparable to existing local market ratesrates and terms, contain reasonable market rate terms (ii) is an arms-length transaction with a bona fide, independent third party Tenant, (iii) does not have a material adverse effect on the value or quality of the related Rental Property, (iv) is written on one of the standard forms of lease approved by Administrative Agent, (v) provides for a rental term that is not less than twelve (12) months and (vi) is in compliance with all applicable law in all material respects. All proposed Lease Agreements which do not contain any terms satisfy the requirements set forth in this Section 14(ii)(1) shall be subject to the prior written approval of Administrative Agent. At Administrative Agent’s or a Buyer’s request, the REO Subsidiary shall promptly deliver to Administrative Agent or such Buyer, as applicable, copies of all Lease Agreements which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after pursuant to this Section 14(ii)(1) together with the date hereof shall provide REO Subsidiary’s certification that they are subordinate to the Security Instrument and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender or any other purchaser it has satisfied all of the Property at a sale by foreclosure conditions of this Section 14(ii)(1).
(or deed in lieu thereof2) or power The REO Subsidiary shall (i) ensure that all of sale. Borrower (a) shall observe and perform the obligations imposed upon the lessor lessee under the Leases in a commercially reasonable mannerapplicable Lease Agreements are observed and performed and shall not do or permit to be done anything to impair the value of any of the applicable Lease Agreements; (bii) shall enforce all of the material terms, covenants and conditions contained in the Leases applicable Lease Agreements upon the part of the Tenant tenant thereunder to be observed or performed performed; (iii) promptly send copies to Administrative Agent of all notices of default or other material matters which the REO Subsidiary sends or receives with respect to the applicable Lease Agreements and (iv) not consent to any assignment of or subletting under any Lease Agreements except in accordance with their respective terms.
(3) The REO Subsidiary shall not amend, modify or waive, or permit the amendment, modification or waiver of, the provisions of any Lease Agreement or terminate, reduce rents under, accept a commercially reasonable manner and in a manner which surrender of space under, or shorten the term of, any Lease Agreement (including any guaranty, letter of credit or other credit support with respect thereto) without obtaining Administrative Agent’s consent except (i) with respect to any such action that does not impair have a material adverse effect on the value of the related Rental Property involvedtaken as a whole or (ii) as the REO Subsidiary (or Property Manager acting on behalf of the REO Subsidiary) may otherwise determine in its reasonable business judgment, and provided that such Lease Agreement, as amended, modified or waived, is otherwise in no event shall Borrower terminate or accept compliance with the surrender requirements of any this Agreement. For the avoidance of doubt, a termination of a Lease by Agreement with a Tenant unless by reason who is in default beyond applicable notice and grace periods shall not be considered an action which has a material adverse effect on the value of the related Rental Property taken as a Tenant default and then only whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in a commercially reasonable manner this Section 14(ii)(3) shall be subject to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent approval of Lender Administrative Agent and its counsel, at the REO Subsidiary’s expense. At Administrative Agent’s or unless a Buyer’s request, the REO Subsidiary shall promptly deliver to Administrative Agent, or such termination Buyer, as applicable, or surrender is specifically provided its designee copies of all such amendments, modifications and waivers which are entered into pursuant to this Section 14(ii)(3).
(4) The REO Subsidiary shall (a) cause each related Tenant, in accordance with the terms of the applicable Lease Agreement to or shall itself, directly or through Property Manager to maintain each Rental Property in good condition and repair (except for in the Leaseordinary wear and tear), (b) promptly repair, replace or rebuild any part of any Rental Property which may be destroyed by any casualty or become damaged, worn or dilapidated or which may be affected by any condemnation; (c) shall not collect complete and pay for any structure at any time in the process of construction or repair on the Rents more than one (1) month in advance (other than security deposits required pursuant to such Lease)related land of any Rental Property; and (d) shall not execute any other assignment otherwise make all commercially reasonable efforts to preserve the value of the lessor’s interest each Rental Property, including re-leasing, liquidating and selling such Rental Property when appropriate in the Leases or the Rents REO Subsidiary’s reasonable business judgment.
(except 5) The REO Subsidiary shall use its reasonable best efforts to Lender pursuant to the Loan Documents); (e) shall not altercause each related Tenant, modify or change in accordance with the terms of the Leases; applicable Lease Agreement to, or shall itself, directly or through Property Manager, ensure that: (x) all uses and operations on or of the Rental Properties are free of Environmental Issues and in compliance with permits issued pursuant thereto and (fy) the Rental Properties shall execute be kept free and deliver at clear of all Liens and other encumbrances that may be imposed as a result of any Environmental Issue, whether due to any act or omission of the request of Lender all such further assurancesREO Subsidiary, confirmations and assignments in connection Tenant or any other person or entity.
(6) In the event that a Tenant under a Rental Property is replaced with the Leases as Lender shall from time to time reasonably require. Lender shall have the right to require each a new Tenant to execute and upon request from Administrative Agent, the REO Subsidiary shall deliver to Lender Custodian a subordinationTenant Instruction Notice duly executed in blank for such new Tenant, non-disturbance together with a copy of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lenderthe related Lease Agreement for such new Tenant.
Appears in 2 contracts
Samples: Master Repurchase Agreement (PennyMac Mortgage Investment Trust), Master Repurchase Agreement (PennyMac Mortgage Investment Trust)
Leasing Matters. Any (a) Borrower may enter into a proposed Lease executed after (including the date hereof renewal or extension of an existing Lease (and any amendment or termination thereofa "Renewal Lease")) shall require that is not a Major Lease without the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all provided such proposed Leases so long as the same Lease or Renewal Lease (ai) provide provides for rental rates and terms comparable to existing local market ratesrates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, contain reasonable market rate terms and do in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arm's-length transaction with a bona fide, independent third party tenant, (iii) does not contain any terms which would materially adversely affect Lender’s rights under the Loan Documentsreasonably be expected to have or do have a Material Adverse Effect, (biv) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, is subject and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument Mortgage and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender and any purchaser at a foreclosure sale, (v) does not contain any option, offer, right of first refusal, right of first offer or other similar right to acquire all or any other purchaser portion of the Property at Property, (vi) has a sale by foreclosure base term of (A) more than three (3) years and (B) less than fifteen (15) years including options to renew and (vii) has no rent, credits, free rents or deed concessions granted thereunder other than those which are reasonable and customary and comparable to existing local market terms. Each Major Lease and all other proposed Leases which do not satisfy the requirements set forth in lieu thereofthis subsection (each a "Required Approval Lease") or power shall be subject to the prior approval of saleLender. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this subsection together with Borrower's certification that it has satisfied all of the conditions of this Section. Borrower shall pay the costs and expenses associated with Lender or its counsel's review of any Lease for which Lender's consent may be required under this Section 5.13.
(ab) Borrower shall (i) observe and perform all the obligations imposed upon the lessor landlord under the Leases in a commercially reasonable mannerall material respects and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (bii) promptly send copies to Lender of all notices of material default which Borrower shall send or receive thereunder; (iii) enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leaseperformed; (civ) shall not collect any of the Rents more than one (1) month in advance (other than except security deposits required pursuant to such Leaseshall not be deemed Rents collected in advance); (dv) shall hold all security deposits in accordance with the terms of the applicable Lease and Legal Requirements; (vi) not execute any other assignment of the lessor’s landlord's interest in any of the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents; and (vii) not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender, such consent not to be unreasonably withheld, conditioned or delayed.
(c) Borrower may, without the prior written consent of Lender, amend, modify or waive the provisions of or terminate, reduce Rents or accept a surrender of space under, or shorten the term of, any Lease which is not a Major Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that (i) such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) is not reasonably expected to have and does not have a Material Adverse Effect, (ii) such action is in the normal course of business and 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, and (iii) such amendment, modification, waiver, termination, rent reduction, space surrender or term shortening, is otherwise in compliance with the requirements of this Agreement and any subordination agreement binding upon Lender with respect to such Lease. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this subsection shall be subject to the prior written approval of Lender (not to be unreasonably withheld or delayed) (each, a "Lease Modification"); , at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this subsection together with Borrower's certification that it has satisfied all of the conditions of this subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, such consent not to be unreasonably withheld, conditioned or delayed, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a surrender of space under, or shorten the term of any Major Lease.
(e) Notwithstanding anything contained herein to the contrary, Borrower shall not alternot, modify without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a surrender of space under, or change shorten the terms term of the Leases; and (f) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and deliver to Lender any Lease during a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to LenderCash Sweep Period.
Appears in 2 contracts
Samples: Loan Agreement (MVP REIT, Inc.), Loan Agreement (MVP REIT II, Inc.)
Leasing Matters. Any (a) Borrower may enter into a proposed Lease executed after (including the date hereof renewal or extension of an existing Lease (and any amendment or termination thereofa "RENEWAL LEASE")) shall require without the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all provided such proposed Leases so long as the same Lease or Renewal Lease (ai) provide provides for rental rates and terms comparable to existing local market ratesrates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, contain reasonable market rate terms and do not contain any terms which would materially adversely affect Lender’s rights under in the Loan Documentscase of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (bii) are for is an arm's-length transaction with a lease term not exceeding one yearbona fide, including all extensionsindependent third party tenant, (ciii) are with individualdoes not have a materially adverse effect on the value of the Property taken as a whole, residential, non-commercial tenants, (iv) is subject and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument Deed of Trust and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender Lender, (v) does not contain any option, offer, right of first refusal, or other similar right to acquire all or any other purchaser portion of the Property Property, (vi) has a base term of less than fifteen (15) years including options to renew, (vii) has no rent, credits, free rents or concessions granted thereunder, other than commercially reasonable tenant improvement allowances and commercially reasonable rent abatements consistent with other comparable leases within the local market and (viii) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this subsection shall be subject to the prior approval of Lender and its counsel, at a sale by foreclosure (or deed in lieu thereof) or power of saleBorrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this subsection together with Borrower's certification that it has satisfied all of the conditions of this Section.
(ab) Borrower (i) shall observe and perform all the obligations imposed upon the lessor landlord under the Leases in a commercially reasonable mannerand shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (bii) shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leaseperformed; (civ) shall not collect any of the Rents more than one (1) month in advance (other than except security deposits required pursuant to such Leaseshall not be deemed Rents collected in advance); (dv) shall not execute any other assignment of the lessor’s landlord's interest in any of the Leases or the Rents Rents; and (except to Lender pursuant to the Loan Documents); (evi) shall not alterconsent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or change waive the terms provisions of any Lease or terminate, reduce Rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the Leases; affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and (f) provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Agreement and any subordination agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall execute and deliver at not be considered an action which has a materially adverse effect on the request value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this subsection shall be subject to the prior approval of Lender all such further assurancesand its counsel, confirmations and assignments in connection with the Leases as Lender at Borrower's expense. Borrower shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this subsection together with Borrower's certification that it has satisfied all of the conditions of this subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a subordinationsurrender of space under, non-disturbance or shorten the term of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lenderany Major Lease.
Appears in 2 contracts
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc), Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Leasing Matters. Any Lease Until such time as the Vacant Space is fully rented and occupied by tenants paying rent under New Vacant Space Leases approved by Lender, all Leases executed after the date hereof (hereof, and any amendment all modifications, renewals or termination thereof) terminations of existing Leases, shall require the prior written consent of be approved by Lender, which consent approval shall not be unreasonably withheld, conditioned or delayed. After all the Vacant Space has been so rented, any new Major Leases and any Lease modification or renewal that causes an existing Lease to become a Major Lease, shall be in approved by Lender’s sole and absolute discretion, which approval shall not be unreasonably withheld, conditioned or delayed. Borrower Upon request, Borrowers shall cause Mortgage Borrowers to furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby Mortgage and that the Tenant thereunder lessee agrees to attorn to Mortgage Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower Borrowers shall cause Mortgage Borrowers to (a) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (b) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided Properties or any part thereof involved except that in no event shall termination by any Mortgage Borrower terminate or accept the acceptance of surrender by a tenant of any Lease by a Tenant Leases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the PropertyProperties; provided, however, that until such time as the Vacant Space is fully rented and occupied by tenants paying Rent under New Vacant Space Leases approved by Lender, no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless Lender, and after all the Vacant Space is so rented, no such termination or surrender is specifically provided for in will be allowed with respect to any Major Lease without the Leaseconsent of Lender; (c) shall not collect any of the Rents or the Vacant Space Rent more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (d) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents or the Vacant Space Rent (except to Lender pursuant to as contemplated by the Mortgage Loan Documents); (e) shall not alter, modify or change the terms of any Lease in a manner inconsistent with the Leasesprovisions of the Loan Documents or the Mortgage Loan Documents nor alter, modify or change the terms of the Master Leases or any Major Lease, without the prior written consent of Lender; and (f) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender Notwithstanding anything to the contrary contained herein, no Borrower shall have cause or permit any Mortgage Borrower to enter into a lease of all or substantially all of either Property or the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Properties without Lender’s prior written consent.
Appears in 2 contracts
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.)
Leasing Matters. Any (a) Borrower may enter into a proposed Lease executed after (including the date hereof renewal or extension of an existing Lease (and any amendment or termination thereofa “Renewal Lease”)) shall require that is not a Major Lease without the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all ; provided such proposed Leases so long as the same Lease or Renewal Lease (ai) provide provides for rental rates and terms comparable to the then effective existing local market ratesrates and terms (taking into account the type and creditworthiness of the tenant, contain reasonable market rate terms the length of the term including any renewals, and do the location and size of the premises covered thereby) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arm’s‑length transaction with a bona fide, independent third party tenant, (iii) does not contain any terms which would materially adversely affect Lender’s rights under the Loan Documentsreasonably be expected to have or do have a Material Adverse Effect, (biv) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, is subject and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument applicable Mortgage and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender and any purchaser at a foreclosure sale, which may be conditioned upon Lender’s obligation to recognize and not disturb such Tenant, (v) does not contain any option, offer, right of first refusal, right of first offer or other similar right to acquire all or any portion of any Individual Property, unless subject to a subordination to the Mortgage and such rights are not applicable at the time of a foreclosure sale, (vi) has a base term of (A) more than three (3) years and (B) less than fifteen (15) years including options to renew, (vii) has no rent, credits, free rents or concessions granted thereunder other purchaser than those which are reasonable and customary and comparable to existing local market terms,, and (viii) is written on the standard form of lease approved by Lender (the “Standard Form of Lease”) (it being acknowledged by Lender that the form of Lease delivered in connection with the closing of the Property at Loan is approved) with such customary modifications as would not reasonably be expected to have nor does have a sale by foreclosure Material Adverse Effect. Each Major Lease and all other proposed Leases which do not satisfy the requirements set forth in this subsection (each a “Required Approval Lease”) shall be subject to the prior approval of Lender, which shall not be unreasonably withheld, conditioned or deed delayed; provided however, to the extent that the Deemed Approval Requirements are fully satisfied in lieu thereofconnection with any Borrower request for Lender consent under this Section 5.13(a) or power of saleand Lender thereafter fails to respond, Lender’s approval shall be deemed given with respect to the matter for which approval was requested. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this subsection together with Borrower’s certification that it has satisfied all of the conditions of this Section. Borrower shall pay the actual out-of-pocket costs and expenses (aincluding reasonable attorneys’ fees) associated with Lender or its counsel’s review of any Lease for which Lender’s consent may be required under this Section 5.13.
(b) Borrower shall (i) use commercially reasonable efforts to observe and perform all the obligations imposed upon the lessor landlord under the Leases in all material respects and shall not do or permit to be done anything to result in a Material Adverse Effect; (ii) promptly send copies to Lender of all written notices of material default which Borrower shall send or receive thereunder; (iii) use commercially reasonable manner; (b) shall efforts to enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leaseperformed; (civ) shall not collect any of the Rents more than one (1) month in advance (other than except security deposits required pursuant to such Leaseshall not be deemed Rents collected in advance); (dv) shall hold all security deposits in accordance with the terms of the applicable Lease and Legal Requirements; (vi) not execute any other assignment of the lessorlandlord’s interest in any of the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); and (evi) not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender, such consent not to be unreasonably withheld, conditioned or delayed; provided however, to the extent that the Deemed Approval Requirements are fully satisfied in connection with any Borrower request for Lender consent under this Section 5.13(b) and Lender thereafter fails to respond, Lender’s approval shall not alterbe deemed given with respect to the matter for which approval was requested.
(c) Borrower may, without the prior written consent of Lender, amend, modify or change waive the terms provisions of or terminate, reduce Rents or accept a surrender of space under, or shorten the term of, any Lease which is not a Major Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that (i) such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the Leases; affected space) is not reasonably expected to have and does not have a Material Adverse Effect, (ii) such action is in the normal course of business and in a manner which is consistent with sound and customary leasing and management practices for similar properties in the community in which applicable Individual Property is located, and (fiii) such amendment, modification, waiver, termination, rent reduction, space surrender or term shortening, is otherwise in compliance with the requirements of this Section 5.13 and any subordination agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in monetary default beyond applicable notice and grace periods shall execute not be considered an action which has a Material Adverse Effect. Borrower may terminate a Major Lease with a tenant who is in default beyond applicable notice and deliver at grace periods without the request prior written notice or approval of Lender all such further assurancesprovided no Cash Sweep Period is continuing. Any amendment, confirmations and assignments modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this subsection shall be subject to the prior written approval of Lender (not to be unreasonably withheld or delayed) (each, a “Lease Modification”), at Borrower’s expense; provided however, to the extent that the Deemed Approval Requirements are fully satisfied in connection with any Borrower request for Lender consent under this Section 5.13(c) and Lender thereafter fails to respond, Lender’s approval shall be deemed given with respect to the Leases as Lender matter for which approval was requested, except that, under no circumstances shall from time Lender’s approval be deemed to time reasonably requireapply to the cancellation or termination of a Lease, the reduction of Rents (unless such reduction is in connection with an extension of the Lease consistent with market conditions), the acceptance of a surrender of space, the shortening of the term of a Lease or a modification of a Lease that is not commercially reasonable. Lender Borrower shall have the right to require each new Tenant to execute and promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this subsection together with Borrower’s certification that it has satisfied all of the conditions of this subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, such consent not to be unreasonably withheld, conditioned or delayed, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a subordinationsurrender of space under, or shorten the term of any Major Lease; provided however, to the extent that the Deemed Approval Requirements are fully satisfied in connection with any Borrower request for Lender consent under this Section 5.13(d) and Lender thereafter fails to respond, Lender’s approval shall be deemed given with respect to the matter for which approval was requested, except that, under no circumstances shall Lender’s approval be deemed to apply to the cancellation or termination of a Lease, the reduction of Rents (unless such reduction is in connection with an extension of the Lease consistent with market conditions), the acceptance of a surrender of space, the shortening of the term of a Lease or a modification of a Lease that is not commercially reasonable.
(a) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a surrender of space under, or shorten the term of any Lease during a Cash Sweep Period.
(b) The Lender or its Servicer shall not charge an amount greater than $7,500 in connection with any Lease approval or greater than $2,500 with respect to a requested subordination non-disturbance agreement (in both instances, including reasonable fees and disbursements of possession and attornment Lender’s outside counsel). The request for Lender to execute a subordination non-disturbance agreement in form, content and manner shall not give Lender a right of execution reasonably acceptable to Lenderapproval of the Lease that it does not otherwise have hereunder.
Appears in 2 contracts
Samples: Loan Agreement (Griffin Capital Essential Asset REIT II, Inc.), Loan Agreement (Griffin Capital Essential Asset REIT, Inc.)
Leasing Matters. Any Lease executed after the date hereof (and any amendment or termination thereofa) shall require Other than as provided in Section 5.1.17(b), Borrower may not, without the prior written consent of Lender, enter into, amend, modify or waive the provisions of any material provisions of any Lease, including, but not limited to, provisions relating to the term, the rental obligations of the Operating Tenant or Tenant thereunder or any other economic provisions of the Operating Lease or any Lease (other than an Immaterial Lease) or terminate, reduce Rents under, accept a surrender of space under, or shorten the term of, any Lease (other than an Immaterial Lease), including, without limitation, the Operating Leases and the Qualified Assignee Leases (including any guaranty, letter of credit or other credit support with respect thereto).
(b) Subject to the Square Footage Limitations and the other provisions hereof, Borrower may allow Operating Tenant to assign portions of the Operating Leases; provided, that no more than ten percent (10%) of the retail space (by square footage) may be assigned to a Tenant that is not a national or regional retailer. In connection with such assignment, (i) Operating Tenant may be relieved of its obligations under that portion of the Operating Lease so assigned and (ii) any such assignment shall not require the consent of Lender, so long as, in the case of (i) and (ii) above, Lender has received evidence that the assignee (or a Person) meets the Assignment Requirements (a “Qualified Assignee”). The lease entered into by the Qualified Assignee with Borrower shall have substantially the same terms as the Operating Lease, (except for such provisions which consent by their terms are not applicable to such Property being assigned) including, but not limited to, the same remaining lease term, rent escalations, covenants, escrows and reserves, financial reporting requirements, etc., with a rental rate equal to or greater than the Determined Minimum Rent (a “Qualified Assignee Lease”). In connection with such assignment and release, the Operating Lease shall be in Lender’s sole amended to reflect the release of such property and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender the monthly rental rate under such Operating Lease shall be deemed reduced as provided in the Operating Lease; provided, however, that the following shall not constitute an assignment of the Operating Lease: (1) a transfer to have approved all renewals any entity into which or with which Tenant, its successors or assigns, is merged or consolidated, in accordance with the applicable statutory provisions of Leases and all proposed Leases merger or consolidation of entities, so long as the same liabilities of the entities participating in such merger or consolidation are assumed by the entity surviving such merger or created by such consolidation, (a2) provide for rental rates comparable a sale of substantially all of the stock of Operating Tenant, (3) a sale of substantially all of the assets of Operating Tenant to existing local market ratesa single entity that expressly assumes the Operating Lease, contain reasonable market rate terms (4) a transfer of Tenant’s entire interest in this Lease to any entity in connection with intercompany corporate transfers whose ownership is controlled by Tenant or Tenant’s parent or ultimate parent; or (5) a transfer of Tenant’s entire interest in this Lease to any entity which has the power to direct Tenant’s management and do not contain operation, or any terms which would materially adversely affect Lenderentity whose management and operation is controlled by Tenant or Tenant’s parent or ultimate parent is under common control with Tenant or Tenant’s parent or ultimate parent; (6) a transfer of Tenant’s entire interest in this Lease to any entity, a majority of whose voting rights are owned by Tenant or Tenant’s parent or ultimate parent; or (7) a similar transaction to those described in (1) through (6) above. With respect to each of the transactions described in items (4), (5), (6) and a similar intercompany transaction, described above in this Section 5.1.17(b), Tenant shall remain liable under the Loan DocumentsLease. With respect to the transactions described in items (1), (b2), (3) are and a similar corporate transaction described above in this Section 5.1.17(b), Tenant’s obligations under the Lease shall terminate entirely, and Tenant shall be released of any liability under the Lease, except for a lease term not exceeding one year, including all extensions, the liabilities of Tenant which accrued prior to the date of such transaction.
(c) are with individualIn addition, residentialsubject to the Square Footage Limitation and the other provisions hereof, Borrower may allow Operating Tenant the free right to sublet any portion of the Properties and any such subletting shall not require the consent of Lender. Any such subletting shall in no way relieve Operating Tenant of its obligations under the Operating Lease. Lender shall execute and deliver a subordination and non-commercial tenantsdisturbance agreements on a form substantially in the form attached hereto as Exhibit D if (i) the rent under the sublease is a rental rate equal to or greater than the Determined Minimum Rent and all other terms of the sublease were negotiated on an arm’s length basis, (ii) the terms of the sublease shall have substantially the same terms as the Operating Lease, including, but not limited to, the same remaining lease term, rent escalations, covenants, escrows and reserves, financial reporting requirements, etc. (except for such provisions which by their terms are not applicable to such Property being sublet), (iii) the subtenant (or person that guarantees the obligations of a subtenant) is a Qualified Subtenant, and (iv) the sublease contains no other material provisions that (I) benefit the subtenant and are unusual for a market sublease, and (II) are materially adverse to a landlord. For avoidance of doubt, the payment by Operating Tenant to a subtenant of a tenant allowance at the execution of the sublease shall not be considered unusual.
(d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (ai) shall observe and perform all the obligations imposed upon the lessor landlord under the Leases in a commercially reasonable mannerand shall not do or permit to be done anything to impair the value of such Leases as security for the Debt; (bii) shall promptly send copies to Lender of all notices of default which Borrower shall receive under the Leases; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the applicable Tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leaseperformed; (civ) shall not collect any of the Rents more than one (1) month in advance (other than security deposits required pursuant to such Lease)advance; (dv) shall not execute any other assignment of the lessorlandlord’s interest in the Leases or the Rents Rents; and (except vi) other than with respect to Lender pursuant to the Loan Documents); (e) shall not alter, modify or change assignments and subleases in accordance with the terms of the Leases; Section 5.1.1.7 (b) and (fc) hereof, shall execute not consent to any assignment of or subletting under any Lease not in accordance with its terms, without the prior written consent of Lender, but, other than an expressly provided herein, the obligations and deliver at liabilities of the request applicable Tenant under the applicable Lease shall not be reduced or modified as a result of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lenderassignment or sublease.
Appears in 2 contracts
Samples: Loan Agreement (Spirit Finance Corp), Loan Agreement (Spirit Finance Corp)
Leasing Matters. (a) Any Lease Major Lease, including any amendment, modification or supplement thereto, executed after the date hereof (and any amendment or termination thereof) Closing Date shall require be subject to the prior written consent approval of LenderAdministrative Agent, which approval shall not be unreasonably withheld. Notwithstanding the foregoing, Administrative Agent’s consent shall not be required in Lender’s sole and absolute discretionconnection with any Preapproved Leases. Upon request, Borrower shall furnish Lender Administrative Agent with true, correct and complete executed copies of such Leases as are identified by Administrative Agent (including all Leases, amendments thereof and if requested by Administrative Agent, provided that Borrower shall not be required to deliver copies of all Leases more frequently than two (2) times in any related agreementscalendar year). Without limitationUnless approved, and as applicableconsented to or waived in writing by Administrative Agent, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates and other terms comparable or superior to then-existing local market ratesrates for similarly situated properties. All proposed Leases shall be on commercially reasonable terms, contain reasonable market rate terms and do shall not contain any terms which would have any materially adversely affect Lender’s adverse effect on Administrative Agent or Lenders’ rights under the Loan DocumentsDocuments or the value of the applicable Individual Property and shall not be with Affiliates of Borrower (unless it is on terms which are substantially similar to those available in an arm’s length transaction with an unrelated party). Unless approved, (b) are for a lease term not exceeding one yearconsented to or waived in writing by Administrative Agent, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof Closing Date shall provide that they are subordinate to the Security Instrument and Mortgage encumbering the Liens created thereby applicable Individual Property and that the Tenant thereunder agrees to attorn to Lender Administrative Agent or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Administrative Agent, at the request of Borrower, shall enter into a subordination, attornment and non-disturbance agreement in the form attached hereto as Exhibit B (with such modifications thereto as may be reasonably acceptable to Administrative Agent) or in such other form that is reasonably satisfactory to Administrative Agent and such Tenant (provided in each case that Administrative Agent shall agree to modifications reasonably required to reflect an obligation on behalf of Administrative Agent to release any casualty or condemnation proceeds in connection with any restoration required pursuant to a Material Lease) (a “Non-Disturbance Agreement”) with any Tenant entering into a Material Lease, including a Major Lease (other than a Lease to an Affiliate of Borrower), after the Closing Date. All actual and reasonable, out-of-pocket costs and expenses of Administrative Agent and Servicer in connection with the negotiation, preparation, execution and delivery by Administrative Agent and Servicer of any Non-Disturbance Agreement, including, without limitation, reasonable attorneys’ fees and disbursements and the current fee being assessed by Servicer in connection therewith, shall be paid by Borrower.
(b) Unless approved, consented to or waived in writing by Administrative Agent, Borrower shall (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Individual Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Lease; (c) shall not collect any of the Rents more than one (1) month in advance (other than security deposits required pursuant to such Lease); (d) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to the Loan Documents); (e) shall not alter, modify or change the terms of the Leases; involved and (fiii) shall execute and deliver at the request of Lender Administrative Agent all such further assurances, confirmations and assignments in connection with the Material Leases and Major Leases as Lender Administrative Agent shall from time to time reasonably require.
(c) Administrative Agent shall grant or deny with a reasonable explanation any consent required hereunder within seven (7) Business Days after the receipt of the applicable request and all documents in connection therewith. Lender In the event that Administrative Agent fails to respond within said seven (7) Business Day period, such failure shall have be deemed to be the right consent and approval of Administrative Agent if (A) Borrower has resubmitted to require each new Tenant to execute Administrative Agent the applicable documents, with the notation “IMMEDIATE RESPONSE REQUIRED, FAILURE TO RESPOND TO THIS APPROVAL REQUEST WITHIN SEVEN (7) BUSINESS DAYS FROM RECEIPT SHALL BE DEEMED TO BE ADMINISTRATIVE AGENT’S APPROVAL” prominently displayed in bold, all caps and deliver to Lender fourteen (14) point or larger font in the transmittal letter requesting approval and (B) Administrative Agent does not approve or reject (with a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lenderreasonable explanation) the applicable request within seven (7) Business Days from the date Administrative Agent receives such second request as evidenced by a certified mail return receipt or confirmation by a reputable national overnight delivery service that the same has been delivered.
Appears in 2 contracts
Samples: Loan Agreement (Excel Trust, L.P.), Loan Agreement (Excel Trust, L.P.)
Leasing Matters. Any (a) With respect to any Individual Property, Borrower or Operating Tenant may enter into a proposed Lease executed after (including the date hereof renewal or extension of an existing Lease, other than an Operating Lease, (and any amendment or termination thereofa “Renewal Lease”)) shall require without the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with trueprovided that if such proposed Lease or Renewal Lease is a Major Lease, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same such Major Lease (ai) provide provides for rental rates and terms comparable to existing local market ratesrates and terms (taking into account the type and quality of the tenant) as of the date such Major Lease is executed by Borrower (unless, contain reasonable market rate terms and do not contain any terms which would materially adversely affect Lender’s rights under in the Loan Documentscase of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (bii) are for is an arms-length transaction with a lease term not exceeding one yearbona fide, including all extensionsindependent third party tenant, (ciii) are with individual, residential, non-commercial tenantsdoes not have a material adverse effect on the value or quality of the applicable Individual Property, and (div) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are is subject and subordinate to the related Security Instrument and the Liens created thereby and that the Tenant lessee thereunder agrees to attorn to Lender. All proposed Major Leases which do not satisfy the requirements set forth in this Section 5.1.17(a) shall be subject to the prior approval of Lender, which approval shall not be unreasonably withheld. At Lender’s request, Borrower and Operating Tenant, as applicable, shall promptly deliver to Lender or any other purchaser copies of all Major Leases which are entered into pursuant to this Subsection together with Borrower’s certification that it has satisfied all of the Property at a sale by foreclosure conditions of this Section.
(or deed in lieu thereofb) or power of sale. Borrower and Operating Tenant (ai) shall observe and perform all the material obligations imposed upon the lessor under the Major Leases in a commercially reasonable mannerand shall not do or permit to be done anything to impair the value of any of the Major Leases as security for the Debt; (bii) shall promptly send copies to Lender of all notices of default or other material matters which Borrower shall send or receive with respect to the Major Leases; (iii) shall enforce all of the material terms, covenants and conditions contained in the Major Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason (except for termination of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Major Lease will be permitted without the which shall require Lender’s prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leaseapproval); (civ) shall not collect any of the Rents more than one (1) month in advance (other than except security deposits required pursuant to such Leaseshall not be deemed Rents collected in advance); (dv) shall not execute any other assignment of the lessor’s interest in any of the Major Leases or the Rents Rents; and (except to Lender pursuant to the Loan Documents); (evi) shall not alterconsent to any assignment of or subletting under any Major Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower and Operating Tenant may, without the consent of Lender, amend, modify or change waive the terms provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (other than the Operating Lease) (including any guaranty, letter of credit or other credit support with respect thereto) provided that such Lease is not a Major Lease and that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the Leases; affected space) does not have a material adverse effect on the value of the applicable Individual Property taken as a whole, and (f) shall execute and deliver at the request of Lender all provided that such further assurancesLease, confirmations and assignments as amended, modified or waived, is otherwise in connection compliance with the Leases requirements of this Agreement and any lease subordination agreement binding upon Lender with respect to such Lease. A termination of a Lease (other than a Major Lease) with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a material adverse effect on the value of the applicable Individual Property taken as Lender a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall from time be subject to time reasonably requirethe prior written approval of Lender, which approval shall not be unreasonably withheld and its counsel, at Borrower’s expense. Lender shall have the right to require each new Tenant to execute At Lender’s request, Borrower and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender.Operating Tenant,
Appears in 2 contracts
Samples: Loan Agreement (Meristar Hospitality Operating Partnership Lp), Loan Agreement (Meristar Hospitality Corp)
Leasing Matters. Any (a) Borrower may enter into a proposed Lease executed after (including the date hereof renewal or extension of an existing Lease (and any amendment or termination thereofa "RENEWAL LEASE")) shall require without the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all provided such proposed Leases so long as the same Lease or Renewal Lease (ai) provide provides for rental rates and terms comparable to existing local market ratesrates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, contain reasonable market rate terms and do not contain any terms which would materially adversely affect Lender’s rights under in the Loan Documentscase of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (bii) are for is an arm's-length transaction with a lease term not exceeding one yearbona fide, including all extensionsindependent third party tenant, (ciii) are with individualdoes not have a materially adverse effect on the value of the Property taken as a whole, residential, non-commercial tenants, (iv) is subject and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument Mortgage and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender Lender, either by the terms of such Renewal Lease or pursuant to a subordination, non-disturbance and attornment agreement on Lender's then current form (v) does not contain any option, offer, right of first refusal, or other similar right to acquire all or any other purchaser portion of the Property, (vi) has a base term of less than fifteen (15) years including options to renew, (vii) has no rent credits, free rents or concessions granted thereunder, other than as consistent with then market standards for prudent institutional owners of Class A office buildings in the sub-market where the Property is located, and (viii) is written on the standard form of lease approved by Lender and attached hereto as Exhibit C, subject to tenant specific negotiated changes which do not, individually or in the aggregate, cause a Material Adverse Change with respect to the Property or the financial condition of Borrower. All proposed Leases which do not satisfy the requirements set forth in this subsection shall be at a sale by foreclosure (Borrower's expense and subject to the prior approval of Lender and its counsel, such consent not to be unreasonably withheld or deed in lieu thereof) or power of saledelayed. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this subsection together with Borrower's certification that it has satisfied all of the conditions of this Section.
(ab) Borrower (i) shall observe and perform all the obligations imposed upon the lessor landlord under the Leases (or refrain from such observance or performance to the extent the same is in a commercially reasonable manneraccordance with prudent institutional ownership practices for properties similar to and in the same sub-market as Property) and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (bii) shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed unless Borrower, in a commercially reasonable manner accordance with prudent institutional ownership practices for properties similar and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect same sub-market as the Property; provided, howeverelects not to enforce any such term, that no such termination covenant or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leasecondition; (civ) shall not collect any of the Rents more than one (1) month in advance (other than except security deposits required pursuant to such Leaseshall not be deemed Rents collected in advance); (dv) shall not execute any other assignment of the lessor’s landlord's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender, such consent not to be unreasonably withheld, conditioned or delayed.
(c) Borrower may, without the prior written consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce Rents under, accept a surrender of space under, or shorten the term of, any Lease (except including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Agreement and any subordination agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this subsection shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this subsection together with Borrower's certification that it has satisfied all of the Loan Documents); conditions of this subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any material provisions of, terminate, reduce Rents under, accept a surrender of space under, or shorten the term of any Major Lease.
(e) shall not alterNotwithstanding anything to the contrary contained herein, modify or change to the terms of the Leases; and (f) shall execute and deliver at the request of Lender all such further assurancesextent Lender's prior approval is required for any leasing matters set forth in this Section 5.13, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have the right ten (10) Business Days from receipt of written request and all required information and documentation relating thereto in which to require each new Tenant to execute and deliver approve or disapprove such matter, provided that such request to Lender a subordinationis marked in capitalized bold lettering with the following language: "LENDER'S RESPONSE IS REQUIRED WITHIN TEN (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 request must be marked "PRIORITY- LENDER'S RESPONSE REQUIRED IN TEN (10) BUSINESS DAYS". In the event that Lender fails to respond to the leasing matter in question within such time, non-disturbance of possession Lender's approval shall be deemed given for all purposes. Borrower shall provide Lender with such information and attornment agreement in formdocumentation as may be reasonably required by Lender, content including, without limitation, lease comparables and manner of execution reasonably acceptable to other market information as required by Lender.
Appears in 2 contracts
Samples: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Leasing Matters. Any Lease executed Major Leases with respect to an Individual Property written after the date hereof (and any amendment or termination thereof) shall require the prior written consent of be approved by Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld, conditioned or delayed. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and Mortgage encumbering the Liens created thereby applicable Individual Property and that the Tenant thereunder lessee agrees to attorn to Mortgage Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower shall cause Mortgage Borrower and Operating Lessee to (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Individual Property involved, provided involved except that in no event shall termination by Mortgage Borrower terminate or accept the acceptance of surrender by a tenant of any Lease by a Tenant Leases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Individual Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Lease; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Mortgage Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Mortgage Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender Notwithstanding anything to the contrary contained herein, Borrower shall have the right not cause or permit Mortgage Borrower and Operating Lessee to require each new Tenant to execute and deliver to Lender enter into a subordination, non-disturbance lease of possession and attornment agreement in form, content and manner all or substantially all of execution reasonably acceptable to any Individual Property without Lender’s prior written consent.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Sunstone Hotel Investors, Inc.), Junior Mezzanine Loan Agreement (Sunstone Hotel Investors, Inc.)
Leasing Matters. Any (a) With respect to any Individual Property, Borrower may enter into a proposed Lease executed after (including the date hereof renewal or extension of an existing Lease (and any amendment or termination thereofa “Renewal Lease”)) shall require without the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all provided such proposed Leases so long as the same Lease or Renewal Lease (ai) provide provides for rental rates and terms comparable to existing local market ratesrates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, contain reasonable market rate terms and do not contain any terms which would materially adversely affect Lender’s rights under in the Loan Documentscase of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (bii) are for is an arms-length transaction with a lease term not exceeding one yearbona fide, including all extensionsindependent third party tenant, (ciii) are with individualdoes not have a material adverse effect on the value or quality of the applicable Individual Property, residential, non-commercial tenants, (iv) is subject and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the related Security Instrument and the Liens created thereby and that the Tenant lessee thereunder agrees to attorn to Lender, (v) is written on the standard form of lease approved by Lender with such modifications thereto which are commercially reasonable given the then current market conditions with respect to the relevant Individual Property and which do not adversely affect Borrower’s interests under the Lease or any other purchaser the value of the Property at relevant Individual Property, (vi) is not a sale by foreclosure Major Lease and (vii) after giving effect to such Lease, the Debt Service Coverage Ratio shall be equal to or deed greater than 1.05 to 1.0. All proposed Leases which do not satisfy the requirements set forth in lieu thereofthis Section 5.1.17(a) shall be subject to the prior approval of Lender, which approval shall not be unreasonably withheld, conditioned or power delayed. At Lender’s request, Borrower shall promptly deliver to Lender copies of sale. all Leases which are entered into pursuant to this Subsection together with Borrower’s certification that it has satisfied all of the conditions of this Section.
(b) Borrower (ai) shall observe and perform all the obligations imposed upon the lessor under the Leases in a commercially reasonable mannerand shall not do or permit to be done anything to materially impair the value of any of the Leases as security for the Debt; (bii) shall promptly send copies to Lender of all notices of default or other material matters which Borrower shall send or receive with respect to the Leases; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason (except for termination of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Major Lease will be permitted without the which shall require Lender’s prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leaseapproval); (civ) shall not collect any of the Rents more than one (1) month in advance (other than security deposits required pursuant to such Leaseexcept Security Deposits shall not be deemed Rents collected in advance); (dv) shall, immediately upon receipt, deposit all Lease Termination Payments into the Rollover Reserve Fund, (vi) shall not execute any other assignment of the lessor’s interest in any of the Leases or the Rents Rents; and (except to Lender pursuant to the Loan Documents); (evii) shall not alterconsent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed.
(c) Borrower may, without the consent of Lender, amend, modify or change waive the terms provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that (i) such Lease is not a Major Lease, (ii) such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the Leases; affected space) does not have a material adverse effect on the value of the applicable Individual Property taken as a whole, (iii) such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Agreement and any lease subordination agreement binding upon Lender with respect to such Lease and (fiv) after giving effect to such action, the Debt Service Coverage Ratio shall execute be equal to or greater than 1.05 to 1.0. A termination of a Lease (other than a Major Lease) with a tenant who is in default beyond applicable notice and deliver at grace periods shall not be considered an action which has a material adverse effect on the request value of the applicable Individual Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior written approval of Lender all such further assurancesand its counsel, confirmations and assignments in connection with the Leases as Lender at Borrower’s expense. At Lender’s request, Borrower shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and promptly deliver to Lender a subordinationcopies of all Leases, non-disturbance of possession amendments, modifications and attornment agreement in form, content and manner of execution reasonably acceptable waivers which are entered into pursuant to Lender.this Section 5.1.17
Appears in 2 contracts
Samples: Loan Agreement (KBS Real Estate Investment Trust, Inc.), Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Leasing Matters. Any Lease (a) All Leases and all renewals of Leases executed after the date hereof shall (and any amendment or termination thereof) shall require the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (ai) provide for economic terms, including rental rates rates, comparable to existing local market ratesrates for similar properties, contain (ii) be on commercially reasonable market rate terms terms, (iii) have a term of not less than five (5) years (unless Lender approves in writing a shorter term), (iv) have a term of not more than fifteen (15) years, including all extensions and do renewals (unless Lender approves in writing a longer term), (v) provide that such Lease is subordinate to the Security Instrument and the Assignment of Leases and that the Tenant thereunder will attorn to Lender and any purchaser at a foreclosure sale, (vi) be with Tenants that are creditworthy as determined by Borrower in the exercise of prudent property management practices, (vii) be written substantially in accordance with a standard form of Lease which shall have been approved in writing by Lender (subject to any commercially reasonable changes made in the course of negotiations with the applicable Tenant), (viii) not be with any Affiliate of Borrower, Guarantor or Manager, and (ix) not contain any option to purchase, any right of first option to purchase, any right of first refusal to purchase, any right to terminate, any requirement for a non-disturbance or recognition agreement, or any other terms which would are reasonably likely to materially adversely affect Lender’s rights under the Loan Documents; provided that, in connection with extensions or renewals of Leases existing on the date hereof, any applicable term that would otherwise breach the requirements set forth in this Section 5.1.20(a) shall be permitted to the extent necessary to implement an extension or renewal term expressly contained in the applicable Lease and with respect to which Borrower has no discretion. Any non-compliance with the foregoing requirements shall require Lender’s prior written approval, which shall not be unreasonably withheld or delayed.
(b) are for Notwithstanding the foregoing clause (a) to the contrary, Borrower may not enter into Major Leases or modify existing Major Leases demising all or any portion of the Property without the prior written approval of Lender, such consent not to be unreasonably withheld. Notwithstanding the foregoing, if a lease term Major Tenant enters into Lease or modifies a Lease (including, without limitation, a sublease or an assignment) with respect to all or a portion of its rights under a Major Tenant Lease without obtaining Borrower’s prior consent pursuant to a right granted to such Major Tenant under such Major Tenant Lease, such action by Major Tenant shall not exceeding one yearbe deemed to violate this Agreement. For sake of clarity, including all extensions, the foregoing shall not give Borrower and/or Major Tenant a right to modify or terminate a Major Tenant Lease without the prior written approval of Lender.
(c) are To the extent Lender’s written approval is required pursuant to this Section 5.1.20 to any modification of a Lease (excluding a modification that reduces rent or the term of a Lease, or grants any option to terminate or to purchase the Property), Borrower’s written request therefor shall be delivered together with individualsuch materials reasonably requested by Lender in order to evaluate such request (it being acknowledged and agreed that no request for consent shall be effective unless and until such materials have been delivered to Lender) and shall conspicuously state, residentialin large bold type, non-commercial tenantsthat “PURSUANT TO SECTION 5.1.20 OF THE LOAN AGREEMENT, and THIS IS A REQUEST FOR LENDER’S CONSENT. LENDER’S RESPONSE IS REQUESTED WITHIN TEN (10) BUSINESS DAYS. LENDER’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD WILL ENABLE BORROWER TO DELIVER A SECOND NOTICE REQUESTING LENDER’S CONSENT”. In the event Lender fails to approve or disapprove to such request within ten (10) Business Days’ of the effective date of such initial request, Borrower may deliver to Lender a second written request for approval, which second written request for approval shall conspicuously state, in large bold type, that “THIS IS A REQUEST FOR LENDER’S CONSENT. LENDER’S CONSENT IS REQUESTED WITHIN FIVE (5) BUSINESS DAYS. THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN FIVE (5) BUSINESS DAYS’ OF LENDER’S RECEIPT OF THIS WRITTEN NOTICE”. In the event that Lender fails to approve or disapprove the second written request within such five (5) Business Day period, then Lender’s consent shall be deemed to have been granted.
(d) have been entered into Borrower shall furnish Lender with executed copies of all Leases and a copy of the executed Tenant Direction Letter signed by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate and to the Security Instrument and extent available, the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure Tenant.
(or deed in lieu thereofe) or power of sale. Borrower (ai) shall observe and perform the obligations imposed upon the lessor Borrower, as lessor, under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Major Tenant Lease and any other Leases to which Borrower is a party upon the part of the Tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involvedinvolved except that, provided that in subject to the terms of this Section 5.1.20, no event shall termination by Borrower terminate or accept the acceptance of surrender of any Lease by a tenant under the Major Tenant unless by reason of Lease or any other Leases to which Borrower is a party (and for which Major Tenant default and then only in a commercially reasonable manner would not continue to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be bound) shall be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for which consent may be withheld in the Leasesole discretion of Lender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesMajor Tenant Lease or any other Leases to which Borrower is a party in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender.
Appears in 2 contracts
Samples: Loan Agreement (Rodin Global Property Trust, Inc.), Loan Agreement (Rodin Global Property Trust, Inc.)
Leasing Matters. Any Lease Major Leases with respect to any Property executed after the date hereof (and shall be subject to Lender’s approval, which approval shall not be unreasonably withheld, conditioned or delayed, provided, however, that renewals of any amendment or termination thereof) Major Lease by Borrowers initially executed prior to the Closing Date shall not require the prior written consent approval of LenderLender if the terms of any such Lease provided for renewals at a reasonably determinable rent. Upon request, which consent shall be in Lender’s sole and absolute discretion. Borrower Borrowers shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender All proposed Major Leases shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) provide for rental rates comparable to existing local market rates, contain on commercially reasonable market rate terms and do no Lease shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby Mortgage and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale, provided that, with respect to Major Leases and except with respect to the HRHI Lease, Lender provides commercially reasonable non-disturbance language. Borrower Borrowers (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the any Property involved, provided except that in no event shall termination by any Borrower terminate or accept the acceptance of surrender by a tenant of any Major Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect (including, without limitation, the Property; provided, however, that no such termination or surrender of any Lease HRHI Lease) will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); and (ev) shall not alter, modify or change the terms of (A) the Leases; and HRHI Lease other than any ministerial, non-monetary amendment or modification, or (fB) any other Major Lease in any material manner, in each of the foregoing instances, without the prior written approval of Lender, not to be unreasonably withheld. To the extent Lender’s approval is required pursuant to this Section 5.1.21, Lender shall execute and deliver at the endeavor to respond to a request of Lender all such further assurancesfor Lender’s approval within ten (10) Business Days after Borrowers’ written request therefor, confirmations and assignments delivered together with any documents or information required to be provided by Borrowers hereunder in connection with Lender’s review of the Leases as proposed Major Lease, Major Lease amendment or Major Lease termination. If the correspondence from Borrowers requesting such approval contains the following statement at the top of the first page thereof in capitalized, boldfaced, 14 point type lettering: “IF YOU FAIL TO RESPOND TO OR TO EXPRESSLY DENY THIS REQUEST FOR APPROVAL IN WRITING WITHIN TEN (10) BUSINESS DAYS, YOUR APPROVAL SHALL BE DEEMED GIVEN”, and if Lender shall from time fail to time respond to or to expressly deny such request for approval in writing (stating in reasonable detail the reason for such disapproval) within ten (10) Business Days after receipt of Borrowers’ written request therefor together with the documents and information required above and any other information reasonably require. requested by Lender in writing prior to the expiration of such ten (10) Business Day period in order to adequately review the same, then Borrowers shall have the right to require each new Tenant to execute re-submit such proposed Major Lease, Major Lease amendment or Major Lease termination and deliver accompanying information to Lender with a subordinationrequest for approval containing the following statement at the top of the first page thereof in capitalized, non-disturbance boldfaced, 14 point type lettering: “IF YOU FAIL TO RESPOND TO OR TO EXPRESSLY DENY THIS REQUEST FOR APPROVAL IN WRITING WITHIN FIVE (5) BUSINESS DAYS, YOUR APPROVAL SHALL BE DEEMED GIVEN”, and if Lender does not respond to such second request by approving such proposed Major Lease, Major Lease amendment or Major Lease termination or stating its objection thereto within five (5) Business Days of possession and attornment agreement in formLender’s receipt of such second submission, content and manner Lender’s approval shall be deemed given. Notwithstanding anything to the contrary contained herein, Borrowers shall not enter into a lease of execution reasonably acceptable to all or substantially all of any Property without Lender’s prior consent.
Appears in 2 contracts
Samples: Loan Agreement (Hard Rock Hotel Holdings, LLC), Loan Agreement (Morgans Hotel Group Co.)
Leasing Matters. Any Lease executed after the date hereof (and any amendment or termination thereof) shall require the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) provide for rental rates comparable Each Individual Borrower may enter into Leases or modify existing Leases demising a portion of its Individual Property less than or equal to existing local market ratesthe Relevant Leasing Threshold without Lender’s prior written approval provided such Leases are to unaffiliated, contain third-party tenants and shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All further provided that such Leases executed after the date hereof shall provide that (x) they are subordinate to the Security Instrument Mortgage encumbering the applicable Individual Property, and (y) the Liens created thereby and that the Tenant tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale.
(b) No Individual Borrower may enter into a Lease with an Affiliate covering all or substantially all of its Individual Property without the prior written approval of Lender, which approval may be given or withheld in the sole discretion of Lender.
(c) No Individual Borrower may enter into Leases or modify existing Leases demising a portion of its Individual Property greater than the Relevant Leasing Threshold without the prior written approval of Lender, provided, however, subject to Section 5.1.20(b) hereof, Lender shall not withhold such approval if such Individual Borrower delivers to Lender, together with its request for approval, an abstract or summary of the proposed Lease terms and an Officer’s Certificate certifying that the Leasing Conditions have been satisfied. With respect to the approval of a Lease (or modification of an existing Lease) demising a portion of the applicable Individual Property greater than the Relevant Leasing Threshold, (i) the failure to satisfy one or more of the Leasing Conditions shall not, in an of itself, be a basis for disapproval, and (ii) Lender shall taken into consideration current market conditions when determining whether to approve such a Lease (or modification).
(d) To the extent Lender’s written approval is required pursuant to this Section 5.1.20 to any Lease or modification (excluding a Lease for all or substantially all of an Individual Property entered into with an Affiliate, the approval of which is required pursuant to Section 5.1.20(b) hereof), any Individual Borrower’s written request therefor shall be delivered together with such materials reasonably requested by Lender in order to evaluate such request (it being acknowledged and agreed that no request for consent shall be effective unless and until such materials have been delivered to Lender) and shall conspicuously state, in large bold type, that “PURSUANT TO SECTION 5.1.20 OF THE LOAN AGREEMENT, THIS IS A REQUEST FOR LENDER’S CONSENT. LENDER’S RESPONSE IS REQUESTED WITHIN TEN (10) BUSINESS DAYS. LENDER’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD WILL ENABLE BORROWER TO DELIVER A SECOND NOTICE REQUESTING LENDER’S CONSENT”. In the event Lender fails to approve or disapprove to such request within ten (10) Business Days’ of the effective date of such initial request, such Individual Borrower may deliver to Lender a second written request for approval, which second written request for approval shall conspicuously state, in large bold type, that “THIS IS A REQUEST FOR LENDER’S CONSENT. LENDER’S CONSENT IS REQUESTED WITHIN FIVE (5) BUSINESS DAYS. THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN FIVE (5) BUSINESS DAYS’ OF LENDER’S RECEIPT OF THIS WRITTEN NOTICE”. In the event that Lender fails to approve or disapprove the second written request within such five (5) Business Day period, then Lender’s consent shall be deemed to have been granted.
(e) Each Individual Borrower shall furnish Lender with executed copies of all Leases and a copy of the executed Tenant Direction Letter signed by such Individual Borrower and to the extent available, the Tenant.
(f) Each Individual Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of its Individual Property involved except that, subject to the Property involvedterms of this Section 5.1.20, provided that in no event shall termination by such Individual Borrower terminate or accept the acceptance of surrender by a tenant of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will shall be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for which consent may be withheld in the Leasesole discretion of Lender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have Notwithstanding the foregoing, any Individual Borrower may, without the prior written consent of Lender, terminate (or accept a surrender of) any Lease which demises less than the Relevant Leasing Threshold under any of the following circumstances: (i) the tenant under said Lease is in default beyond any applicable grace and cure period, and such Individual Borrower has the right to require each terminate such Lease; (ii) such termination is permitted by the terms of the Lease in question and such Individual Borrower has secured an obligation from a third party to lease the space under the Lease to be terminated at a rental equal to or higher than the rental due under the Lease to be terminated; and (iii) if the tenant under the Lease to be terminated has executed a right under said Lease to terminate its Lease upon payment of a termination fee to such Individual Borrower and has in fact terminated its Lease and paid said fee, such Individual Borrower may accept said termination. Notwithstanding anything to the contrary contained herein, all new Tenant Leases and all amendments, modifications, extensions, and renewals of existing Leases with Tenants that are Affiliates of any Individual Borrower shall be subject to execute and deliver to Lender a subordination, non-disturbance the prior written consent of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender.
Appears in 2 contracts
Samples: Loan Agreement (Inland Real Estate Income Trust, Inc.), Loan Agreement (Inland Real Estate Income Trust, Inc.)
Leasing Matters. Any (a) Borrower may permit Mortgage Borrower to enter into a proposed Lease executed after (including the date hereof renewal or extension of an existing Lease (and any amendment or termination thereofa "Renewal Lease")) shall require without the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all provided such proposed Leases so long as the same Lease or Renewal Lease (ai) provide provides for rental rates and terms comparable to existing local market ratesrates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Mortgage Borrower (unless, contain reasonable market rate terms and do not contain any terms which would materially adversely affect Lender’s rights under in the Loan Documentscase of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (bii) are for is an arm's-length transaction with a lease term not exceeding one yearbona fide, including all extensionsindependent third party tenant, (ciii) are with individualdoes not have a materially adverse effect on the value of the Property taken as a whole, residential, non-commercial tenants, (iv) is subject and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument Mortgage and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender Lender, either by the terms of such Renewal Lease or pursuant to a subordination, non-disturbance and attornment agreement on Lender's then current form (v) does not contain any option, offer, right of first refusal, or other similar right to acquire all or any other purchaser portion of the Property, (vi) has a base term of less than fifteen (15) years including options to renew, (vii) has no rent, credits, free rents or concessions granted thereunder, other than as consistent with then market standards for prudent institutional owners of Class A office buildings in the sub-market where the Property is located, and (viii) is written on the standard form of lease approved by Lender and attached hereto as Exhibit C, subject to tenant specific negotiated changes which do not, individually or in the aggregate, cause a Material Adverse Change with respect to the Property or the financial condition of Borrower. All proposed Leases which do not satisfy the requirements set forth in this subsection shall be at a sale by foreclosure (Borrower's expense and subject to the prior approval of Lender and its counsel, not to be unreasonably withheld or deed in lieu thereof) or power of saledelayed. Borrower shall cause Mortgage Borrower to promptly deliver to Lender copies of all Leases which are entered into pursuant to this subsection together with Borrower's certification that it has satisfied all of the conditions of this Section.
(ab) Borrower (i) shall cause Mortgage Borrower to observe and perform all the obligations imposed upon the lessor landlord under the Leases (or refrain from such observance or performance to the extent the same is in a commercially reasonable manneraccordance with prudent institutional ownership practices for properties similar to and in the same sub-market as Property) and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (bii) shall cause Mortgage Borrower to promptly send copies to Lender of all notices of default which Mortgage Borrower shall send or receive thereunder; (iii) shall cause Mortgage Borrower to enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed unless Borrower, in a commercially reasonable manner accordance with prudent institutional ownership practices for properties similar and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect same sub-market as the Property; provided, howeverelects not to enforce any such term, that no such termination covenant or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leasecondition; (civ) shall not permit Mortgage Borrower to collect any of the Rents more than one (1) month in advance (other than except security deposits required pursuant to such Leaseshall not be deemed Rents collected in advance); (dv) shall not permit Mortgage Borrower to execute any other assignment of the lessor’s landlord's interest in any of the Leases or the Rents; and (vi) shall not permit Mortgage Borrower to consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender, such consent not to be unreasonably withheld, conditioned or delayed.
(c) Borrower may, without the prior written consent of Lender, permit Mortgage Borrower to amend, modify or waive the provisions of any Lease or terminate, reduce Rents under, accept a surrender of space under, or shorten the term of, any Lease (except including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Agreement and any subordination agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this subsection shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall cause Mortgage Borrower to promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this subsection together with Borrower's certification that it has satisfied all of the Loan Documents); conditions of this subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not permit Mortgage Borrower, without the prior written consent of Lender, to enter into, renew, extend, amend, modify, waive any material provisions of, terminate, reduce Rents under, accept a surrender of space under, or shorten the term of any Major Lease.
(e) shall not alterNotwithstanding anything to the contrary contained herein, modify or change to the terms of the Leases; and (f) shall execute and deliver at the request of Lender all such further assurancesextent Lender's prior approval is required for any leasing matters set forth in this Section 5.13, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have the right ten (10) Business Days from receipt of written request and all required information and documentation relating thereto in which to require each new Tenant to execute and deliver approve or disapprove such matter, provided that such request to Lender a subordinationis marked in capitalized bold lettering with the following language: "LENDER'S RESPONSE IS REQUIRED WITHIN TEN (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 request must be marked "PRIORITY - LENDER'S RESPONSE REQUIRED IN TEN (10) BUSINESS DAYS." In the event that Lender fails to respond to the leasing matter in question within such time, non-disturbance of possession Lender's approval shall be deemed given for all purposes. Borrower shall provide Lender with such information and attornment agreement in formdocumentation as may be reasonably required by Lender, content including, without limitation, lease comparables and manner of execution reasonably acceptable to other market information as required by Lender.
Appears in 2 contracts
Samples: Junior Mezzanine Loan Agreement (Maguire Properties Inc), Senior Mezzanine Loan Agreement (Maguire Properties Inc)
Leasing Matters. Any Lease executed after the date hereof (a) Borrower shall not (and any amendment or termination thereofshall cause Guarantor (Operating Lease) shall require not to), without the prior written consent of LenderLender (and, which consent if a Securitization shall be in Lender’s sole and absolute discretion. have occurred, Borrower shall furnish have obtained and delivered to Lender with truea Rating Agency Confirmation) restate, correct and complete executed copies materially modify, materially amend or materially supplement (or permit the restatement, material modification, amendment or supplement of) any Operating Lease or Operating Lease Guaranty (provided, that any modification, amendment or supplement affecting any of all Leases, amendments thereof and the economic terms of any related agreements. Without limitation, and as applicable, Lender Operating Lease or any of the terms of the Operating Lease Guaranty shall be deemed to be material for purposes hereof), terminate or accept the surrender (or permit the termination or surrender) of any Operating Lease or Operating Lease Guaranty, or release or materially waive (or permit the release or material waiver of) the Operating Company or Guarantor (Operating Lease) from the performance or observance of any obligation or condition under the Operating Leases or Operating Lease Guaranty. In connection with a material modification, Lender may request, and in such event, Borrower shall not effect such modification without, an Additional True Lease Opinion in form and substance reasonably satisfactory to Lender issued by Borrower’s counsel (at Borrower’s expense). Borrower shall not permit the prepayment of any rents under the Operating Leases for more than one (1) month prior to the due date thereof. Notwithstanding the foregoing, Lender’s consent shall not be required in connection with any modification, amendment or waiver of any provision of the Operating Lease as may be reasonably necessary to comply with the requirements of this Agreement or any other Loan Document or that makes the provisions of the Operating Lease consistent with the provisions of this Agreement or any other Loan Document. Notwithstanding anything contained in this Section 5.1.20
(a) to the contrary, (x) Lender’s consent to any amendment, modification or supplement of the Operating Lease (or any new Operating Lease) or the Operating Lease Guaranty may also be conditioned on the delivery by Borrower, upon the reasonable request of Lender, of an Additional Insolvency Opinion and/or an Additional True Lease Opinion acceptable to Lender, and (y) Lender’s consent to any assignment of any Operating Lease or Operating Lease Guaranty (or of any interest therein) or any material amendment, material modification or material supplement of any Operating Lease shall also be conditioned on the delivery by Borrower, upon the reasonable request of Lender, of an Additional Insolvency Opinion and an Additional True Lease Opinion acceptable to Lender.
(b) Borrower shall not permit (or consent to) an assignment by any Operating Company of any such Operating Company’s interest(s) under any Operating Lease and Borrower shall not assign any of its interests in the Operating Lease Guaranty without, in each case, Lender’s prior written consent (and, if a Securitization shall have approved occurred, at Lender’s request, without Borrower providing to Lender a Rating Agency Confirmation and an Additional True Lease Opinion). For the avoidance of doubt, the foregoing sentence shall not restrict space leases and subleases otherwise permitted hereunder.
(c) Subject to clause (d) below, each Operating Company may enter into space leases and renewals of space Leases. All such space Leases and all renewals of space Leases and all proposed Leases so long as executed after the same Original Closing Date entered into by Operating Company shall (ai) provide for rental rates rates, rent credits and free rent periods comparable to existing local market rates, contain rates for comparable properties; (ii) be on commercially reasonable market rate terms terms; (iii) provide that such Lease is subordinate to the Mortgage encumbering the Individual Property in question and do that the lessee will attorn to Lender and any purchaser at a foreclosure sale; (iv) not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents; (v) not grant to the tenants thereunder any option or right to purchase the applicable Individual Property (or any portion thereof); and (vi) in the case of Major Leases, have initial terms less than twenty (b20) are for a lease term consecutive years, in each case (unless otherwise consented to by Lender pursuant to clause (d) below).
(i) Any Major Lease entered into by Operating Company with respect to an Individual Property executed after the Original Closing Date (and any renewal of any Major Lease with respect to an Individual Property), and any space Lease or space Lease renewal proposed to be entered into by Operating Company after the Original Closing Date and that does not exceeding one year, including all extensions, meet the criteria set forth in Sections 5.1.20(a) and subparagraph (c) above, shall be subject to the prior written approval of Lender, which approval shall not be unreasonably withheld, conditioned or delayed. Borrower shall not terminate or accept the surrender of (and shall not permit Operating Company to terminate or accept the surrender of) a Major Lease (unless by reason of a tenant default) without the consent of Lender.
(ii) Every submission to Lender of any proposed Major Lease (or Major Lease renewal, amendment, modification or termination) or proposed space Lease or space Lease renewal that does not meet the criteria set forth in Sections 5.1.20(a) and subparagraph (c) above for Lender’s approval shall be forwarded to Lender together with a notice from Borrower (in bold typeface) that states “YOUR FAILURE TO RESPOND TO THIS NOTICE AND REQUEST FOR APPROVAL WITHIN TEN (10) BUSINESS DAYS OF YOUR RECEIPT OF THIS NOTICE SHALL CONSTITUTE YOUR DEEMED CONSENT TO THE MATTERS DESCRIBED IN OR THAT ARE THE SUBJECT OF THIS NOTICE”. If Lender responds to Borrower’s request by identifying missing documents or materials that are incomplete or inaccurate (and that are the subject of the request for approval), then Borrower shall re-submit such documents or materials to Lender for its approval together with individual, residential, non-commercial tenants, and a second notice from Borrower that complies with this section.
(diii) have been entered into If Lender fails to approve or disapprove any such proposed request or submission attached to a first notice or request sent by Borrower (or the matters that are the subject of the re-submitted notice or request for approval) within ten (10) Business Days of receipt of same, Borrower shall re-submit such instruments or materials to Lender for Lender’s approval and give Lender a second notice (in its ordinary course bold typeface) that states “SECOND NOTICE — YOUR FAILURE TO RESPOND TO THIS NOTICE AND REQUEST FOR APPROVAL WITHIN FIVE (5) BUSINESS DAYS OF YOUR RECEIPT OF THIS NOTICE SHALL CONSTITUTE YOUR DEEMED CONSENT TO THE MATTERS DESCRIBED IN OR THAT ARE THE SUBJECT OF THIS NOTICE”. If Lender fails to respond to such second notice within five (5) Business Days of business. All Leases executed after the date hereof shall provide that they are subordinate receipt of same, then Lender’s consent to the Security Instrument proposed request or submission that is the subject of such notice shall be deemed granted.
(e) Borrower shall and the Liens created thereby and that the Tenant thereunder agrees shall cause Operating Company to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereofi) or power of sale. Borrower (a) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Individual Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Lease; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. .
(f) Upon request, Borrower shall furnish Lender with executed copies of all new Leases or Lease renewals or amendments.
(g) Notwithstanding anything to the contrary contained herein, Borrower shall not enter into (or permit Operating Company to enter into) a lease of all or substantially all of any Individual Property without Lender’s prior consent.
(h) Provided the foregoing requirements have been complied with and no Event of Default then exists, (i) Lender agrees to direct Collateral Agent to enter into a Recognition Agreement with the tenants under Major Leases defined in clause (a)(i) or (a)(ii) of the definition thereof, in each case on the form annexed as Schedule XII hereto (with such changes as shall be negotiated by Collateral Agent in good faith) and, in such event, no fee shall be charged by Lender or Collateral Agent in connection with any such Recognition Agreement (except that Borrower shall reimburse Collateral Agent for any reasonable, out-of-pocket fees and expenses incurred by Collateral Agent in connection with same) and (ii) if requested by Borrower, Lender and Collateral Agent agree to not unreasonably withhold its or their consent to entering into (and shall enter into) a Recognition Agreement with other tenants, excluding tenants described in any of clauses (b) and (c) of the definition thereof (as to which Collateral Agent shall have no obligation whatsoever to grant nondisturbance), in each case on the right to require each new Tenant to execute form annexed as Schedule XII hereto (with such changes as shall be negotiated by Collateral Agent in good faith) and, in such event, no fee shall be charged by Lender or Collateral Agent in connection with any such Recognition Agreement (except that Borrower shall reimburse Collateral Agent for any reasonable, out-of-pocket fees and deliver to Lender a subordination, non-disturbance of possession and attornment agreement expenses incurred by Collateral Agent in form, content and manner of execution reasonably acceptable to Lenderconnection with same).
Appears in 2 contracts
Samples: Loan Agreement, Loan Agreement (Harrahs Entertainment Inc)
Leasing Matters. Any Lease executed after the date hereof (a) Borrower shall not (and any amendment or termination thereofshall cause Mortgage Borrower and Guarantor (Operating Lease) shall require not to), without the prior written consent of LenderLender (and, which consent if a Securitization shall be in Lender’s sole and absolute discretion. have occurred, Borrower shall furnish have obtained and delivered to Lender with truea Rating Agency Confirmation) restate, correct and complete executed copies materially modify, materially amend or materially supplement (or permit the restatement, material modification, amendment or supplement of) any Operating Lease or Operating Lease Guaranty (provided, that any modification, amendment or supplement affecting any of all Leases, amendments thereof and the economic terms of any related agreements. Without limitation, and as applicable, Lender Operating Lease or any of the terms of the Operating Lease Guaranty shall be deemed to be material for purposes hereof), terminate or accept the surrender (or permit the termination or surrender) of any Operating Lease or Operating Lease Guaranty, or release or materially waive (or permit the release or material waiver of) the Operating Company or Guarantor (Operating Lease) from the performance or observance of any obligation or condition under the Operating Leases or Operating Lease Guaranty. In connection with a material modification, Lender may request, and in such event, Borrower shall not effect such modification without, an Additional True Lease Opinion in form and substance reasonably satisfactory to Lender issued by Borrower’s counsel (at Borrower’s expense). Borrower shall not permit (or cause or permit Mortgage Borrower to permit) the prepayment of any rents under the Operating Leases for more than one (1) month prior to the due date thereof. Notwithstanding the foregoing, Lender’s consent shall not be required in connection with any modification, amendment or waiver of any provision of the Operating Lease as may be reasonably necessary to comply with the requirements of this Agreement or any other Loan Document or that makes the provisions of the Operating Lease consistent with the provisions of this Agreement or any other Loan Document. Notwithstanding anything contained in this Section 5.1.20
(a) to the contrary, (x) Lender’s consent to any amendment, modification or supplement of the Operating Lease (or any new Operating Lease) or the Operating Lease Guaranty may also be conditioned on the delivery by Borrower, upon the reasonable request of Lender, of an Additional Insolvency Opinion and/or an Additional True Lease Opinion acceptable to Lender, and (y) Lender’s consent to any assignment of any Operating Lease or Operating Lease Guaranty (or of any interest therein) or any material amendment, material modification or material supplement of any Operating Lease shall also be conditioned on the delivery by Borrower, upon the reasonable request of Lender, of an Additional Insolvency Opinion and an Additional True Lease Opinion acceptable to Lender.
(b) Borrower shall not permit (or consent to) an assignment by any Operating Company of any such Operating Company’s interest(s) under any Operating Lease or an assignment by any Mortgage Borrower of any such Mortgage Borrower’s interest(s) under any Operating Lease Guaranty without, in each case, Lender’s prior written consent (and, if a Securitization shall have approved occurred, at Lender’s request, without Borrower providing to Lender a Rating Agency Confirmation and an Additional True Lease Opinion). For the avoidance of doubt, the foregoing sentence shall not restrict space leases and subleases otherwise permitted hereunder.
(c) Subject to clause (d) below, each Operating Company may enter into space leases and renewals of space Leases. All such space Leases and all renewals of space Leases and all proposed Leases so long as executed after the same Original Closing Date entered into by Operating Company shall (ai) provide for rental rates rates, rent credits and free rent periods comparable to existing local market rates, contain rates for comparable properties; (ii) be on commercially reasonable market rate terms terms; (iii) provide that such Lease is subordinate to the Mortgage encumbering the Individual Property in question and do that the lessee will attorn to Mortgage Lender and any purchaser at a foreclosure sale; (iv) not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents; (v) not grant to the tenants thereunder any option or right to purchase the applicable Individual Property (or any portion thereof); and (vi) in the case of Major Leases, have initial terms less than twenty (b20) are for a lease term consecutive years, in each case (unless otherwise consented to by Lender pursuant to clause (d) below).
(i) Any Major Lease entered into by Operating Company with respect to an Individual Property executed after the Original Closing Date (and any renewal of any Major Lease with respect to an Individual Property), and any space Lease or space Lease renewal proposed to be entered into by Operating Company after the Original Closing Date and that does not exceeding one year, including all extensions, meet the criteria set forth in Sections 5.1.20(a) and subparagraph (c) above, shall be subject to the prior written approval of Lender, which approval shall not be unreasonably withheld, conditioned or delayed. Borrower shall not terminate or accept the surrender of (and shall not permit Operating Company or Mortgage Borrower to terminate or accept the surrender of) a Major Lease (unless by reason of a tenant default) without the consent of Lender.
(ii) Every submission to Lender of any proposed Major Lease (or Major Lease renewal, amendment, modification or termination) or proposed space Lease or space Lease renewal that does not meet the criteria set forth in Sections 5.1.20(a) and subparagraph (c) above for Lender’s approval shall be forwarded to Lender together with a notice from Borrower (in bold typeface) that states “YOUR FAILURE TO RESPOND TO THIS NOTICE AND REQUEST FOR APPROVAL WITHIN TEN (10) BUSINESS DAYS OF YOUR RECEIPT OF THIS NOTICE SHALL CONSTITUTE YOUR DEEMED CONSENT TO THE MATTERS DESCRIBED IN OR THAT ARE THE SUBJECT OF THIS NOTICE”. If Lender responds to Borrower’s request by identifying missing documents or materials that are incomplete or inaccurate (and that are the subject of the request for approval), then Borrower shall re-submit such documents or materials to Lender for its approval together with individual, residential, non-commercial tenants, and a second notice from Borrower that complies with this section.
(diii) have been entered into If Lender fails to approve or disapprove any such proposed request or submission attached to a first notice or request sent by Borrower (or the matters that are the subject of the re-submitted notice or request for approval) within ten (10) Business Days of receipt of same, Borrower shall re-submit such instruments or materials to Lender for Lender’s approval and give Lender a second notice (in its ordinary course bold typeface) that states “SECOND NOTICE — YOUR FAILURE TO RESPOND TO THIS NOTICE AND REQUEST FOR APPROVAL WITHIN FIVE (5) BUSINESS DAYS OF YOUR RECEIPT OF THIS NOTICE SHALL CONSTITUTE YOUR DEEMED CONSENT TO THE MATTERS DESCRIBED IN OR THAT ARE THE SUBJECT OF THIS NOTICE”. If Lender fails to respond to such second notice within five (5) Business Days of business. All Leases executed after the date hereof shall provide that they are subordinate receipt of same, then Lender’s consent to the Security Instrument proposed request or submission that is the subject of such notice shall be deemed granted.
(e) Borrower shall and the Liens created thereby shall cause Mortgage Borrower and that the Tenant thereunder agrees Operating Company to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereofi) or power of sale. Borrower (a) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Individual Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Lease; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. .
(f) Upon request, Borrower shall furnish Lender with executed copies of all new Leases or Lease renewals or amendments.
(g) Notwithstanding anything to the contrary contained herein, Borrower shall have the right not enter into (or permit Operating Company or Mortgage Borrower to require each new Tenant to execute and deliver to Lender enter into) a subordination, non-disturbance lease of possession and attornment agreement in form, content and manner all or substantially all of execution reasonably acceptable to any Individual Property without Lender’s prior consent.
Appears in 2 contracts
Samples: First Mezzanine Loan Agreement (Harrahs Entertainment Inc), Eighth Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Leasing Matters. Any Lease executed Leases written after the date hereof (and any amendment or termination thereof) shall require be subject to the prior written consent approval of Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld, conditioned or delayed. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby applicable Mortgage and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Individual Property involved, provided involved except that in no event shall termination by Borrower terminate or accept the acceptance of surrender of any Lease by a Tenant of any Leases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Individual Property; provided, however, that no such termination or surrender of any Lease covering more than 6,000 square feet will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Notwithstanding anything to the contrary contained herein, all new Leases and all amendments, modifications, extensions, and renewals of existing Leases with Tenants that are Affiliates of Borrower shall be subject to the prior written consent of Lender. To the extent Lender’s approval is required pursuant to this Section 5.1.20 to any Lease or modification, Borrower’s written request therefor shall be delivered together with such materials reasonably requested by Lender in order to evaluate such request (it being acknowledged and agreed that no request for consent shall be effective unless and until such materials have been delivered to Lender). Each such request shall conspicuously state, in large bold type on the right top of the first page of such request, that “PURSUANT TO SECTION 5.1.20 OF THE LOAN AGREEMENT, THIS IS A REQUEST FOR LENDER’S CONSENT. LENDER’S RESPONSE IS REQUESTED WITHIN FIFTEEN (15) BUSINESS DAYS. LENDER’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD WILL ENABLE BORROWER TO DELIVER A SECOND NOTICE REQUESTING LENDER’S CONSENT”. In the event Lender fails to require each new Tenant approve or disapprove to execute and such initial request within fifteen (15) Business Days’ of the effective date of such initial request, Borrower may deliver to Lender a subordinationsecond written request for approval, non-disturbance which second written request for approval shall conspicuously state, in large bold type on the top of possession and attornment agreement in formthe first page of such request, content and manner of execution reasonably acceptable that “THIS IS A REQUEST FOR LENDER’S CONSENT. LENDER’S CONSENT IS REQUESTED WITHIN FIVE (5) BUSINESS DAYS. THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN FIVE (5) BUSINESS DAYS’ OF LENDER’S RECEIPT OF THIS WRITTEN NOTICE”. In the event that Lender fails to approve or disapprove the second written request within such five (5) Business Day period, then Lender’s consent shall be deemed to have been granted. Notwithstanding the foregoing, if four (4) or more Leases have been deemed approved pursuant to this Section 5.1.20, then Borrower shall not be entitled to receive deemed approval with respect to any additional Leases.
Appears in 2 contracts
Samples: Loan Agreement (Cole Credit Property Trust III, Inc.), Loan Agreement (Cole Credit Property Trust III, Inc.)
Leasing Matters. Any (a) With respect to the Property, Borrower or Operating Tenant may enter into a proposed Lease executed after (including the date hereof renewal or extension of an existing Lease, other than an Operating Lease, (and any amendment or termination thereofa “Renewal Lease”)) shall require without the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with trueprovided that if such proposed Lease or Renewal Lease is a Major Lease, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same such Major Lease (ai) provide provides for rental rates and terms comparable to existing local market ratesrates and terms (taking into account the type and quality of the tenant) as of the date such Major Lease is executed by Borrower (unless, contain reasonable market rate terms and do not contain any terms which would materially adversely affect Lender’s rights under in the Loan Documentscase of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (bii) are for is an arms-length transaction with a lease term not exceeding one yearbona fide, including all extensionsindependent third party tenant, (ciii) are with individual, residential, non-commercial tenantsdoes not have a material adverse effect on the value or quality of the Property, and (div) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are is subject and subordinate to the Security Instrument and the Liens created thereby and that the Tenant lessee thereunder agrees to attorn to Lender. All proposed Major Leases which do not satisfy the requirements set forth in this Section 5.1.17(a) shall be subject to the prior approval of Lender, which approval shall not be unreasonably withheld. At Lender’s request, Borrower and Operating Tenant, as applicable, shall promptly deliver to Lender or any other purchaser copies of all Major Leases which are entered into pursuant to this Subsection together with Borrower’s certification that it has satisfied all of the Property at a sale by foreclosure conditions of this Section.
(or deed in lieu thereofb) or power of sale. Borrower and Operating Tenant (ai) shall observe and perform all the material obligations imposed upon the lessor under the Major Leases in a commercially reasonable mannerand shall not do or permit to be done anything to impair the value of any of the Major Leases as security for the Debt; (bii) shall promptly send copies to Lender of all notices of default or other material matters which Borrower shall send or receive with respect to the Major Leases; (iii) shall enforce all of the material terms, covenants and conditions contained in the Major Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason (except for termination of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Major Lease will be permitted without the which shall require Lender’s prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leaseapproval); (civ) shall not collect any of the Rents more than one (1) month in advance (other than except security deposits required pursuant to such Leaseshall not be deemed Rents collected in advance); (dv) shall not execute any other assignment of the lessor’s interest in any of the Major Leases or the Rents Rents; and (except to Lender pursuant to the Loan Documents); (evi) shall not alterconsent to any assignment of or subletting under any Major Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower and Operating Tenant may, without the consent of Lender, amend, modify or change waive the terms provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (other than the Operating Lease) (including any guaranty, letter of credit or other credit support with respect thereto) provided that such Lease is not a Major Lease and that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the Leases; affected space) does not have a material adverse effect on the value of the Property taken as a whole, and (f) shall execute and deliver at the request of Lender all provided that such further assurancesLease, confirmations and assignments as amended, modified or waived, is otherwise in connection compliance with the Leases requirements of this Agreement and any lease subordination agreement binding upon Lender with respect to such Lease. A termination of a Lease (other than a Major Lease) with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a material adverse effect on the value of the Property taken as Lender a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall from time be subject to time reasonably requirethe prior written approval of Lender, which approval shall not be unreasonably withheld and its counsel, at Borrower’s expense. Lender At Lender’s request, Borrower and Operating Tenant, as applicable, shall have the right to require each new Tenant to execute and promptly deliver to Lender a subordinationcopies of all Leases, non-disturbance of possession amendments, modifications and attornment agreement in form, content and manner of execution reasonably acceptable waivers which are entered into pursuant to Lender.this Section 5.1.17
Appears in 2 contracts
Samples: Loan Agreement (Meristar Hospitality Operating Partnership Lp), Loan Agreement (Meristar Hospitality Corp)
Leasing Matters. Any (a) With respect to any Individual Property, Borrower may cause Mortgage Borrower or Operating Tenant to enter into a proposed Lease executed after (including the date hereof renewal or extension of an existing Lease, other than an Operating Lease, (and any amendment or termination thereofa “Renewal Lease”)) shall require without the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with trueprovided that if such proposed Lease or Renewal Lease is a Major Lease, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same such Major Lease (ai) provide provides for rental rates and terms comparable to existing local market ratesrates and terms (taking into account the type and quality of the tenant) as of the date such Major Lease is executed by Mortgage Borrower (unless, contain reasonable market rate terms in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, and (iii) does not have a material adverse effect on the value or quality of the applicable Individual Property. All proposed Major Leases which do not contain any terms satisfy the requirements set forth in this Section 5.1.17(a) shall be subject to the prior approval of Lender, which would materially adversely affect approval shall not be unreasonably withheld. At Lender’s rights under request, Borrower shall cause Mortgage Borrower and Operating Tenant, as applicable, to promptly deliver to Lender copies of all Major Leases which are entered into pursuant to this Subsection together with Borrower’s certification that it has satisfied or caused Mortgage Borrower to have satisfied all of the Loan Documents, conditions of this Section.
(b) are for a lease term not exceeding one yearBorrower shall, including all extensionsor cause Mortgage Borrower to cause Operating Tenant to, (ci) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (a) shall observe and perform all the material obligations imposed upon the lessor under the Major Leases in a commercially reasonable mannerand shall not do or permit to be done anything to impair the value of any of the Major Leases as security for the Debt; (bii) promptly send copies to Lender of all notices of default or other material matters which Mortgage Borrower shall send or receive with respect to the Major Leases; (iii) enforce all of the material terms, covenants and conditions contained in the Major Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason (except for termination of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Major Lease will be permitted without the which shall require Lender’s prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leaseapproval); (civ) shall not collect any of the Rents more than one (1) month in advance (other than except security deposits required pursuant to such Leaseshall not be deemed Rents collected in advance); (dv) shall not execute any other assignment of the lessor’s interest in any of the Major Leases or the Rents (except to Lender pursuant to as contemplated by the Mortgage Loan Documents); and (evi) shall not alterconsent to any assignment of or subletting under any Major Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, or cause Mortgage Borrower to cause Operating Tenant to, without the consent of Lender, cause Mortgage Borrower to amend, modify or change waive the terms provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (other than the Operating Lease) (including any guaranty, letter of credit or other credit support with respect thereto) provided that such Lease is not a Major Lease and that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the Leases; and (faffected space) shall execute and deliver at does not have a material adverse effect on the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender.value
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Meristar Hospitality Corp), Mezzanine Loan Agreement (Meristar Hospitality Operating Partnership Lp)
Leasing Matters. Any (a) Borrower shall not, and shall not permit any Master Tenant or any Lineage Subtenant to, execute any Material Lease executed after the date hereof (and any amendment or termination thereof) shall require the a “New Lease”), without Xxxxxx’s prior written consent of Lenderconsent, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that if Lender fails to respond to the delivery of any proposed Material Lease in Lenderwriting within ten (10) Business Days’ following receipt of such proposed Material Lease, then such proposed Material Lease shall be deemed disapproved, provided further, that Borrower shall be permitted to thereafter deliver, or cause to be delivered, to Lender a second copy of such proposed Material Lease requesting Xxxxxx’s sole and absolute discretionprior written approval (such approval not to be unreasonably withheld, conditioned or delayed). Upon reasonable request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed New Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed New Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All New Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby applicable Mortgage and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower For purposes of clarity, (i) the execution of any new Lease that does not constitute a Material Lease shall not require Lender’s consent and any such Lease may be entered into without consent of or notice to Lender, and (ii) any sublease of any Third Party Sublease or any renewal of any such sublease entered into by the applicable Third Party Subtenant in compliance with the applicable Third Party Sublease shall not be subject to the requirements of this Section 5.1.20
(a) to the extent that the applicable Master Xxxxxx does not have the right to deny consent to such sublease or renewal under the applicable Third Party Sublease.
(b) Borrower shall at all times promptly and faithfully perform, and direct each Master Tenant to perform, in all material respects and subject to any grace and cure periods set forth therein, if any, all of the covenants, conditions and agreements contained in its Master Lease, now or hereafter existing, on the part of the landlord and tenant thereunder to be kept and performed.
(c) Borrower shall not do or suffer to be done, and shall not permit any Master Tenant to do or suffer to be done, any act that would reasonably be expected to result in a default by Borrower or any Master Tenant under any Master Lease in any material respect or permit any Master Tenant to withhold any payment of Rent due thereunder, and shall not assign, except for Permitted Encumbrances, or permit any Master Tenant to assign the applicable Master Lease or any Rents thereunder, except as permitted under Section 5.2.10.
(d) Borrower, at no cost or expense to Lender, shall perform and observe, in all material respects, each and every condition and covenant under each Master Lease to be performed or observed by the landlord thereunder and enforce (short of termination) the performance and observance by each Master Tenant in all material respects of each and every condition and covenant under the applicable Master Lease to be performed or observed by such Master Tenant thereunder.
(e) Borrower shall not, without the prior written consent of Lender (and, if a Securitization shall have occurred, Borrower shall have obtained and delivered to Lender a Rating Agency Confirmation to the extent required by the Rating Agencies), (i) modify, amend, supplement or restate (or permit the modification, amendment, supplement or restatement of) any Master Lease (except with respect to de minimis changes to correct typographical errors), (ii) terminate or accept the surrender (or permit the termination or surrender) of any Master Lease, or (iii) release or waive (or permit the release or waiver of) any Master Tenant from the performance or observance of any obligation or condition under any Master Lease; provided, however, (i) that the applicable Master Lease may be amended to reflect any release of an Individual Property or a Property Substitution to the extent that such release or Property Substitution is made subject to and in compliance with the terms of this Agreement and (ii) notwithstanding anything to the contrary, so long as no Event of Default is continuing, without Lender’s consent, Borrower may amend two (2) Master Leases (for each Individual Property located in Conklin, New York and Terrell, Texas) to remove such Individual Properties (and, if applicable, the related Individual Borrower) from the Master Lease to which such Individual Property is subject (“Removed ML”) and add such Individual Property (and, if applicable, the related Individual Borrower) to another Master Lease (“Added ML”) in one transaction or a series of transactions, provided that the rents attributable to such Individual Properties are removed from the Removed ML and added to the Added ML in equal amounts, which amendments Lender acknowledges may result in a change of the Master Tenant for such Individual Property, provided that the foregoing amendments shall be conditioned upon Borrower delivering to Lender (i) copies of such amendments and (ii) an update to the applicable True Lease Opinion(s) delivered at Closing (or an Additional True Lease Opinion) reflecting such amendments for each such Individual Property. Notwithstanding the foregoing, Lender shall not unreasonably withhold, delay or condition its consent to any modification, amendment or waiver of any provision of any Master Lease as may be reasonably necessary to comply with the requirements of this Agreement or any other Loan Document or any Legal Requirement, or that makes the provisions of such Master Lease consistent with the provisions of this Agreement or any other Loan Document. Notwithstanding anything contained in this Section 5.1.20 to the contrary, Xxxxxx’s consent to any amendment, modification, supplement or restatement of any Master Lease shall also be conditioned on the delivery by Borrower to the extent reasonably required by Lender, of an Additional Insolvency Opinion and an Additional True-Lease Opinion in a form and substance reasonably acceptable to Lender (Lender agreeing that any such option substantially similar in form and substance delivered to Lender as of the Closing Date shall be acceptable to Lender) and, if a Securitization shall have occurred, Borrower shall deliver to Lender a Rating Agency Confirmation with respect thereto.
(f) Borrower shall, and shall cause each Master Tenant to, (i) observe and perform in all material respects the obligations imposed upon the lessor under the Leases relating to the Properties, as applicable, in a commercially reasonable manner; (bii) shall subject to this clause (f) and the last sentence of Section 5.1.2, enforce in all material respects the terms, covenants and conditions contained in the Leases relating to the Properties upon the part of the Tenant any sublessor (including each Third Party Sublessor) thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to materially impair the value of the Individual Property involved; provided, provided however, that in no event Borrower shall Borrower not permit any Master Tenant to terminate or accept the surrender of any Material Lease by a Tenant unless by reason (or any Leases for the same Individual Property when aggregated together would meet the requirements of a Tenant default and then only in a Material Lease) (unless it would be commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted do so) without the prior written consent of Lender Lender, such consent not to be unreasonably withheld, conditioned or unless such termination or surrender is specifically provided for in the Leasedelayed; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan DocumentsDocuments and otherwise permitted under Section 5.2.10); and (ev) shall without the prior written consent of Lender (such consent not to be unreasonably withheld, conditioned or delayed), not alter, modify or change the terms of the Leases; Material Leases so as to change the amount of rent, change the expiration date, grant any option for additional space or term, materially reduce the obligations of the Tenant or increase the obligations of lessor, in each case, to the extent the same would, individually or in the aggregate, be inconsistent with the provisions of the Loan Documents. Notwithstanding anything to the contrary contained herein, but subject to the provisions of Section 5.1.20(e) above regarding any Master Lease, all new Material Leases and all amendments, modifications, extensions, and renewals of existing Material Leases with Tenants that are Affiliates of Borrower shall be subject to the prior written consent of Lender, such consent not to be unreasonably withheld, conditioned or delayed.
(fg) Borrower shall, at all times, cause the aggregate Rent payable under the Master Leases to be equal to $94,075,248 per annum with respect to the Properties that are subject to the liens of the Mortgages as of the Closing Date, which Rent shall execute increase by the amount set forth on Schedule 5.1.20 as and deliver when each Earn-Out Property becomes collateral for the Loan (as such amount may be reduced in accordance with a release under the Loan Documents of any of the Properties in accordance with the terms of the applicable Master Lease), in each case with annual increases in such base rent as set forth in the applicable Master Lease (as in effect as of the Closing Date), as applicable. For the avoidance of doubt, if all of the Earn-Out Properties become collateral for the Loan, and no Properties are released from the Lien of the Loan Documents, the annual Rent payable under the Master Leases would be $106,516,739.
(h) Notwithstanding anything to the contrary contained in this Agreement, the parties acknowledge that the Lender has preapproved the execution of a waiver and subordination of Xxxxxxxx’s lien, as landlord, on the assets of the Tenant known as Performance Cold Storage for the Individual Property located at the request of Lender all such further assurances0000 Xxxx Xxxxxxxxxxxx Xxxxxx, confirmations and assignments Xxxx Xxxx Xxxx, XX 00000, in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance such Tenant’s financing of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lenderits personalty located at such Individual Property.
Appears in 2 contracts
Samples: Loan Agreement (Lineage, Inc.), Loan Agreement (Lineage, Inc.)
Leasing Matters. Any (a) Each Borrower may enter into a proposed Lease executed after (including the date hereof renewal or extension of an existing Lease (and any amendment or termination thereofa “Renewal Lease”)) shall require without the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all provided such proposed Leases so long as the same Lease or Renewal Lease (ai) provide provides for rental rates and terms comparable to existing local market rates, contain reasonable market rate rates and terms and do not contain any terms which would materially adversely affect Lender’s rights under in accordance with commercially reasonable leasing standards for the Loan Documentsself-storage industry, (bii) are for is an arm’s-length transaction with a lease term not exceeding one yearbona fide, including all extensionsindependent third party tenant, (ciii) are with individualdoes not have a materially adverse effect on the value of the related Individual Property taken as a whole, residential, non-commercial tenants, (iv) is subject and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument related Mortgage and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender Lender, (v) does not contain any option, offer, right of first refusal, or other similar right to acquire all or any other purchaser portion of the Property related Individual Property, and (vi) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this subsection shall be subject to the prior approval of Lender and its counsel, at a sale by foreclosure Borrowers’ expense. Each Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this subsection together with such Borrower’s certification that it has satisfied all of the conditions of this Section.
(or deed in lieu thereofb) or power of sale. Each Borrower (ai) shall observe and perform all the obligations imposed upon the lessor landlord under the Leases in a commercially reasonable mannerand shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (bii) shall promptly send copies to Lender of all notices of default which such Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leaseperformed; (civ) shall not collect any of the Rents more than one (1) month in advance (other than except security deposits required pursuant to such Leaseshall not be deemed Rents collected in advance); (dv) shall not execute any other assignment of the lessorlandlord’s interest in any of the Leases or the Rents Rents; and (except to Lender pursuant to the Loan Documents); (evi) shall not alterconsent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Each Borrower may, without the consent of Lender, amend, modify or change waive the terms provisions of any Lease or terminate, reduce Rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the Leases; affected space) does not have a materially adverse effect on the value of the related Individual Property taken as a whole, and (f) provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Agreement and any subordination agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall execute not be considered an action which has a materially adverse effect on the value of an Individual Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this subsection shall be subject to the prior approval of Lender and deliver its counsel, at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender related Borrower’s expense. Each Borrower shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this subsection together with such Borrower’s certification that it has satisfied all of the conditions of this subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a subordinationsurrender of space under, non-disturbance or shorten the term of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lenderany Major Lease.
Appears in 2 contracts
Samples: Loan Agreement (Extra Space Storage Inc.), Loan Agreement (Extra Space Storage Inc.)
Leasing Matters. Any (i) If a Borrower (or Property Manager on behalf of a Borrower) enters into a Lease executed after the date hereof (and any amendment or termination thereof) shall require the prior written consent of LenderAgreement with respect to a Financed Rental Property, which consent shall be in Lender’s sole and absolute discretion. such Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same ensure that such Lease Agreement (a1) provide provides for rental rates and terms comparable to existing local market ratesrates and terms, contain reasonable market rate terms (2) is an arms-length transaction with a bona fide, independent third party Tenant, (3) does not have a material adverse effect on the value or quality of the related Rental Property, (4) is written on one of the standard forms of lease approved by Lender, (5) provides for a rental term that is not less than twelve (12) months and (6) is in compliance with all applicable law. All proposed Lease Agreements which do not contain any terms which would materially adversely affect satisfy the requirements set forth in this Section 13(bb)(i) shall be subject to the prior written approval of Lender. At Lender’s rights under request, the Loan Documents, (b) related Borrower shall promptly deliver to Lender copies of all Lease Agreements which are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenantsentered into pursuant to this Section 13(bb)(i), and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof delivery thereof shall provide constitute Borrower’s certification that they are subordinate to the Security Instrument and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender or any other purchaser such Lease Agreement satisfies all of the Property at a sale by foreclosure conditions of this Section 13(bb)(i).
(or deed in lieu thereofii) or power Borrowers shall (1) ensure that all of sale. Borrower (a) shall observe and perform the obligations imposed upon the lessor lessee under the Leases in a commercially reasonable mannerapplicable Lease Agreements are observed and performed and shall not do or permit to be done anything to impair the value of any of the applicable Lease Agreements; (b2) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant thereunder applicable Lease Agreements to be observed or performed by the Tenant thereunder; (3) promptly send copies to Lender of all notices of default or other material matters which such Borrower sends or receives with respect to the applicable Lease Agreements and (4) not consent to any assignment of or subletting under any Lease Agreements except in accordance with their respective terms.
(iii) No Borrower shall amend, modify or waive, or permit the amendment, modification or waiver of, the provisions of any Lease Agreement or terminate, reduce rents under, accept a commercially reasonable manner and in a manner which surrender of space under, or shorten the term of, any Lease Agreement (including any guaranty, letter of credit or other credit support with respect thereto) without obtaining Lender’s prior written consent except (1) with respect to any such action that does not impair have a material adverse effect on the value of the related Financed Rental Property involvedtaken as a whole or (2) as Borrowers (or Property Manager acting on behalf of Borrowers) may otherwise determine in their reasonable business judgment, and provided that such Lease Agreement, as amended, modified or waived, is otherwise in no event shall Borrower terminate or accept compliance with the surrender requirements of any this Agreement. For the avoidance of doubt, a termination of a Lease by Agreement with a Tenant unless by reason who is in default beyond applicable notice and grace periods shall not be considered an action which has a material adverse effect on the value of the related Financed Rental Property taken as a Tenant default and then only whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in a commercially reasonable manner this Section 13(bb)(iii) shall be subject to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent approval of Lender and its counsel, at Borrower’s expense. At Lender’s request, Borrower shall promptly deliver to Lender or unless its designee copies of all such termination or surrender is specifically provided for in the Lease; (c) shall not collect any of the Rents more than one (1) month in advance (other than security deposits required amendments, modifications and waivers which are entered into pursuant to such Leasethis Section 13(bb)(iii); .
(div) Borrowers shall not execute any other assignment of the lessor’s interest (w) cause each related Tenant, in the Leases or the Rents (except to Lender pursuant to the Loan Documents); (e) shall not alter, modify or change accordance with the terms of the Leasesapplicable Lease Agreement to (or shall itself, directly or through Property Manager) maintain each Financed Rental Property in good condition and repair (except for ordinary wear and tear), (x) promptly repair, replace or rebuild any part of any Rental Property which may be destroyed by any casualty or become damaged, worn or dilapidated or which may be affected by any condemnation; (y) complete and pay for any structure at any time in the process of construction or repair on the related land of any Financed Rental Property; and (fz) otherwise make all commercially reasonable efforts to preserve the value of each Financed Rental Property, including re-leasing, liquidating and selling such Financed Rental Property when appropriate in such Borrower’s reasonable business judgment.
(v) Borrowers shall execute and deliver at the request of Lender all such further assurancescause each related Tenant, confirmations and assignments in connection accordance with the Leases terms of the applicable Lease Agreement to (or shall itself, directly or through Property Manager), ensure that: (x) all uses and operations on or of the Financed Rental Properties are free of Environmental Issues and in compliance with permits issued pursuant thereto and (y) the Rental Properties shall be kept free and clear of all Liens and other encumbrances that may be imposed as Lender a result of any Environmental Issue, whether due to any act or omission of such Borrower, Tenant or any other Person.
(vi) In the event that a Tenant under a Financed Rental Property is replaced with a new Tenant, Borrowers shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and deliver to Lender a subordinationTenant Instruction Notice duly executed in blank for such new Tenant, non-disturbance together with a copy of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lenderthe related Lease Agreement for such new Tenant.
Appears in 2 contracts
Samples: Loan and Security Agreement (Front Yard Residential Corp), Loan and Security Agreement (Altisource Residential Corp)
Leasing Matters. Any Lease executed after Borrower may not enter into a Lease, license or other occupancy agreement for any portion of the date hereof (and any amendment or termination thereof) shall require the Property without Lender’s prior written consent of Lenderconsent, which consent shall not be in unreasonably withheld, conditioned or delayed, provided, however, that after the Property shall have achieved the Required Ratios at Completion, Borrower shall not be required to obtain Lender’s sole and absolute discretionapproval of Leases for less than 15,000 square feet that otherwise satisfy the requirements of this Agreement. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby Mortgage and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided involved except that in no event shall termination by Borrower terminate or accept the acceptance of surrender by a tenant of any Lease by a Tenant Leases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such Lender, provided, further, that after the Property shall have achieved the Required Ratios at Completion, Borrower shall not be required to obtain Lender’s approval for termination or surrender is specifically provided of Leases for in less than 15,000 square feet that otherwise satisfy the Leaserequirements of this Agreement; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents without Lender’s prior written consent which shall not be unreasonably withheld; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender Notwithstanding anything to the contrary contained herein, Borrower shall have not enter into a lease of all or substantially all of the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Property without Lender’s prior written consent.
Appears in 2 contracts
Samples: Building Loan Agreement (Acadia Realty Trust), Building Loan Agreement (Acadia Realty Trust)
Leasing Matters. Any (a) Except as otherwise consented to by Lender in writing, all Leases shall be written on the standard form of lease which shall have been (i) with respect to pad Leases, delivered to Lender in connection with the closing of the Loan and (ii) with respect to Operating Leases or Ground Leases, if any, approved by Lender, provided however that Lender acknowledges that to the extent any portion of the Property consists of a recreational vehicle resort, Borrower shall not be required to enter into written Leases with any occupant or tenant of such portion of the Property and such tenants and/or occupants of such recreational vehicle resorts shall be deemed month to month tenants or licensees of Borrower. So long as either Original Borrower or a Borrower Principal Affiliate is Borrower under the Loan, Borrower may modify its standard form of pad lease in accordance with sound business practices and Legal Requirements, provided that the form of such Lease executed after contains covenants and conditions that are consistent with those contained in comparable leases in the date hereof applicable local market. Notwithstanding the foregoing, in the event that the majority of owners, managers and/or operators of comparable recreational vehicle resorts in the applicable local market enter into written Leases with the occupants of recreational vehicle resorts, Borrower shall be required to enter into written Leases with respect to such occupants, and the form of such lease shall contain terms and conditions that are consistent with those of Leases of comparable properties in the applicable market or sub-market. Upon request, Borrower
(and any amendment or termination thereof1) shall require furnish Lender with executed copies of all Major Leases and (2) shall make available to Lender at Borrower's offices (upon reasonable notice to Borrower), executed copies of all other Leases. No material changes may be made to the Lender-approved standard form of Operating Lease and Ground Lease, if applicable, without the prior written consent of Lender. In addition, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) leases shall provide for rental rates and terms comparable to existing local market ratesrates and terms and, contain reasonable market rate terms except with respect to one pad at the Property used for on-site community managers (or other employees of Manager), shall be arm's-length transactions with bona fide, independent third party tenants. All proposed Major Leases and do not contain any terms which would materially adversely affect Lender’s rights under renewals of existing Major Leases shall be subject to the Loan Documentsprior approval of Lender and its counsel, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of businessat Borrower's expense. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby Mortgage and that the Tenant thereunder tenant agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure Lender.
(or deed in lieu thereofb) or power of sale. Borrower (ai) shall observe and perform all the obligations imposed upon the lessor landlord under the Leases in a commercially reasonable mannerand shall not do or permit to be done anything to impair the value of the Leases as security for the Debt; (bii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant thereunder to be observed or performed performed, short of termination thereof; provided however, with respect to pad leases, a pad Lease may be terminated in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect by the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leasetenant thereunder; (ciii) with respect to any Leases (other than Leases relating to mobile home park pads or recreational vehicle resort pads), shall not collect any of the Rents more than one (1) month in advance advance; provided, however, that in no event shall Borrower collect any Rents under Leases (or any other applicable occupancy agreements (written or otherwise)) relating to mobile home park pads or recreational vehicle resort pads more than security deposits required pursuant to such Lease)one (1) year in advance; (div) shall not execute any other assignment of the lessor’s landlord's interest in the Leases or the Rents Rents; and (v) shall not consent to any assignment of or subletting under the Major Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Notwithstanding the provisions of subsection (a) above, renewals of existing commercial Leases and proposed Leases for commercial space shall not be subject to the prior approval of Lender, provided all of the following conditions are satisfied: (i) the rental income pursuant to the renewal or proposed Lease is not more than five (5%) percent of the total rental income for the Property, (ii) the renewal or proposed Lease has a base term of less than six (6) years including options to renew, (iii) no rent, credits, free rents or concessions have been granted under the renewal or proposed Lease (except to the extent consistent with current market conditions), (iv) the renewal or proposed Lease is subject and subordinate to the Mortgage and the tenant thereunder shall have agreed to attorn to Lender, (v) the renewal or proposed Lease is on the standard form of lease approved by Lender, (vi) the renewal or proposed Lease does not contain any option, offer, right of first refusal, or other similar right to acquire all or any portion of the Property, and (vii) the renewal or proposed Lease provides for rental rates and terms comparable to existing market rates and terms and is an arm's-length transaction with a bona fide, independent third party tenant. Borrower shall deliver to Lender copies of all Leases which are entered into pursuant to the Loan Documents); (e) shall not alter, modify or change the terms preceding sentence together with Borrower's certification that it has satisfied all of the Leases; and conditions of the preceding sentence within thirty (f30) shall execute and deliver at days after the request execution of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to LenderLease.
Appears in 2 contracts
Samples: Loan Agreement (Manufactured Home Communities Inc), Loan Agreement (Manufactured Home Communities Inc)
Leasing Matters. Any Lease executed after the date hereof (Closing Date and any amendment or termination thereof) modification of any Lease executed after the Closing Date shall require the prior written consent of Lender, which consent shall not be in Lender’s sole and absolute discretionunreasonably withheld. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases (other than renewal options that are set forth in Leases executed before the Closing Date that specify the rental rates during the renewal term of such Lease) and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain rates and shall be written on the form of standard lease attached to the Borrower’s Closing Certificate dated as of the Closing Date. All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect impair Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the applicable Security Instrument and the Liens Lien created thereby and that the Tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (a) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (b) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided except that in no event Borrower shall Borrower not terminate or accept the surrender of any Lease by a Tenant of, any Lease unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Lease; (c) shall not collect any of the Rents more than one (1) month in advance (other than security deposits required pursuant to such Lease); (d) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (e) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (f) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Notwithstanding anything to the contrary contained herein, Borrower shall not enter into a Lease of all or substantially all of any Property without Lender’s prior written consent. Notwithstanding anything to the contrary contained herein, all new Leases and all amendments, modifications, extensions, and renewals of existing Leases with Tenants that are Affiliates of Borrower shall be subject to the prior written consent of Lender. Lender shall have the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender. Furthermore, if any Occupancy Reserve Tenant is no longer Continuously Operating, Borrower shall notify Lender of such fact within ten (10) Business Days after obtaining knowledge thereof.
Appears in 2 contracts
Samples: Loan Agreement (Global Medical REIT Inc.), Loan Agreement (Global Medical REIT Inc.)
Leasing Matters. Any Lease Leases with respect to the Property executed after the date hereof (and any amendment or termination thereof) hereof, for more than 1,600 square feet shall require the prior written consent of Lenderbe approved by Trustee, which consent approval shall not be unreasonably withheld and shall be deemed granted if Trustee shall not have disapproved same in Lender’s sole and absolute discretionwriting within fifteen (15) Business Days after Issuers’ request for approval, so long as the written request to Trustee for approval contains a legend clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “REQUEST DEEMED APPROVED IF NO RESPONSE WITHIN 15 BUSINESS DAYS”. Borrower Upon request, Issuers shall furnish Lender Trustee with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender All proposed Leases shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) provide for rental rates comparable to existing local market rates, contain on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect LenderTrustee’s rights under the Loan Financing Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument Trust Agreement and the Liens created thereby Pledge and that the Tenant thereunder lessee agrees to attorn to Lender Trustee or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower Issuers (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided involved except that in no event shall Borrower terminate termination by Issuers or accept the acceptance of surrender by a tenant of any Lease by a Tenant Leases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease covering more than 1,600 square feet will be permitted without the prior written consent of Lender or unless such Trustee; provided, further, that notwithstanding anything to the contrary contained in this Section 7.01(t), (A) consent to the termination or surrender is specifically provided for of the Restaurant Lease shall not be withheld if Hotel Issuer shall enter into a new Lease with a replacement tenant that has or has had a restaurant or food establishment operation serving a clientele similar to the clientele frequenting the Property and having a strong regional or national reputation and (B) Hotel Issuer may, upon not less than fifteen (15) Business Days notice to, but without the approval of, Trustee, terminate or accept a surrender of the Restaurant Lease in the Leaseevent Issuers shall elect to self manage the applicable facility and operation; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Financing Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Financing Documents; and (fvi) shall execute and deliver at the request of Lender Trustee all such further assurances, confirmations and assignments in connection with the Leases as Lender Trustee shall from time to time reasonably require. Lender Notwithstanding anything to the contrary contained herein, no Issuer shall have enter into a Lease of all or substantially all of the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to LenderProperty without Trustee’s prior consent.
Appears in 2 contracts
Samples: Note Indenture (Kerzner International LTD), Note Indenture (Kerzner International LTD)
Leasing Matters. Any Material Lease executed with respect to any of the Property written after the date hereof (and any amendment or termination thereof) shall require be subject to the prior written consent approval of Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld, conditioned or delayed. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property (or any portion thereof) involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Lease; (ciii) shall not collect any more than five percent (5%) of the Rents gross annual rents for all Property in the aggregate more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the reasonable request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender Notwithstanding anything to the contrary contained herein, Borrower shall have not enter into a lease of all or substantially all of any Individual Property without Lender’s prior written consent. Notwithstanding anything to the right contrary contained herein, all new Material Leases and all amendments, modifications, extensions, and renewals of existing Material Leases with Tenants that are Affiliates of Borrower shall be subject to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance the prior written consent of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender.
Appears in 2 contracts
Samples: Loan Agreement (Strategic Storage Trust II, Inc.), Loan Agreement (Strategic Storage Trust IV, Inc.)
Leasing Matters. Any Lease executed Leases with respect to the Property written after the date hereof (and any amendment or termination thereof) Closing Date for more than the Relevant Leasing Threshold square footage shall require be subject to the prior written consent approval of Lender, which consent approval may be given or withheld in the sole discretion of Lender. Lender shall approve or disapprove any such Lease within ten (10) Business Days of Lender’s receipt of a final execution draft of such Lease (including all exhibits, schedules, supplements, addenda or other agreements relating thereto) and a written notice from Borrower requesting Lender’s approval to such Lease, and such Lease shall be deemed approved, if Lender does not disapprove such Lease within said ten (10) Business Day period provided such written notice conspicuously states, in Lender’s sole and absolute discretionlarge bold type, that “PURSUANT TO SECTION 5.1.20 OF THE LOAN AGREEMENT, THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN TEN (10) BUSINESS DAYS OF LENDER’S RECEIPT OF SUCH LEASE AND WRITTEN NOTICE”. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain rates (unless such rental rates are otherwise set forth in the Leases executed prior to the Closing Date). All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof Closing Date shall provide that they are subordinate to the Security Instrument and Mortgage encumbering the Liens created thereby Property and that the Tenant tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided involved except that in no event shall termination by Borrower terminate or accept the acceptance of surrender by a tenant of any Lease by a Tenant shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; Property provided, however, that no such termination or surrender of any Lease covering more than the Relevant Leasing Threshold will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for which consent may be withheld in the Leasesole discretion of Lender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents without the prior written consent of Lender, which consent may be withheld in the sole discretion of Lender; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments assignment in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have Notwithstanding the foregoing, Borrower may, without the prior written consent of Lender, terminate any Lease which demises less than the Relevant Leasing Threshold under any of the following circumstances: (i) the tenant under said Lease is in default beyond any applicable grace and cure period, and Borrower has the right to require each new Tenant terminate such Lease; (ii) such termination is permitted by the terms of the Lease in question and Borrower has secured an obligation from a third party to execute lease the space under the Lease to be terminated at a rental equal to or higher than the rental due under the Lease to be terminated; and deliver (iii) if the tenant under the Lease to Lender be terminated, has executed a subordinationright under said Lease to terminate its lease upon payment of a termination fee to Borrower, non-disturbance of possession and attornment agreement has in formfact terminated its lease and paid said fee, content and manner of execution reasonably acceptable to LenderBorrower may accept said termination.
Appears in 2 contracts
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc), Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Leasing Matters. Any (a) Borrower may not enter into a proposed Lease executed after (including the date hereof (and any amendment renewal or termination thereofextension of an existing Lease, unless such renewal or extension is expressly provided for in such existing Lease) shall require without the prior written consent of Lender; provided, which consent however, the foregoing shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies not limit Operating Lessee's right to sublet any portion of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed the Properties pursuant to have approved all renewals the terms of Leases and all proposed Leases so long as the same (a) provide for rental rates comparable to existing local market rates, contain reasonable market rate terms and do not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, Operating Lease.
(b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (ai) shall observe and perform all the obligations imposed upon the lessor landlord under the Leases in a commercially reasonable mannerOperating Lease and shall not do or permit to be done anything to impair the value of the Operating Lease as security for the Debt; (bii) shall promptly send copies to Lender of all notices of default which Borrower shall receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases Operating Lease upon the part of the Tenant thereunder Operating Lessee to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leaseperformed; (civ) shall not collect any of the Rents more than one three (13) month months in advance (other than except security deposits required pursuant to such Leaseshall not be deemed Rents collected in advance); (dv) shall not execute any other assignment of the lessor’s landlord's interest in the Leases Operating Lease or the Rents Rents; and (except to Lender pursuant to the Loan Documents); (evi) shall not alterconsent to any assignment of or subletting under the Operating Lease not in accordance with its terms, without the prior written consent of Lender.
(c) Borrower may not, without the prior written consent of Lender, amend, modify or change waive the provisions of the Operating Lease or terminate, reduce Rents under, accept a surrender of space under, or shorten the term of, the Operating Lease (including the UHaul Guaranty, any letter of credit or other credit support with respect thereto).
(d) Notwithstanding anything to the contrary contained herein or any of the other Loan Documents, Borrower may amend or modify the terms of the Leases; Negative Pledge Agreement, the Mercury 99 Guaranty and/or the Non-Compete Agreement without the prior written consent of Lender.
(e) Notwithstanding anything to the contrary contained in this Section 5.13, Operating Lessee may enter into subleases without the prior written consent of Lender provided (i) such subleases are in compliance with the terms of the Operating Lease and the Subordination Agreement, (ii) Borrower shall have no obligations (whether financial or otherwise) under such subleases and (fiii) shall execute and deliver at Operating Lessee is not relieved of its obligations, as primary obligor, (whether financial or otherwise) under the request Operating Lease as a result of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lendersubleases.
Appears in 2 contracts
Samples: Loan Agreement (Corporate Property Associates 16 Global Inc), Loan Agreement (Corporate Property Associates 15 Inc)
Leasing Matters. (a) Any Lease Major Lease, including any amendment, modification or supplement thereto, executed after the date hereof (and any amendment or termination thereof) Closing Date shall require be subject to the prior written consent approval of Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of such Leases as are identified by Lender (including all Leases, amendments thereof and if requested by Lender, provided that Borrower shall not be required to deliver copies of all Leases more frequently than two (2) times in any related agreementscalendar year). Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates and other terms comparable or superior to then-existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would have any materially adversely affect adverse effect on Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course Documents or the value of businessthe applicable Individual Property. All Leases executed after the date hereof Closing Date shall provide that they are subordinate to the Security Instrument and Mortgage encumbering the Liens created thereby applicable Individual Property and that the Tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Lender, at the request of Borrower, shall enter into a subordination, attornment and non-disturbance agreement in the form attached hereto as Exhibit A (with such modifications thereto as may be reasonably acceptable to Lender) or in such other form that is reasonably satisfactory to Lender and such Tenant (a “Non-Disturbance Agreement”) with any Tenant entering into a Material Lease, including a Major Lease (other than a Lease to an Affiliate of Borrower), after the Closing Date. All actual and reasonable, out-of-pocket costs and expenses of Lender and Servicer in connection with the negotiation, preparation, execution and delivery by Lender and Servicer of any Non-Disturbance Agreement, including, without limitation, reasonable attorneys’ fees and disbursements and the current fee being assessed by Servicer in connection therewith, shall be paid by Borrower.
(b) Borrower shall (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Individual Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Lease; (c) shall not collect any of the Rents more than one (1) month in advance (other than security deposits required pursuant to such Lease); (d) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to the Loan Documents); (e) shall not alter, modify or change the terms of the Leases; involved and (fiii) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. .
(c) Lender shall have grant or deny with a reasonable explanation any consent required hereunder within fifteen (15) days after the right receipt of the applicable request and all documents in connection therewith. In the event that Lender fails to require each new Tenant respond within said fifteen (15) day period, such failure shall be deemed to execute be the consent and deliver approval of Lender if (A) Borrower has delivered to Lender the applicable documents, with the notation “IMMEDIATE RESPONSE REQUIRED, FAILURE TO RESPOND TO THIS APPROVAL REQUEST WITHIN FIFTEEN (15) DAYS FROM RECEIPT SHALL BE DEEMED TO BE LENDER’S APPROVAL” prominently displayed in bold, all caps and fourteen (14) point or larger font in the transmittal letter requesting approval and (B) Lender does not approve or reject (with a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lenderreasonable explanation) the applicable request within fifteen (15) days from the date Lender receives the request as evidenced by a certified mail return receipt or confirmation by a reputable national overnight delivery service that the same has been delivered.
Appears in 2 contracts
Samples: Loan Agreement (Brixmor Property Group Inc.), Senior Mezzanine Loan Agreement (Brixmor Property Group Inc.)
Leasing Matters. Any (a) Owner and Operating Tenant shall not amend or modify the Operating Lease executed after with respect to the date hereof term, rent (other than as set forth in this Section 5.1.20(a)(v) below), other payments or other financial matters. Further, Owner and Operating Tenant shall not amend or modify the Operating Lease in any amendment or termination thereof) shall require material matter without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed. Borrower (i) shall keep the Operating Lease in full force and effect, (ii) shall observe and perform its respective obligations under the Operating Lease, (iii) shall not terminate the Operating Lease, (iv) shall promptly deliver to Lender all notices sent or received under the Operating Lease, and (v) shall exercise all options to extend the term of the Operating Lease, each for an additional five (5) year term at a rental rate which shall be “market rent” in accordance with REIT rules requirements, which “market rent” shall be evidenced by a transfer pricing report prepared by an independent national accounting firm, which will be delivered to Lender upon request and with no other modifications to the Operating Lease. Borrower shall notify and deliver to Lender reasonable documentation evidencing the new rental rate promptly upon execution thereof.
(b) Any Sublease with respect to the Property written after the date hereof shall be subject to the prior written approval of Lender’s sole and absolute discretion, which approval shall not be unreasonably withheld, conditioned or delayed. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreementsSubleases. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases Subleases and all proposed Leases so long as the same (a) Subleases shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases Subleases executed after the date hereof shall provide that they are subordinate to the Security Instrument and Mortgage encumbering the Liens created thereby Property and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of salesale (provided such subordination and attornment may be conditioned upon Lender’s execution and delivery to and for the benefit of Tenant under such Sublease of a commercially reasonable non-disturbance agreement). Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases Subleases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases Subleases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to materially impair the value of the Property involved, provided involved except that in no event shall termination by Borrower terminate or accept the acceptance of surrender of any Lease by a Tenant of any Subleases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Lease; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesSubleases in any material respect in a manner prohibited by the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Notwithstanding anything to the contrary contained herein, (x) Borrower shall not enter into a lease of all or substantially all of the Property without Lender’s prior written consent and (y) all new Subleases and all amendments, modifications, extensions, and renewals of existing Subleases with Tenants that are Affiliates of Borrower shall be subject to the prior written consent of Lender not to be unreasonably withheld, conditioned or delayed.
(c) To the extent Lender’s written approval is required pursuant to this Section 5.1.20 to any Sublease or modification of Sublease, and/or Borrower requests that Lender approve any tenant improvement work required to be performed by Borrower in connection with such Sublease in order for such amounts not to count towards the Threshold Amount for alterations set forth in Section 5.1.21 below, Borrower’s written request therefor shall be delivered together with such materials reasonably requested by Lender in order to evaluate such request (it being acknowledged and agreed that no request for consent shall be effective unless and until such materials have the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable been delivered to Lender) and shall conspicuously state, in large bold type, that “PURSUANT TO SECTION 5.1.20 OF THE LOAN AGREEMENT, THIS IS A REQUEST FOR LENDER’S CONSENT FOR A SUBLEASE. LENDER’S RESPONSE IS REQUIRED WITHIN TEN (10) BUSINESS DAYS” and the envelope containing the request must be marked “PRIORITY”. In the event that Lender fails to approve or disapprove the written request with respect to such Sublease within such ten (10) Business Day period, then Lender’s consent shall be deemed to have been granted.
Appears in 2 contracts
Samples: Loan Agreement (Procaccianti Hotel Reit, Inc.), Loan Agreement (Procaccianti Hotel Reit, Inc.)
Leasing Matters. Any Lease new Major Leases executed after the date hereof (hereof, and any amendment all modifications, renewals or termination thereof) terminations of existing Major Leases, shall require the prior written consent of be approved by Lender, which consent approval shall not be unreasonably withheld. Any Lease modification or renewal that causes an existing Lease to become a Major Lease, shall be in approved by Lender’s sole and absolute discretion, which approval shall not be unreasonably withheld. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby Mortgage and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (a) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (b) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided involved except that in no event shall termination by Borrower terminate or accept the acceptance of surrender by a tenant of any Lease by a Tenant Leases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that and no such termination or surrender of any Lease will be permitted allowed with respect to any Major Lease without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (c) shall not collect any of the Rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (d) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (e) shall not alter, modify or change the terms of any Lease in a manner inconsistent with the Leasesprovisions of the Loan Documents nor alter, modify or change the terms of any Major Lease, without the prior written consent of Lender; and (f) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender Notwithstanding anything to the contrary contained herein, Borrower shall have not enter into a lease of all or substantially all of the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Property without Lender’s prior written consent.
Appears in 2 contracts
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Leasing Matters. Any (i) If the REO Subsidiary (or Property Manager on behalf of the REO Subsidiary) enters into a Lease executed after Agreement with respect to a Rental Property, the date hereof REO Subsidiary shall ensure that such Lease Agreement (and any amendment or termination thereofA) shall require the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) provide provides for rental rates and terms comparable to existing local market ratesrates and terms, contain reasonable market rate terms (B) is an arms-length transaction with a bona fide, independent third party Tenant, (C) does not have a material adverse effect on the value or quality of the related Rental Property, (D) is written on one of the standard forms of lease approved by Buyer, (E) provides for a rental term that is not less than twelve (12) months and (F) is in compliance with all applicable law in all material respects. All proposed Lease Agreements which do not contain any terms satisfy the requirements set forth in this Section 13(ee)(i) shall be subject to the prior written approval of Buyer. At Buyer’s request, the REO Subsidiary shall promptly deliver to Buyer copies of all Lease Agreements which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after pursuant to this Section 13(ee)(i) together with the date hereof shall provide REO Subsidiary’s certification that they are subordinate to the Security Instrument and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender or any other purchaser it has satisfied all of the Property at a sale by foreclosure conditions of this Section 13(ee)(i).
(or deed in lieu thereofii) or power the REO Subsidiary shall (A) ensure that all of sale. Borrower (a) shall observe and perform the obligations imposed upon the lessor lessee under the Leases in a commercially reasonable mannerapplicable Lease Agreements are observed and performed and shall not do or permit to be done anything to impair the value of any of the applicable Lease Agreements; (bB) shall enforce all of the material terms, covenants and conditions contained in the Leases applicable Lease Agreements upon the part of the Tenant tenant thereunder to be observed or performed performed; (C) promptly send copies to Buyer of all notices of default or other material matters which the REO Subsidiary sends or receives with respect to the applicable Lease Agreements and (D) not consent to any assignment of or subletting under any Lease Agreements except in accordance with their respective terms.
(iii) the REO Subsidiary shall not amend, modify or waive, or permit the amendment, modification or waiver of, the provisions of any Lease Agreement or terminate, reduce rents under, accept a commercially reasonable manner and in a manner which surrender of space under, or shorten the term of, any Lease Agreement (including any guaranty, letter of credit or other credit support with respect thereto) without obtaining Buyer’s consent except (A) with respect to any such action that does not impair have a material adverse effect on the value of the related Rental Property involvedtaken as a whole or (B) as the REO Subsidiary (or Property Manager acting on behalf of the REO Subsidiary) may otherwise determine in its reasonable business judgment, and provided that such Lease Agreement, as amended, modified or waived, is otherwise in no event shall Borrower terminate or accept compliance with the surrender requirements of any this Agreement. For the avoidance of doubt, a termination of a Lease by Agreement with a Tenant unless by reason who is in default beyond applicable notice and grace periods shall not be considered an action which has a material adverse effect on the value of the related Rental Property taken as a Tenant default and then only whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in a commercially reasonable manner this Section 13(ee)(iii) shall be subject to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent approval of Lender Buyer and its counsel, at the REO Subsidiary’s expense. At Buyer’s request, the REO Subsidiary shall promptly deliver to Buyer or unless its designee copies of all such termination or surrender is specifically provided for in the Lease; (c) shall not collect any of the Rents more than one (1) month in advance (other than security deposits required amendments, modifications and waivers which are entered into pursuant to such Leasethis Section 13(ee)(iii); .
(div) the REO Subsidiary shall not execute any other assignment of the lessor’s interest (A) cause each related Tenant, in the Leases or the Rents (except to Lender pursuant to the Loan Documents); (e) shall not alter, modify or change accordance with the terms of the Leasesapplicable Lease Agreement to or shall itself, directly or through Property Manager to maintain each Rental Property in good condition and repair (except for ordinary wear and tear), (B) promptly repair, replace or rebuild any part of any Rental Property which may be destroyed by any casualty or become damaged, worn or dilapidated or which may be affected by any condemnation; (C) complete and pay for any structure at any time in the process of construction or repair on the related land of any Rental Property; and (fD) otherwise make all commercially reasonable efforts to preserve the value of each Rental Property, including re-leasing, liquidating and selling such Rental Property when appropriate in the REO Subsidiary’s reasonable business judgment.
(v) the REO Subsidiary shall execute and deliver at the request of Lender all such further assurancesuse its reasonable best efforts to cause each related Tenant, confirmations and assignments in connection accordance with the Leases terms of the applicable Lease Agreement to, or shall itself, directly or through Property Manager, ensure that: (A) all uses and operations on or of the Rental Properties are free of Environmental Issues and in compliance with permits issued pursuant thereto and (B) the Rental Properties shall be kept free and clear of all Liens and other encumbrances that may be imposed as Lender shall from time a result of any Environmental Issue, whether due to time reasonably require. Lender shall have any act or omission of the right to require each REO Subsidiary, Tenant or any other person or entity.
(vi) In the event that a Tenant under a Rental Property is replaced with a new Tenant to execute and upon request from Buyer, the REO Subsidiary shall deliver to Lender Custodian a subordinationTenant Instruction Notice duly executed in blank for such new Tenant, non-disturbance together with a copy of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lenderthe related Lease Agreement for such new Tenant.
Appears in 2 contracts
Samples: Master Repurchase Agreement (PennyMac Mortgage Investment Trust), Master Repurchase Agreement (PennyMac Mortgage Investment Trust)
Leasing Matters. Any Material Lease executed (except for expansions of existing Tenants pursuant to the terms of their respective Leases) with respect to the Property written after the date hereof (and any amendment or termination thereof) hereof, shall require the prior written consent of be approved by Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld, conditioned or delayed. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby Mortgage and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided involved except that in no event shall termination by Borrower terminate or accept the acceptance of surrender by a tenant of any Lease by a Tenant Leases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Material Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents without Lender’s prior written consent which shall not be unreasonably withheld; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Notwithstanding anything to the contrary contained herein, Borrower shall not enter into a lease of all or substantially all of the Property without Lender’s prior written consent. Further notwithstanding anything to the contrary contained herein, Borrower shall provide Lender at least fifteen (15) days prior notice for the approval or rejection of any proposed Lease demising over 10,000 square feet (each a “Material Lease”). In the event that Lender fails to respond within the required time period, such failure shall have be deemed to be the right to require each new Tenant to execute consent and deliver approval of the Material Lease by Lender if (I) Borrower has delivered to Lender a subordinationall required documents and information necessary to adequately and completely evaluate the Material Lease, non-disturbance (II) Borrower has resubmitted the Material Lease with the notation “IMMEDIATE RESPONSE REQUIRED, FAILURE TO RESPOND TO THIS LEASE APPROVAL REQUEST WITHIN FIFTEEN (15) BUSINESS DAYS FROM RECEIPT SHALL BE DEEMED TO BE LENDER’S APPROVAL OF THE LEASE” prominently displayed in bold, all caps and fourteen (14) point or larger font at the top of possession each page of the Material Lease and attornment agreement the envelope containing such Material Lease and (III) Lender does not approve or reject the proposed Material Lease within fifteen (15) Business Days from the date Lender receives the resubmitted request; provided, however, in form, content and manner no event shall Lender’s consent be deemed given without the written approval of execution reasonably acceptable to LenderLender if the Lease is for 15,000 square feet or greater.
Appears in 2 contracts
Samples: Loan Agreement (Acadia Realty Trust), Loan Agreement (Acadia Realty Trust)
Leasing Matters. Any (a) Borrower shall not (and shall cause Mortgage Borrower and Guarantor (Operating Lease) not to), without the prior written consent of Lender (and, if a Securitization shall have occurred, Borrower shall have obtained and delivered to Lender a Rating Agency Confirmation) restate, materially modify, materially amend or materially supplement (or permit the restatement, material modification, amendment or supplement of) any Operating Lease or Operating Lease Guaranty (provided, that any modification, amendment or supplement affecting any of the economic terms of any Operating Lease or any of the terms of the Operating Lease Guaranty shall be deemed to be material for purposes hereof), terminate or accept the surrender (or permit the termination or surrender) of any Operating Lease or Operating Lease Guaranty, or release or materially waive (or permit the release or material waiver of) the Operating Company or Guarantor (Operating Lease) from the performance or observance of any obligation or condition under the Operating Leases or Operating Lease Guaranty. In connection with a material modification, Lender may request, and in such event, Borrower shall not effect such modification without, an Additional True Lease
(a) to the contrary, (x) Lender’s consent to any amendment, modification or supplement of the Operating Lease (or any new Operating Lease) or the Operating Lease Guaranty may also be conditioned on the delivery by Borrower, upon the reasonable request of Lender, of an Additional Insolvency Opinion and/or an Additional True Lease Opinion acceptable to Lender (and, if a Securitization shall have occurred, acceptable to the Rating Agencies), and (y) Lender’s consent to any assignment of any Operating Lease or Operating Lease Guaranty (or of any interest therein) or any material amendment, material modification or material supplement of any Operating Lease shall also be conditioned on the delivery by Borrower, upon the reasonable request of Lender, of an Additional Insolvency Opinion and an Additional True Lease Opinion acceptable to Lender (and, if a Securitization shall have occurred, acceptable to the Rating Agencies).
(b) Borrower shall not permit (or consent to) an assignment by any Operating Company of any such Operating Company’s interest(s) under any Operating Lease or an assignment by any Mortgage Borrower of any such Mortgage Borrower’s interest(s) under any Operating Lease Guaranty without, in each case, Lender’s prior written consent (and, if a Securitization shall have occurred, at Lender’s request, without Borrower providing to Lender a Rating Agency Confirmation and an Additional True Lease Opinion).
(c) All space Leases and all renewals of space Leases executed after the date hereof entered into by Operating Company shall (and any amendment or termination thereof) shall require the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (ai) provide for rental rates rates, rent credits and free rent periods comparable to existing local market ratesrates for comparable properties, contain (ii) be on commercially reasonable market rate terms terms, (iii) provide that such Lease is subordinate to the Mortgage encumbering the Individual Property in question and do that the lessee will attorn to Mortgage Lender and any purchaser at a foreclosure sale; (iv) not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents; (v) not grant to the Tenants thereunder any option or right to purchase the applicable Individual Property (or any portion thereof); and (v) in the case of Major Leases, have initial terms less than twenty (b20) are for a lease term not exceeding one yearconsecutive years, including all extensions, in each case (c) are with individual, residential, non-commercial tenants, and unless otherwise consented to by Lender pursuant to clause (d) have been below).
(i) Any Major Lease entered into by Borrower in its ordinary course of business. All Leases Operating Company with respect to an Individual Property executed after the date hereof (and any renewal of any Major Lease with respect to an Individual Property), and any space Lease or space Lease renewal proposed to be entered into by Operating Company after the date hereof and that does not meet the criteria set forth in Sections 5.1.20(a) and subparagraph (c) above, shall provide that they are subordinate be subject to the Security Instrument prior written approval of Lender, which approval shall not be unreasonably withheld, conditioned or delayed. Borrower shall not terminate or accept the surrender of (and shall not permit Operating Company or Mortgage Borrower to terminate or accept the Liens created thereby surrender of) a Major Lease (unless by reason of a tenant default) without the consent of Lender.
(ii) Every submission to Lender of any proposed Major Lease (or Major Lease renewal, amendment, modification or termination) for Lender’s approval shall be forwarded to Lender together with a notice from Borrower (in bold typeface) that states “YOUR FAILURE TO RESPOND TO THIS NOTICE AND REQUEST FOR APPROVAL WITHIN TEN (10) BUSINESS DAYS OF YOUR RECEIPT OF THIS NOTICE SHALL CONSTITUTE YOUR DEEMED CONSENT TO THE MATTERS DESCRIBED IN OR THAT ARE THE SUBJECT OF THIS NOTICE”. If Lender responds to Borrower’s request by identifying missing documents or materials that are incomplete or inaccurate (and that are the Tenant thereunder agrees to attorn subject of the request for approval), then Borrower shall re-submit such documents or materials to Lender for its approval together with a second notice from Borrower that complies with this section.
(iii) If Lender fails to approve or disapprove any other purchaser such proposed request or submission attached to a first notice or request sent by Borrower (or the matters that are the subject of the Property at re-submitted notice or request for approval) within ten (10) Business Days of receipt of same, Borrower shall re-submit such instruments or materials to Lender for Lender’s approval and give Lender a sale by foreclosure second notice (in bold typeface) that states “SECOND NOTICE — YOUR FAILURE TO RESPOND TO THIS NOTICE AND REQUEST FOR APPROVAL WITHIN FIVE (5) BUSINESS DAYS OF YOUR RECEIPT OF THIS NOTICE SHALL CONSTITUTE YOUR DEEMED CONSENT TO THE MATTERS DESCRIBED IN OR THAT ARE THE SUBJECT OF THIS NOTICE”. If Lender fails to respond to such second notice within five (5) Business Days of receipt of same, then Lender’s consent to the proposed request or deed in lieu thereofsubmission that is the subject of such notice shall be deemed granted.
(e) or power of sale. Borrower shall and shall cause Mortgage Borrower and Operating Company to (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Individual Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Lease; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. .
(f) Upon request, Borrower shall furnish Lender with executed copies of all new Leases or Lease renewals or amendments.
(g) Notwithstanding anything to the contrary contained herein, Borrower shall have the right not enter into (or permit Operating Company or Mortgage Borrower to require each new Tenant to execute and deliver to Lender enter into) a subordination, non-disturbance lease of possession and attornment agreement in form, content and manner all or substantially all of execution reasonably acceptable to any Individual Property without Lender’s prior consent.
Appears in 2 contracts
Samples: Second Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Leasing Matters. Any Lease executed after Borrower may not enter into a Lease, license or other occupancy agreement for any portion of the date hereof (and any amendment or termination thereof) shall require the Property without Lender’s prior written consent of Lenderconsent, which consent shall not be in unreasonably withheld, conditioned or delayed, provided, however, that after the Property shall have achieved the Required Ratios at Completion, Borrower shall not be required to obtain Lender’s sole and absolute discretion's approval of Leases for less than 15,000 square feet that otherwise satisfy the requirements of this Agreement. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby Mortgage and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided involved except that in no event shall termination by Borrower terminate or accept the acceptance of surrender by a tenant of any Lease by a Tenant Leases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such Lender, provided, further, that after the Property shall have achieved the Required Ratios at Completion, Borrower shall not be required to obtain Lender's approval for termination or surrender is specifically provided of Leases for in less than 15,000 square feet that otherwise satisfy the Leaserequirements of this Agreement; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents without Lender’s prior written consent which shall not be unreasonably withheld; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender Notwithstanding anything to the contrary contained herein, Borrower shall have not enter into a lease of all or substantially all of the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Property without Lender’s prior written consent.
Appears in 2 contracts
Samples: Building Loan Agreement (Acadia Realty Trust), Building Loan Agreement (Acadia Realty Trust)
Leasing Matters. Any Lease executed Leases with respect to the Property written after the date hereof (and any amendment or termination thereof) Closing Date for more than the Relevant Leasing Threshold square footage shall require be subject to the prior written consent approval of Lender, which consent approval may be given or withheld in the sole discretion of Lender. Lender shall approve or disapprove any such Lease within ten (10) Business Days of Lender’s receipt of a final execution draft of such Lease (including all exhibits, schedules, supplements, addenda or other agreements relating thereto) and a written notice from Borrower requesting Lender’s approval to such Lease, and such Lease shall be deemed approved, if Lender does not disapprove such Lease within said ten (10) Business Day period provided such written notice conspicuously states, in Lender’s sole and absolute discretionlarge bold type, that “PURSUANT TO SECTION 5.1.20 OF THE LOAN AGREEMENT, THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN TEN (10) BUSINESS DAYS OF LENDER’S RECEIPT OF SUCH LEASE AND WRITTEN NOTICE”. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain rates (unless such rental rates are otherwise set forth in the Leases executed prior to the Closing Date). All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof Closing Date shall provide that they are subordinate to the Security Instrument and Mortgage encumbering the Liens created thereby Property and that the Tenant tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided involved except that in no event shall termination by Borrower terminate or accept the acceptance of surrender by a tenant of any Lease by a Tenant shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease covering more than the Relevant Leasing Threshold will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for which consent may be withheld in the Leasesole discretion of Lender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents without the prior written consent of Lender, which consent may be withheld in the sole discretion of Lender; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments assignment in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have Notwithstanding the foregoing, Borrower may, without the prior written consent of Lender, terminate any Lease which demises less than the Relevant Leasing Threshold under any of the following circumstances: (i) the tenant under said Lease is in default beyond any applicable grace and cure period, and Borrower has the right to require each new Tenant terminate such Lease; (ii) such termination is permitted by the terms of the Lease in question and Borrower has secured an obligation from a third party to execute lease the space under the Lease to be terminated at a rental equal to or higher than the rental due under the Lease to be terminated; and deliver (iii) if the tenant under the Lease to Lender be terminated, has executed a subordinationright under said Lease to terminate its lease upon payment of a termination fee to Borrower, non-disturbance of possession and attornment agreement has in formfact terminated its lease and paid said fee, content and manner of execution reasonably acceptable to LenderBorrower may accept said termination.
Appears in 2 contracts
Samples: Loan Agreement (Inland American Real Estate Trust, Inc.), Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Leasing Matters. Any Lease executed after (a) Except as otherwise consented to by Lender in writing, all Leases shall be written on the date hereof standard form of lease for such Individual Property delivered to Lender prior to the closing of the Loan. No material changes (and any amendment or termination thereofother than changes which are in the ordinary course of the Borrower’s business and/or are required by applicable law, so long as such changes do not have a Material Adverse Effect) shall require may be made to the standard form of lease without the prior written consent of LenderLender not to be unreasonably withheld or delayed. In addition, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) leases shall provide for rental rates and terms comparable to existing local market rates, contain reasonable market rate rates as determined by Borrower and terms and do not contain any terms which would materially adversely affect Lender’s rights under the Loan Documentsshall be arm’s‑length transactions with bona fide, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial independent third party tenants, and (d) have been entered into by Borrower in its ordinary course of business. All proposed commercial Leases executed after and modifications and renewals of existing Leases for commercial space shall be subject to the date hereof prior approval of Lender and its counsel, at Borrower’s expense, such approval not to be unreasonably withheld or delayed. All commercial Leases shall provide that they are subordinate to the Security Instrument and the Liens created thereby Mortgage and that the Tenant thereunder tenant agrees to attorn to Lender. Notwithstanding the foregoing, Lender or any other purchaser acknowledges that certain homesites are not leased to Tenants pursuant to written instruments. From and after the date hereof, Borrower shall agree to offer written Leases to new Tenants in accordance with its current ordinary course of the Property at a sale by foreclosure business practices and consistent with current market practices.
(or deed in lieu thereofb) or power of sale. Borrower (ai) shall observe and perform all the obligations imposed upon the lessor landlord under the Leases in a commercially reasonable mannerand shall not do or permit to be done anything to impair the value of the Leases as security for the Debt; (bii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value performed, short of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Propertytermination thereof; provided, however, that no such termination with respect to mobile home or surrender of any recreational vehicle community residential property, a residential Lease will may be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for terminated in the Leaseevent of a default by the tenant thereunder; (ciii) shall not collect any of the Rents more than one (1) month in advance advance, except for (other A) Rents aggregating in an amount equal to less than security deposits required pursuant five percent (5.0%) of the Operating Income of the Property and (B) Rents collected with respect to such Lease)recreational vehicle sites; and (div) shall not execute any other assignment of the lessorlandlord’s interest in the Leases or the Rents Rents.
(except c) Notwithstanding the provisions of subsection (a) above, renewals of existing commercial Leases and proposed Leases for commercial space shall not be subject to Lender the prior approval of Lender, provided all of the following conditions are satisfied: (i) the rental income pursuant to the Loan Documents); renewal or proposed Lease is not more than five (e5%) shall not alter, modify or change the terms percent of the Leases; total rental income for the Property (exclusive of any rental income from recreational vehicle sites), (ii) the renewal or proposed Lease has a base term of less than six (6) years including options to renew (other than leases for laundry facilities which may include a 10-year term), (iii) the renewal or proposed Lease is subject and subordinate to the Mortgage and the tenant thereunder shall have agreed to attorn to Lender, (iv) the renewal or proposed Lease is on the standard form of lease approved by Lender, (v) the renewal or proposed Lease does not contain any option, offer, right of first refusal, right of first offer or other similar right to acquire all or any portion of the Property, and (fvi) the renewal or proposed Lease provides for rental rates and terms comparable to existing market rates as determined by Borrower and terms and is an arm’s‑length transaction with a bona fide, independent third party tenant. Borrower shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance copies of possession and attornment agreement in form, content and manner all Leases which are entered into pursuant to the preceding sentence together with Borrower’s certification that it has satisfied all of the conditions of the preceding sentence within thirty (30) days after the execution reasonably acceptable to Lenderof the Lease.
Appears in 2 contracts
Samples: Loan Agreement (Sun Communities Inc), Loan Agreement (Sun Communities Inc)
Leasing Matters. (a) Any Major Lease executed after the date hereof (and any amendment or termination thereof) shall require the prior written consent of Lender.
(b) Upon request, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens Lien created thereby and that the Tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (a) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (b) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided except that in no event Borrower shall Borrower not terminate or accept the termination or cancellation of or surrender of any Lease by a Tenant of, any Lease unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Major Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Major Lease; (c) shall not collect any of the Rents more than one (1) month in advance (other than security deposits required pursuant to such Lease); (d) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (e) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (f) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Notwithstanding anything to the contrary contained herein, Borrower shall not enter into a Lease of all or substantially all of the Property without Lender’s prior written consent. Notwithstanding anything to the contrary contained herein, all new Leases and all amendments, modifications, extensions, and renewals of existing Leases with Tenants that are Affiliates of Borrower shall be subject to the prior written consent of Lender. Lender shall have the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender. Within five (5) business Days of the execution of a new Lease by Borrower or by Manager on behalf of Borrower, Borrower shall execute and deliver to such new Tenant a Payment Direction Letter with regard to such new Lease.
(c) If Lender’s written approval is required pursuant to this Section 5.1.20 to any Lease or modification for the Property, Borrower’s written request therefor shall be delivered together with such materials reasonably requested by Lender in order to evaluate such request (it being acknowledged and agreed that no request for consent shall be effective unless and until such materials have been delivered to Lender) and shall conspicuously state, in large bold type, that “PURSUANT TO SECTION 5.1.20 OF THE LOAN AGREEMENT, THIS IS A REQUEST FOR LENDER’S CONSENT. LENDER’S RESPONSE IS REQUESTED WITHIN TEN (10) BUSINESS DAYS. LENDER’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD WILL ENABLE BORROWER TO DELIVER A SECOND NOTICE REQUESTING LENDER’S CONSENT”. In the event Lender fails to approve or disapprove to such request within ten (10) Business Days of the effective date of such initial request, Borrower may deliver to Lender a second written request for approval, which second written request for approval shall conspicuously state in large bold type, that “THIS IS A REQUEST FOR LENDER’S CONSENT. LENDER’S CONSENT IS REQUESTED WITHIN FIVE (5) BUSINESS DAYS. THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN FIVE (5) BUSINESS DAYS’ OF LENDER’S RECEIPT OF THIS WRITTEN NOTICE”. In the event that Lender fails to approve or disapprove the second written request within such five (5) Business Day period, then Lender’s consent shall be deemed to have been granted.
Appears in 2 contracts
Samples: Loan Agreement (Inland Diversified Real Estate Trust, Inc.), Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Leasing Matters. Any Lease executed Major Leases with respect to the Property written after the date hereof (and any amendment or termination thereof) shall require be subject to the prior written consent approval of Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld, conditioned or delayed. Upon request, Borrower shall cause Mortgage Borrower or Operating Lessee to furnish Lender with true, correct and complete executed copies of all Leases; provided, amendments thereof that so long as no Event of Default has occurred and any related agreementsis continuing, Borrower shall not be required to cause Mortgage Borrower or Operating Lessee to deliver copies of all Leases more frequently than two (2) times per calendar year. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby Mortgage and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower shall cause Mortgage Borrower or Operating Lessee to (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided involved except that in no event shall termination by Mortgage Borrower terminate or accept the Operating Lessee or acceptance of surrender of any Lease by a Tenant of any Leases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Major Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leaseand rent for providing rooms, banquet and meeting space and services in the ordinary course of business); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Notwithstanding anything to the contrary contained herein, neither Mortgage Borrower nor Operating Lessee shall enter into a lease of all or substantially all of the Property without Lender’s prior written consent. Lender shall have grant or deny with a reasonable explanation any consent required hereunder within fourteen (14) days after the right receipt of the applicable request and all documents in connection therewith. In the event that Lender fails to require each new Tenant respond within said fourteen (14) day period, such failure shall be deemed to execute be the consent and deliver approval of Lender if (A) Borrower has delivered to Lender the applicable documents, with the notation “IMMEDIATE RESPONSE REQUIRED, FAILURE TO RESPOND TO THIS APPROVAL REQUEST WITHIN FOURTEEN (14) DAYS FROM RECEIPT SHALL BE DEEMED TO BE LENDER’S APPROVAL” prominently displayed in bold, all caps and fourteen (14) point or larger font in the transmittal letter requesting approval and (B) Lender does not approve or reject (with a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lenderreasonable explanation) the applicable request within fourteen (14) days from the date Lender receives such request as evidenced by a certified mail return receipt or confirmation by a reputable national overnight delivery service that the same has been delivered.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Strategic Hotels & Resorts, Inc), Mezzanine Loan Agreement (Strategic Hotels & Resorts, Inc)
Leasing Matters. Borrower shall not, without Lender's prior written consent, enter into, modify, amend or renew any Lease (x) for 10,000 or more square feet while an Event of Default is not occurring or (y) for any size while an Event of Default is continuing. Any Lease executed after the date hereof for less than 10,000 square feet that is entered into, modified, amended or renewed during a period of time when no Event of Default exists shall be deemed approved by Lender (and any amendment such Lease, a "Deemed Approved Lease"). If Lender does not approve or termination thereofdisapprove a Lease (other than a Deemed Approved Lease) shall require the prior written consent within ten (10) Business Days of Lender's receipt of such Lease and all information relating thereto reasonably requested by Lender, which consent such Lease shall be in Lender’s sole and absolute discretiondeemed approved. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to that are at or greater than existing local market rates, contain rates for space at properties similar to the Property. All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s 's rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and Mortgage encumbering the Liens created thereby Property and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser if it succeeds to the interest of Borrower in the Property at a sale by foreclosure (or deed in lieu thereof) or power of saleProperty. Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in Leases, other than immaterial obligations the failure of which to perform is not likely to have a commercially reasonable mannermaterial adverse effect on the Property or the applicable Lease(s); (bii) shall shall, in the exercise of its prudent business judgment, enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leaseperformed; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s 's interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent within the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender.
Appears in 2 contracts
Samples: Loan Agreement (Prime Group Realty Trust), Loan Agreement (Prime Group Realty Trust)
Leasing Matters. Any Lease executed after the date hereof (a) Borrower shall not (and any amendment or termination thereofshall cause Mortgage Borrower and Guarantor (Operating Lease) shall require not to), without the prior written consent of LenderLender (and, which consent if a Securitization shall be in Lender’s sole and absolute discretion. have occurred, Borrower shall furnish have obtained and delivered to Lender with truea Rating Agency Confirmation) restate, correct and complete executed copies materially modify, materially amend or materially supplement (or permit the restatement, material modification, amendment or supplement of) any Operating Lease or Operating Lease Guaranty (provided, that any modification, amendment or supplement affecting any of all Leases, amendments thereof and the economic terms of any related agreements. Without limitation, and as applicable, Lender Operating Lease or any of the terms of the Operating Lease Guaranty shall be deemed to be material for purposes hereof), terminate or accept the surrender (or permit the termination or surrender) of any Operating Lease or Operating Lease Guaranty, or release or materially waive (or permit the release or material waiver of) the Operating Company or Guarantor (Operating Lease) from the performance or observance of any obligation or condition under the Operating Leases or Operating Lease Guaranty. In connection with a material modification, Lender may request, and in such event, Borrower shall not effect such modification without, an Additional True Lease Opinion in form and substance reasonably satisfactory to Lender issued by Borrower’s counsel (at Borrower’s expense). Borrower shall not permit (or cause or permit Mortgage Borrower to permit) the prepayment of any rents under the Operating Leases for more than one (1) month prior to the due date thereof. Notwithstanding the foregoing, Lender’s consent shall not be required in connection with any modification, amendment or waiver of any provision of the Operating Lease as may be reasonably necessary to comply with the requirements of this Agreement or any other Loan Document or that makes the provisions of the Operating Lease consistent with the provisions of this Agreement or any other Loan Document. Notwithstanding anything contained in this Section 5.1.20
(a) to the contrary, (x) Lender’s consent to any amendment, modification or supplement of the Operating Lease (or any new Operating Lease) or the Operating Lease Guaranty may also be conditioned on the delivery by Borrower, upon the reasonable request of Lender, of an Additional Insolvency Opinion and/or an Additional True Lease Opinion acceptable to Lender, and (y) Lender’s consent to any assignment of any Operating Lease or Operating Lease Guaranty (or of any interest therein) or any material amendment, material modification or material supplement of any Operating Lease shall also be conditioned on the delivery by Borrower, upon the reasonable request of Lender, of an Additional Insolvency Opinion and an Additional True Lease Opinion acceptable to Lender.
(b) Borrower shall not permit (or consent to) an assignment by any Operating Company of any such Operating Company’s interest(s) under any Operating Lease or an assignment by any Mortgage Borrower of any such Mortgage Borrower’s interest(s) under any Operating Lease Guaranty without, in each case, Lender’s prior written consent (and, if a Securitization shall have approved occurred, at Lender’s request, without Borrower providing to Lender a Rating Agency Confirmation and an Additional True Lease Opinion). For the avoidance of doubt, the foregoing sentence shall not restrict space leases and subleases otherwise permitted hereunder.
(c) Subject to clause (d) below, each Operating Company may enter into space leases and renewals of space Leases. All such space Leases and all renewals of space Leases and all proposed Leases so long as executed after the same Original Closing Date entered into by Operating Company shall
(ai) provide for rental rates rates, rent credits and free rent periods comparable to existing local market rates, contain rates for comparable properties; (ii) be on commercially reasonable market rate terms terms; (iii) provide that such Lease is subordinate to the Mortgage encumbering the Individual Property in question and do that the lessee will attorn to Mortgage Lender and any purchaser at a foreclosure sale; (iv) not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents; (v) not grant to the tenants thereunder any option or right to purchase the applicable Individual Property (or any portion thereof); and (vi) in the case of Major Leases, have initial terms less than twenty (b20) are for a lease term consecutive years, in each case (unless otherwise consented to by Lender pursuant to clause (d) below).
(i) Any Major Lease entered into by Operating Company with respect to an Individual Property executed after the Original Closing Date (and any renewal of any Major Lease with respect to an Individual Property), and any space Lease or space Lease renewal proposed to be entered into by Operating Company after the Original Closing Date and that does not exceeding one year, including all extensions, meet the criteria set forth in Sections 5.1.20(a) and subparagraph (c) above, shall be subject to the prior written approval of Lender, which approval shall not be unreasonably withheld, conditioned or delayed. Borrower shall not terminate or accept the surrender of (and shall not permit Operating Company or Mortgage Borrower to terminate or accept the surrender of) a Major Lease (unless by reason of a tenant default) without the consent of Lender.
(ii) Every submission to Lender of any proposed Major Lease (or Major Lease renewal, amendment, modification or termination) or proposed space Lease or space Lease renewal that does not meet the criteria set forth in Sections 5.1.20(a) and subparagraph (c) above for Lender’s approval shall be forwarded to Lender together with a notice from Borrower (in bold typeface) that states “YOUR FAILURE TO RESPOND TO THIS NOTICE AND REQUEST FOR APPROVAL WITHIN TEN (10) BUSINESS DAYS OF YOUR RECEIPT OF THIS NOTICE SHALL CONSTITUTE YOUR DEEMED CONSENT TO THE MATTERS DESCRIBED IN OR THAT ARE THE SUBJECT OF THIS NOTICE”. If Lender responds to Borrower’s request by identifying missing documents or materials that are incomplete or inaccurate (and that are the subject of the request for approval), then Borrower shall re-submit such documents or materials to Lender for its approval together with individual, residential, non-commercial tenants, and a second notice from Borrower that complies with this section.
(diii) have been entered into If Lender fails to approve or disapprove any such proposed request or submission attached to a first notice or request sent by Borrower (or the matters that are the subject of the re-submitted notice or request for approval) within ten (10) Business Days of receipt of same, Borrower shall re-submit such instruments or materials to Lender for Lender’s approval and give Lender a second notice (in its ordinary course bold typeface) that states “SECOND NOTICE — YOUR FAILURE TO RESPOND TO THIS NOTICE AND REQUEST FOR APPROVAL WITHIN FIVE (5) BUSINESS DAYS OF YOUR RECEIPT OF THIS NOTICE SHALL CONSTITUTE YOUR DEEMED CONSENT TO THE MATTERS DESCRIBED IN OR THAT ARE THE SUBJECT OF THIS NOTICE”. If Lender fails to respond to such second notice within five (5) Business Days of business. All Leases executed after the date hereof shall provide that they are subordinate receipt of same, then Lender’s consent to the Security Instrument proposed request or submission that is the subject of such notice shall be deemed granted.
(e) Borrower shall and the Liens created thereby shall cause Mortgage Borrower and that the Tenant thereunder agrees Operating Company to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereofi) or power of sale. Borrower (a) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Individual Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Lease; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. .
(f) Upon request, Borrower shall furnish Lender with executed copies of all new Leases or Lease renewals or amendments.
(g) Notwithstanding anything to the contrary contained herein, Borrower shall have the right not enter into (or permit Operating Company or Mortgage Borrower to require each new Tenant to execute and deliver to Lender enter into) a subordination, non-disturbance lease of possession and attornment agreement in form, content and manner all or substantially all of execution reasonably acceptable to any Individual Property without Lender’s prior consent.
Appears in 2 contracts
Samples: Fourth Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Leasing Matters. Any Lease executed after the date hereof (a) Borrower shall not (and any amendment or termination thereofshall cause Mortgage Borrower and Guarantor (Operating Lease) shall require not to), without the prior written consent of LenderLender (and, which consent if a Securitization shall be in Lender’s sole and absolute discretion. have occurred, Borrower shall furnish have obtained and delivered to Lender with truea Rating Agency Confirmation) restate, correct and complete executed copies materially modify, materially amend or materially supplement (or permit the restatement, material modification, amendment or supplement of) any Operating Lease or Operating Lease Guaranty (provided, that any modification, amendment or supplement affecting any of all Leases, amendments thereof and the economic terms of any related agreements. Without limitation, and as applicable, Lender Operating Lease or any of the terms of the Operating Lease Guaranty shall be deemed to be material for purposes hereof), terminate or accept the surrender (or permit the termination or surrender) of any Operating Lease or Operating Lease Guaranty, or release or materially waive (or permit the release or material waiver of) the Operating Company or Guarantor (Operating Lease) from the performance or observance of any obligation or condition under the Operating Leases or Operating Lease Guaranty. In connection with a material modification, Lender may request, and in such event, Borrower shall not effect such modification without, an Additional True Lease Opinion in form and substance reasonably satisfactory to Lender issued by Borrower’s counsel (at Borrower’s expense). Borrower shall not permit (or cause or permit Mortgage Borrower to permit) the prepayment of any rents under the Operating Leases for more than one (1) month prior to the due date thereof. Notwithstanding the foregoing, Lender’s consent shall not be required in connection with any modification, amendment or waiver of any provision of the Operating Lease as may be reasonably necessary to comply with the requirements of this Agreement or any other Loan Document or that makes the provisions of the Operating Lease consistent with the provisions of this Agreement or any other Loan Document. Notwithstanding anything contained in this Section 5.1.20
(a) to the contrary, (x) Lender’s consent to any amendment, modification or supplement of the Operating Lease (or any new Operating Lease) or the Operating Lease Guaranty may also be conditioned on the delivery by Borrower, upon the reasonable request of Lender, of an Additional Insolvency Opinion and/or an Additional True Lease Opinion acceptable to Lender, and (y) Lender’s consent to any assignment of any Operating Lease or Operating Lease Guaranty (or of any interest therein) or any material amendment, material modification or material supplement of any Operating Lease shall also be conditioned on the delivery by Borrower, upon the reasonable request of Lender, of an Additional Insolvency Opinion and an Additional True Lease Opinion acceptable to Lender.
(b) Borrower shall not permit (or consent to) an assignment by any Operating Company of any such Operating Company’s interest(s) under any Operating Lease or an assignment by any Mortgage Borrower of any such Mortgage Borrower’s interest(s) under any Operating Lease Guaranty without, in each case, Lender’s prior written consent (and, if a Securitization shall have approved occurred, at Lender’s request, without Borrower providing to Lender a Rating Agency Confirmation and an Additional True Lease Opinion). For the avoidance of doubt, the foregoing sentence shall not restrict space leases and subleases otherwise permitted hereunder.
(c) Subject to clause (d) below, each Operating Company may enter into space leases and renewals of space Leases. All such space Leases and all renewals of space Leases and all proposed Leases so long as executed after the same Original Closing Date entered into by Operating Company shall (ai) provide for rental rates rates, rent credits and free rent periods comparable to existing local market rates, contain rates for comparable properties; (ii) be on commercially reasonable market rate terms terms; (iii) provide that such Lease is subordinate to the Mortgage encumbering the Individual Property in question and do that the lessee will attorn to Mortgage Lender and any purchaser at a foreclosure sale; (iv) not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (a) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (b) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Lease; (c) shall not collect any of the Rents more than one (1) month in advance (other than security deposits required pursuant to such Lease); (d) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to the Loan Documents); (e) shall not alter, modify or change the terms of the Leases; and (f) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender.;
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc), Fifth Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Leasing Matters. Any Lease executed Leases with respect to the Property written after the date hereof (and any amendment or termination thereof) hereof, for more than 3,000 square feet shall require be subject to the prior written consent approval of Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld, conditioned or delayed. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided (or any portion thereof) involved except that in no event shall termination by Borrower terminate or accept the acceptance of surrender of any Lease by a Tenant of any Leases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the PropertyProperty (or any portion thereof); provided, however, that no such termination or surrender of any Lease covering more than 3,000 square feet will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender Notwithstanding anything to the contrary contained herein, Borrower shall have not enter into a lease of all or substantially all of any Individual Property without Lender’s prior written consent. Notwithstanding anything to the right contrary contained herein, all new Leases and all amendments, modifications, extensions, and renewals of existing Leases with Tenants that are Affiliates of Borrower shall be subject to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance the prior written consent of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender.
Appears in 2 contracts
Samples: Loan Agreement (TNP Strategic Retail Trust, Inc.), Loan Agreement (TNP Strategic Retail Trust, Inc.)
Leasing Matters. Any Lease executed Leases with respect to the Property written after the date hereof (and any amendment or termination thereof) Closing Date for more than the Relevant Leasing Threshold square footage shall require be subject to the prior written consent approval of Lender, which consent approval may be given or withheld in the sole discretion of Lender. Lender shall approve or disapprove any such Lease within ten (10) Business Days of Lender's receipt of a final execution draft of such Lease (including all exhibits, schedules, supplements, addenda or other agreements relating thereto) and a written notice from Borrower requesting Lender's approval to such Lease, and such Lease shall be deemed approved, if Lender does not disapprove such Lease within said ten (10) Business Day period PROVIDED such written notice conspicuously states, in Lender’s sole and absolute discretionlarge bold type, that "PURSUANT TO SECTION 5.1.20 OF THE LOAN AGREEMENT, THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN TEN (10) BUSINESS DAYS OF LENDER'S RECEIPT OF SUCH LEASE AND WRITTEN NOTICE". Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain rates (unless such rental rates are otherwise set forth in the Leases executed prior to the Closing Date). All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect impair Lender’s 's rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof Closing Date shall provide that they are subordinate to the Security Instrument and Mortgage encumbering the Liens created thereby Property and that the Tenant tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower Borrower
(ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided involved except that in no event shall termination by Borrower terminate or accept the acceptance of surrender by a tenant of any Lease by a Tenant shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; providedPROVIDED, howeverHOWEVER, that no such termination or surrender of any Lease covering more than the Relevant Leasing Threshold will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for which consent may be withheld in the Leasereasonable discretion of Lender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s 's interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents without the prior written consent of Lender, which consent may be withheld in the sole discretion of Lender; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have Notwithstanding the foregoing, Borrower may, without the prior written consent of Lender, terminate any Lease which demises less than the Relevant Leasing Threshold under any of the following circumstances: (i) the tenant under said Lease is in default beyond any applicable grace and cure period, and Borrower has the right to require each new Tenant terminate such Lease; (ii) such termination is permitted by the terms of the Lease in question and Borrower has secured an obligation from a third party to execute lease the space under the Lease to be terminated at a rental equal to or higher than the rental due under the Lease to be terminated; and deliver (iii) if the tenant under the Lease to Lender be terminated, has executed a subordinationright under said Lease to terminate its lease upon payment of a termination fee to Borrower, non-disturbance of possession and attornment agreement has in formfact terminated its lease and paid said fee, content and manner of execution reasonably acceptable to LenderBorrower may accept said termination.
Appears in 2 contracts
Samples: Loan Agreement (Behringer Harvard Reit I Inc), Loan Agreement (Behringer Harvard Reit I Inc)
Leasing Matters. Any Lease executed after the date hereof (a) Borrower shall not (and any amendment or termination thereofshall cause Mortgage Borrower and Guarantor (Operating Lease) shall require not to), without the prior written consent of Lender (and, if a Securitization shall have occurred, Borrower shall have obtained and delivered to Lender a Rating Agency Confirmation) restate, materially modify, materially amend or
(a) to the contrary, (x) Lender’s consent to any amendment, modification or supplement of the Operating Lease (or any new Operating Lease) or the Operating Lease Guaranty may also be conditioned on the delivery by Borrower, upon the reasonable request of Lender, which consent of an Additional Insolvency Opinion and/or an Additional True Lease Opinion acceptable to Lender (and, if a Securitization shall be in have occurred, acceptable to the Rating Agencies), and (y) Lender’s sole consent to any assignment of any Operating Lease or Operating Lease Guaranty (or of any interest therein) or any material amendment, material modification or material supplement of any Operating Lease shall also be conditioned on the delivery by Borrower, upon the reasonable request of Lender, of an Additional Insolvency Opinion and absolute discretion. an Additional True Lease Opinion acceptable to Lender (and, if a Securitization shall have occurred, acceptable to the Rating Agencies).
(b) Borrower shall furnish not permit (or consent to) an assignment by any Operating Company of any such Operating Company’s interest(s) under any Operating Lease or an assignment by any Mortgage Borrower of any such Mortgage Borrower’s interest(s) under any Operating Lease Guaranty without, in each case, Lender’s prior written consent (and, if a Securitization shall have occurred, at Lender’s request, without Borrower providing to Lender with true, correct a Rating Agency Confirmation and complete executed copies of all Leases, amendments thereof an Additional True Lease Opinion).
(c) All space Leases and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of space Leases and all proposed Leases so long as executed after the same Original Closing Date entered into by Operating Company shall (ai) provide for rental rates rates, rent credits and free rent periods comparable to existing local market ratesrates for comparable properties, contain (ii) be on commercially reasonable market rate terms terms, (iii) provide that such Lease is subordinate to the Mortgage encumbering the Individual Property in question and do that the lessee will attorn to Mortgage Lender and any purchaser at a foreclosure sale; (iv) not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents; (v) not grant to the tenants thereunder any option or right to purchase the applicable Individual Property (or any portion thereof); and (vi) in the case of Major Leases, have initial terms less than twenty (b20) are for a lease term consecutive years, in each case (unless otherwise consented to by Lender pursuant to clause (d) below).
(i) Any Major Lease entered into by Operating Company with respect to an Individual Property executed after the Original Closing Date (and any renewal of any Major Lease with respect to an Individual Property), and any space Lease or space Lease renewal proposed to be entered into by Operating Company after the Original Closing Date and that does not exceeding one year, including all extensions, meet the criteria set forth in Sections 5.1.20
(a) and subparagraph (c) above, shall be subject to the prior written approval of Lender, which approval shall not be unreasonably withheld, conditioned or delayed. Borrower shall not terminate or accept the surrender of (and shall not permit Operating Company or Mortgage Borrower to terminate or accept the surrender of) a Major Lease (unless by reason of a tenant default) without the consent of Lender.
(ii) Every submission to Lender of any proposed Major Lease (or Major Lease renewal, amendment, modification or termination) for Lender’s approval shall be forwarded to Lender together with a notice from Borrower (in bold typeface) that states “YOUR FAILURE TO RESPOND TO THIS NOTICE AND REQUEST FOR APPROVAL WITHIN TEN (10) BUSINESS DAYS OF YOUR RECEIPT OF THIS NOTICE SHALL CONSTITUTE YOUR DEEMED CONSENT TO THE MATTERS DESCRIBED IN OR THAT ARE THE SUBJECT OF THIS NOTICE”. If Lender responds to Borrower’s request by identifying missing documents or materials that are incomplete or inaccurate (and that are the subject of the request for approval), then Borrower shall re-submit such documents or materials to Lender for its approval together with individual, residential, non-commercial tenants, and a second notice from Borrower that complies with this section.
(diii) have been entered into If Lender fails to approve or disapprove any such proposed request or submission attached to a first notice or request sent by Borrower (or the matters that are the subject of the re-submitted notice or request for approval) within ten (10) Business Days of receipt of same, Borrower shall re-submit such instruments or materials to Lender for Lender’s approval and give Lender a second notice (in its ordinary course bold typeface) that states “SECOND NOTICE — YOUR FAILURE TO RESPOND TO THIS NOTICE AND REQUEST FOR APPROVAL WITHIN FIVE (5) BUSINESS DAYS OF YOUR RECEIPT OF THIS NOTICE SHALL CONSTITUTE YOUR DEEMED CONSENT TO THE MATTERS DESCRIBED IN OR THAT ARE THE SUBJECT OF THIS NOTICE”. If Lender fails to respond to such second notice within five (5) Business Days of business. All Leases executed after the date hereof shall provide that they are subordinate receipt of same, then Lender’s consent to the Security Instrument proposed request or submission that is the subject of such notice shall be deemed granted.
(e) Borrower shall and the Liens created thereby shall cause Mortgage Borrower and that the Tenant thereunder agrees Operating Company to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereofi) or power of sale. Borrower (a) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Individual Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Lease; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. .
(f) Upon request, Borrower shall furnish Lender with executed copies of all new Leases or Lease renewals or amendments.
(g) Notwithstanding anything to the contrary contained herein, Borrower shall have the right not enter into (or permit Operating Company or Mortgage Borrower to require each new Tenant to execute and deliver to Lender enter into) a subordination, non-disturbance lease of possession and attornment agreement in form, content and manner all or substantially all of execution reasonably acceptable to any Individual Property without Lender’s prior consent.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Leasing Matters. (a) Any Lease Leases with respect to either Property executed after the date hereof hereof, for more than 25,000 square feet (and any amendment or termination thereofa "Major Lease") shall require the prior written consent of be approved by Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld. Upon request, each Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s 's rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby Mortgage, as applicable, and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Each Borrower (a) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (b) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involvedits Property, provided as applicable, involved except that in no event shall early termination by such Borrower terminate or accept the acceptance of early surrender by a tenant of any Lease (or early surrender of any Lease portion of the Property covered by a Tenant any Lease) shall be permitted unless by reason of a Tenant bona fide tenant default and then only in a commercially reasonable manner to preserve and protect the such Property; provided, however, that no such early termination or surrender of any Major Lease (or of any portion of the Property covered by any Major Lease) will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (c) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (d) shall not execute any other assignment of the lessor’s 's interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (e) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (f) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender Notwithstanding anything to the contrary contained herein, each Borrower shall not enter into a lease of all or substantially all of its Property without Lender's prior consent.
(b) Notwithstanding anything to the contrary contained in this Section 5.1.20:
(i) whenever Lender's approval or consent is required pursuant to the provisions of this Section 5.1.20, Borrowers shall have the right to require each new Tenant to execute and deliver submit a term sheet of such transaction to Lender for Lender's approval, such approval not to be unreasonably withheld or delayed. Any such term sheet submitted to Lender shall set forth all material terms of the proposed transaction, including identity of tenant, square footage, term, rent, rent credits, abatements, work allowances and tenant improvements to be constructed by Borrowers. Lender shall use good faith efforts to respond within five (5) Business Days after Lender's receipt of Borrowers' written request for approval or consent of such term sheet. If Lender fails to respond to such request within five (5) Business Days, and Borrowers send a subordinationsecond request containing a legend clearly marked in not less than fourteen (14) point bold face type, non-disturbance underlined, in all capital letters "REQUEST DEEMED APPROVED IF NO RESPONSE WITHIN TWO BUSINESS DAYS", Lender shall be deemed to have approved or consented to such term sheet if Lender fails to respond to such second written request before the expiration of possession such two (2) Business Day period;
(ii) whenever Lender's approval or consent is required pursuant to the provisions of this Section 5.1.20 for any matter with respect to which Lender has not previously approved a term sheet pursuant to Section 5.1.20(b)(i) above, Lender shall use good faith efforts to respond within five (5) Business Days after Lender's receipt of Borrowers' written request for such approval or consent. If Lender fails to respond to such request within five (5) Business Days, and attornment agreement Borrowers send a second request containing a legend clearly marked in formnot less than fourteen (14) point bold face type, content underlined, in all capital letters "REQUEST DEEMED APPROVED IF NO RESPONSE WITHIN TWO BUSINESS DAYS", Lender shall be deemed to have approved or consented to such matter if Lender fails to respond to such second written request before the expiration of such two (2) Business Day period;
(iii) whenever Lender's approval or consent is required pursuant to the provisions of this Section 5.1.20 for any matter with respect to which Lender has previously approved or is deemed to have approved a term sheet pursuant to Section 5.1.20(b)(i) above, Lender shall use good faith efforts to respond within five (5) Business Days after Lender's receipt of Borrower's written request for such approval or consent. If Lender fails to respond to such request within five (5) Business Days, and manner Borrower sends a second request containing a legend clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters "REQUEST DEEMED APPROVED IF NO RESPONSE WITHIN TWO BUSINESS DAYS", Lender shall be deemed to have approved or consented to such matter if Lender fails to respond to such second written request before the expiration of execution reasonably acceptable such two (2) Business Day period, provided that there have been no material deviations from the term sheet and that the aggregate economics of the transaction are no less favorable to LenderBorrower than as set forth in the term sheet; and
(iv) in the event that Lender shall have approved (or be deemed to have approved) a term sheet submitted by Borrowers with respect to a certain Lease, Lender shall not withhold its approval or consent with respect to such Lease on the basis of any provisions of such Lease dealing with the items contained in the approved term sheet.
(c) Borrowers hereby grant Lender a security interest in all of Borrowers' right, title and interest in any security deposits under Leases held by Borrowers including any letters of credit, and Borrowers agree upon an Event of Default to transfer all letters of credit to Lender and to arrange for Lender to have the independent right and authority on behalf of landlord to draw on such letters of credit upon the terms and conditions thereof.
Appears in 1 contract
Leasing Matters. (a) Any Lease executed Leases with respect to the Property written after the date hereof (and any amendment or termination thereof) shall require be subject to the prior written consent approval of Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld, conditioned or delayed. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby Mortgage and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided involved except that in no event shall termination by Borrower terminate or accept the acceptance of surrender of any Lease by a Tenant of any Leases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such amendment or modification or termination or surrender of any the Mercedes-Benz Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender Notwithstanding anything to the contrary contained herein, Borrower shall have not enter into a lease of all or substantially all of the right Property without Lender’s prior written consent. Notwithstanding anything to require each the contrary contained herein, all new Tenant Leases and all amendments, modifications, extensions, and renewals of existing Leases with Tenants that are Affiliates of Borrower shall be subject to execute and deliver to Lender a subordination, non-disturbance the prior written consent of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender.
(b) If Mercedes-Benz shall give notice to Borrower that the Property does not contain the number of parking spaces required by the Mercedes-Benz Lease, then Borrower shall, within sixty (60) days after receipt of such notice, reconfigure and/or re-stripe the parking areas at the Property or take any other action necessary to provide for the number of parking spaces required by the Mercedes-Benz Lease.
Appears in 1 contract
Leasing Matters. Any Lease executed Major Leases with respect to the Property written after the date hereof (and any amendment or termination thereof) shall require be subject to the prior written consent approval of Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld, conditioned or delayed. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases; provided, amendments thereof that so long as no Event of Default has occurred and any related agreementsis continuing, Borrower shall not be required to deliver copies of all Leases more frequently than two (2) times per calendar per year. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby Mortgage and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower and Operating Lessee (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided involved except that in no event shall termination by Borrower terminate or accept the Operating Lessee or acceptance of surrender of any Lease by a Tenant of any Leases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Major Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leaseand rent for providing rooms, banquet and meeting space and services in the ordinary course of business); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Notwithstanding anything to the contrary contained herein, neither Borrower nor Operating Lessee shall enter into a lease of all or substantially all of the Property without Lender’s prior written consent. Lender shall have grant or deny with a reasonable explanation any consent required hereunder within fourteen (14) days after the right receipt of the applicable request and all documents in connection therewith. In the event that Lender fails to require each new Tenant respond within said fourteen (14) day period, such failure shall be deemed to execute be the consent and deliver approval of Lender if (A) Borrower has delivered to Lender the applicable documents, with the notation “IMMEDIATE RESPONSE REQUIRED, FAILURE TO RESPOND TO THIS APPROVAL REQUEST WITHIN FOURTEEN (14) DAYS FROM RECEIPT SHALL BE DEEMED TO BE LENDER’S APPROVAL” prominently displayed in bold, all caps and fourteen (14) point or larger font in the transmittal letter requesting approval and (B) Lender does not approve or reject (with a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lenderreasonable explanation) the applicable request within fourteen (14) days from the date Lender receives such request as evidenced by a certified mail return receipt or confirmation by a reputable national overnight delivery service that the same has been delivered.
Appears in 1 contract
Leasing Matters. Any Borrower may enter into a proposed Lease executed after (including the date hereof renewal or extension of an existing Lease (and any amendment or termination thereofa “Renewal Lease”)) shall require without the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all provided such proposed Leases so long as the same Lease or Renewal Lease (ai) provide provides for rental rates and terms comparable to existing local market ratesrates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, contain reasonable market rate terms and do not contain any terms which would materially adversely affect Lender’s rights under in the Loan Documentscase of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (bii) are for is an arm’s-length transaction with a lease term not exceeding one yearbona fide, including all extensionsindependent third party tenant, (ciii) are with individualdoes not have a materially adverse effect on the value of the Property taken as a whole, residential, non-commercial tenants, (iv) is subject and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument Mortgage and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender Lender, (v) does not contain any option, offer, right of first refusal, or other similar right to acquire all or any other purchaser portion of the Property Property, (vi) has a base term of less than fifteen (15) years including options to renew, (vii) has no non-market rent credits, free rents or concessions granted thereunder; provided that in no event shall rent credits, free rents or concessions exceed a period equal to three (3) months, and (viii) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this subsection shall be subject to the prior approval of Lender and its counsel, at a sale by foreclosure (or deed in lieu thereof) or power of saleBorrower’s expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this subsection together with Borrower’s certification that it has satisfied all of the conditions of this Section. In connection with all requests for approvals or consents by Lender pursuant to this Section 5.13(a), Lender’s approval shall be deemed granted if not disapproved in writing within fifteen (15) Business Days of Lender’s receipt of written request for such approval in an envelope marked “LENDER’S RESPONSE IS REQUIRED WITHIN FIFTEEN (15) BUSINESS DAYS OF RECEIPT OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF THE LOAN AGREEMENT” together with all other information and documentation related thereto requested by Lender.
(a) Borrower (i) shall observe and perform all the obligations imposed upon the lessor landlord under the Leases in a commercially reasonable mannerand shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (bii) shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leaseperformed; (civ) shall not collect any of the Rents more than one (1) month in advance (other than except security deposits required pursuant to such Leaseshall not be deemed Rents collected in advance); (dv) shall not execute any other assignment of the lessorlandlord’s interest in any of the Leases or the Rents (except to Lender pursuant to the Loan Documents)Rents; (evi) shall not alterconsent to any assignment of any Leases not in accordance with their terms, without the prior written consent of Lender; and (vii) shall not consent to any subletting under any Major Leases not in accordance with their terms, without the prior written consent of Lender.
(b) Borrower may, without the consent of Lender, amend, modify or change waive the terms provisions of any Lease or terminate, reduce Rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the Leases; affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and (f) provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Agreement and any subordination agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall execute and deliver at not be considered an action which has a materially adverse effect on the request value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this subsection shall be subject to the prior approval of Lender all such further assurancesand its counsel, confirmations and assignments in connection with the Leases as Lender at Borrower’s expense. Borrower shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this subsection together with Borrower’s certification that it has satisfied all of the conditions of this subsection.
(c) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a subordinationsurrender of space under, non-disturbance or shorten the term of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lenderany Major Lease.
Appears in 1 contract
Leasing Matters. Any Lease executed (a) Prior to execution of any Leases of space in the Improvements after the date hereof hereof, Borrower shall submit to Lender, for Lender’s prior approval, which approval shall not be unreasonably withheld, a copy of the form Lease each Property Guarantor plans to use in leasing space in the Improvements or at any Individual Property. All such Leases of space in the Improvements or at any Individual Property shall be on terms consistent with the terms for similar leases in the market area of the Property, shall provide for market rents then prevailing in the market area of the applicable Individual Property or Mezzanine Asset and with respect to a substantial portion of such Leases, shall be for a term of not less than six (6) months or greater than one (1) year. Borrower shall also submit to Lender for Lender’s approval, which approval shall not be unreasonably withheld, prior to the execution thereof, any proposed Lease of the Improvements or any portion thereof that differs materially and adversely from the aforementioned form Lease. Borrower shall not permit and Property Guarantor nor any amendment Mezzanine Asset Owner to execute any Lease for all or termination thereofa substantial portion of any Individual Property or Mezzanine Asset, except for an actual occupancy by the tenant, lessee or licensee thereunder, and 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 any Individual Property or Mezzanine Asset, 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 1 of each year, a current Rent Roll, certified by the applicable Property Guarantor or Mezzanine Asset Owner as being true and correct, containing the names of all Tenants with respect to each Individual Property and Mezzanine Asset, respectively, the terms of their respective Leases, the spaces occupied and the rentals or fees payable thereunder and the amount of each Tenant’s security deposit. Upon the request of Lender, Borrower shall require cause each Property Guarantor and Mezzanine Asset Owner to deliver to Lender a copy of each such Lease. Borrower shall not do or suffer to be done, nor permit any Property Guarantor or Mezzanine Asset owner to do or suffer to be done, any act, or omit to take any action, that might result in a default by the landlord, lessor or licensor under any such Lease or allow the tenant thereunder to withhold payment of rent or cancel or terminate same and shall not further assign any such Lease or any such Rents. Borrower shall cause each Property Guarantor and Mezzanine Asset Owner, at no cost or expense to Lender, shall enforce, short of termination, the performance and observance of each and every material condition and covenant of each of the parties under such Leases and no Property Guarantor nor Mezzanine Asset Owner shall anticipate, discount, release, waive, compromise or otherwise discharge any rent payable under any of the 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 applicable Individual Property or Mezzanine Asset is located. Notwithstanding the foregoing, at any time and from time to time, Lender shall be entitled to, and Borrower shall cause each Property Guarantor and Mezzanine Asset Owner to grant the Lender the right to, undertake any and all action as may be required (in the sole discretion of Lender) to cure any default, or event which with the passage of time following any notice and cure period shall constitute a default by Property Guarantor or Mezzanine Asset Owner, as the case may be, under such Leases. No Property Guarantor or Mezzanine Asset Owner shall, without the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies modify any of all the Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) provide for rental rates comparable to existing local market rates, contain reasonable market rate terms and do not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (a) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (b) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason Leases, waive or release any other party from the performance or observance of a Tenant default and then only any obligation or condition under such Leases except in the normal course of business in a commercially reasonable manner to preserve which is consistent with sound and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided customary leasing and management practices for similar properties in the Lease; (c) shall not collect any of community in which the Rents more than one (1) month in advance (other than security deposits required pursuant to such Lease); (d) shall not execute any other assignment of the lessor’s interest in the Leases applicable Individual Property or the Rents (except to Lender pursuant to the Loan Documents); (e) shall not alter, modify or change the terms of the Leases; and (f) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to LenderMezzanine Asset is located.
Appears in 1 contract
Leasing Matters. Any Lease executed after the date hereof (and any amendment or termination thereof) shall require the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) provide for rental rates comparable Each of Borrower and Maryland Owner may enter into Leases or modify existing Leases demising a portion of any Individual Property less than or equal to existing local market rates, contain the Relevant Leasing Threshold without Lender’s prior written approval provided such Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All further provided that such Leases executed after the date hereof shall provide that (x) they are subordinate to the Security Instrument and Mortgage encumbering the Liens created thereby and that applicable Individual Property, (y) the Tenant tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale, and (z) the tenant shall deliver all Rents payable thereunder directly to the Lockbox Account (or, such Lease is accompanied by a Tenant Direction Letter countersigned by the tenant and the applicable Individual Borrower or Maryland Owner, as applicable, directing such tenant to deliver all Rents payable thereunder directly to the Lockbox Account).
(b) Borrower and Maryland Owner may not enter into a Lease or modify an existing Lease covering all or substantially all of any Individual Property without the prior written approval of Lender, which approval may be given or withheld in the sole discretion of Lender.
(c) Borrower and Maryland Owner may not enter into Leases or modify existing Leases demising a portion of any Individual Property greater than the Relevant Leasing Threshold without the prior written approval of Lender, provided, however, Lender shall not withhold such approval if Borrower or Maryland Owner, as applicable, delivers to Lender, together with its request for approval, an abstract or summary of the proposed Lease terms and an Officer’s Certificate certifying that the Leasing Conditions have been satisfied.
(d) To the extent Lender’s written approval is required pursuant to this Section 5.1.20 to any Lease or modification (excluding a Lease for all or substantially all of an Individual Property, the approval of which is required pursuant to Section 5.1.20(b) hereof), Borrower’s or Maryland Owner’s written request therefor shall be delivered together with such materials reasonably requested by Lender in order to evaluate such request (it being acknowledged and agreed that no request for consent shall be effective unless and until such materials have been delivered to Lender) and shall conspicuously state, in large bold type, that “PURSUANT TO SECTION 5.1.20 OF THE LOAN AGREEMENT, THIS IS A REQUEST FOR LENDER’S CONSENT. LENDER’S RESPONSE IS REQUESTED WITHIN TEN (10) BUSINESS DAYS. LENDER’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD WILL ENABLE BORROWER TO DELIVER A SECOND NOTICE REQUESTING LENDER’S CONSENT”. In the event Lender fails to approve or disapprove to such request within ten (10) Business Days’ of the effective date of such initial request, Borrower or Maryland Owner may deliver to Lender a second written request for approval, which second written request for approval shall conspicuously state, in large bold type, that “THIS IS A REQUEST FOR LENDER’S CONSENT. LENDER’S CONSENT IS REQUESTED WITHIN FIVE (a5) BUSINESS DAYS. THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN FIVE (5) BUSINESS DAYS’ OF LENDER’S RECEIPT OF THIS WRITTEN NOTICE”. In the event that Lender fails to approve or disapprove the second written request within such five (5) Business Day period, then Lender’s consent shall be deemed to have been granted. Notwithstanding the foregoing to the contrary, Lender’s failure to approve or disapprove a written request from Borrower shall not constitute Lender’s deemed consent of such Lease unless such initial request for approval was delivered to Lender on or after January 15, 2010.
(e) Each of Borrower and Maryland Owner shall furnish Lender with executed copies of all Leases.
(f) Each of Borrower and Maryland Owner (i) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Individual Property involvedinvolved except that, provided that in subject to the terms of this Section 5.1.20, no event shall termination by Borrower terminate or accept the Maryland Owner or acceptance of surrender by a tenant of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will shall be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for which consent may be withheld in the Leasesole discretion of Lender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have Notwithstanding the foregoing, Borrower and Maryland Owner may, without the prior written consent of Lender, terminate (or accept a surrender of) any Lease which demises less than the Relevant Leasing Threshold under any of the following circumstances: (i) the tenant under said Lease is in default beyond any applicable grace and cure period, and Borrower or Maryland Owner, as applicable, has the right to require each new Tenant terminate such Lease; (ii) such termination is permitted by the terms of the Lease in question and Borrower or Maryland Owner, as applicable, has secured an obligation from a third party to execute lease the space under the Lease to be terminated at a rental equal to or higher than the rental due under the Lease to be terminated; and deliver (iii) if the tenant under the Lease to Lender be terminated has executed a subordinationright under said Lease to terminate its Lease upon payment of a termination fee to Borrower or Maryland Owner, non-disturbance of possession as applicable, and attornment agreement has in formfact terminated its Lease and paid said fee, content and manner of execution reasonably acceptable to LenderBorrower or Maryland Owner, as applicable, may accept said termination.
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Leasing Matters. Any Lease executed Leases with respect to the Property written after the date hereof (and any amendment or termination thereof) hereof, for more than 50,000 square feet shall require be subject to the prior written consent approval of Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld, conditioned or delayed. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided involved except that in no event shall termination by Borrower terminate or accept the acceptance of surrender of any Lease by a Tenant of any Leases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease covering more than 50,000 square feet will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender Notwithstanding anything to the contrary contained herein, Borrower shall have not enter into a lease of all or substantially all of the right Property without Lender’s prior written consent. Notwithstanding anything to require each the contrary contained herein, all new Tenant Leases and all amendments, modifications, extensions, and renewals of existing Leases with Tenants that are Affiliates of Borrower shall be subject to execute and deliver to Lender a subordination, non-disturbance the prior written consent of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender.
Appears in 1 contract
Samples: Loan Agreement (Carter Validus Mission Critical REIT II, Inc.)
Leasing Matters. Any Lease executed after the date hereof (a) All Leases and any amendment or termination thereof) shall require the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) provide for rental rates comparable to existing local market rates, contain reasonable market rate terms and do not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall (i) be negotiated at arm’s length and shall be on commercially reasonable terms, and (ii) provide that they are such Lease is subordinate to the Security Instrument and the Liens created thereby other Loan Documents and that the Tenant thereunder agrees lessee agrees, subject to customary and reasonable provisions for non-disturbance to the extent the lessee is not in default thereunder, to attorn to Lender and any purchaser at a foreclosure sale. Any Major Lease and any renewal, material waiver, material amendment, material modification or termination thereof executed after the date hereof shall be subject to Lender’s prior approval, which approval shall not be unreasonably withheld or delayed. If an Event of Default shall exist, all Leases and each renewal, waiver, amendment, modification or termination thereof executed during the existence of such Event of Default shall be subject to Lender’s prior approval in its sole discretion. Lender’s approval shall not be required for any Lease, or any other purchaser renewal, waiver, amendment, modification or termination except as expressly provided in this Section 5.1.20. Upon request of Borrower and at Borrower’s sole cost and expense, so long as no Event of Default shall exist, from time to time Lender shall promptly execute and deliver a subordination, nondisturbance and attornment agreement in connection with any Major Lease, such agreement to be in Lender’s then usual and customary form and otherwise reasonably acceptable to Lender in all respects.
(b) Any request for the approval by Lender of any Lease or any renewal, waiver, amendment, modification or termination thereof shall be delivered to Lender in writing and shall include a copy of the Property at proposed Lease or renewal, waiver, amendment, modification or termination and Lender shall so advise whether such approval is granted or denied within ten (10) Business Days after receipt of such written request. Provided that the request is accompanied by a sale notice, which provides in upper case bold-faced type: “THIS IS A REQUEST FOR AN APPROVAL WITH RESPECT TO A LEASE. IF LENDER FAILS TO RESPOND WITHIN 10 BUSINESS DAYS OF THE EFFECTIVENESS OF THIS NOTICE, THE REQUESTED ACTION WITH RESPECT TO THE LEASE WILL BE DEEMED APPROVED”, if Lender shall not so advise of its determination within such ten (10) Business Day period (notice by foreclosure facsimile on the same day being acceptable for this purpose), such proposed Lease or renewal, waiver, amendment, modification or termination thereof shall be deemed approved by Lender. If Lender shall deny any such request for approval, Lender shall specify the reasons for its refusal to grant approval. For the purposes of this Section 5.1.20, subject to Lender’s receipt, review and reasonable approval of definitive documentation with respect to the same pursuant to this Agreement, Lender hereby acknowledges and approves the proposed lease of space to Opium Group to be used as a nightclub upon substantially the same terms as set forth in the term sheet delivered to Lender on or prior to the date hereof.
(or deed in lieu thereofc) or power of sale. Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Propertymanner; provided, however, that no such termination Borrower shall not terminate or accept a surrender of any a Major Lease will be permitted without the Lender’s prior written consent of Lender or unless such termination or surrender is specifically provided for approval, except in the Leaseevent of a default by the tenant thereunder and with prior written notice to Lender; (ciii) shall not collect any of the Rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); and (ev) shall not alterhold all security deposits under all Leases in accordance with applicable Legal Requirements. Upon request, modify or change Borrower shall furnish Lender with executed copies of all Leases. Notwithstanding the terms foregoing provisions of the Leases; and (f) shall execute and deliver at the request of Lender all such further assurancesthis Section 5.1.20(c), confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender Borrower shall have the right to require each new Tenant terminate any Lease by the exercise of any specific right set forth in such Lease to execute and terminate the same due to the applicable tenant’s failure to achieve any required sales thresholds set forth therein; provided that Borrower shall promptly deliver to Lender a subordination, non-disturbance lender written notice of possession the exercise of any such right and attornment agreement in form, content and manner the termination of execution reasonably acceptable to Lenderany such Lease.
Appears in 1 contract
Samples: Loan Agreement (Bh Re LLC)
Leasing Matters. Any Lease Leases with respect to the Property executed after the date hereof (and any amendment or termination thereof) hereof, for more than 5,000 square feet shall require the prior written consent of be approved by Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld, delayed or conditioned. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby Mortgage and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower shall (a) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (b) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided involved except that in no event shall termination by Borrower terminate or accept the acceptance of surrender by a tenant of any Lease by a Tenant Leases of more than 5,000 square feet shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease covering more than 5,000 square feet will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (c) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (d) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (e) shall not alter, modify or change the terms of any Lease in excess of 5,000 square feet in a manner inconsistent with the Leasesprovisions of the Loan Documents; and (f) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender Notwithstanding anything to the contrary contained herein, Borrower shall have not enter into a lease of all or substantially all of the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Property without Lender’s prior consent.
Appears in 1 contract
Leasing Matters. Any Lease executed Leases with respect to an Individual Property written after the date hereof (and any amendment or termination thereof) prior to the Anticipated Repayment Date, for more than 15,000 square feet shall require the prior written consent of be approved by Lender, which consent approval shall not be unreasonably withheld, conditioned or delayed, provided, however, that if Lender has failed to approve or disapprove any such Lease within seven (7) Business Days of receipt thereof together with any supplementary materials reasonably necessary to make such determinations, Borrower shall provide notice of such failure to Lender, and in the event that Lender does not approve or disapprove such Lease within five (5) Business Days of Lender's receipt of such notice, the Lease shall be deemed approved. After the Anticipated Repayment Date, all Leases shall be approved by Lender, which approval may be withheld in Lender’s 's sole and absolute discretion. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitationin any way limiting Lender's foregoing rights, and as applicable, Lender shall be deemed to have approved (i) all renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain (ii) all renewals of Leases and all proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s 's rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (diii) have been entered into by Borrower in its ordinary course all renewals of business. All Leases and all proposed Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and Mortgage encumbering the Liens created thereby applicable Individual Property and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure Lender. Borrower
(or deed in lieu thereof) or power of sale. Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leasemanner; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s 's interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender.
Appears in 1 contract
Leasing Matters. Any Lease executed Leases with respect to any Individual Property written after the date hereof hereof, for more than fifty percent (and any amendment or termination thereof50%) of the leasable space at such Individual Property shall require be subject to the prior written consent approval of Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld, conditioned or delayed. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property (or any portion thereof) involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Lease; (ciii) shall not collect any more than five percent (5%) of the Rents gross annual rents for all Property in the aggregate more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the reasonable request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender Notwithstanding anything to the contrary contained herein, Borrower shall have not enter into a lease of all or substantially all of any Individual Property without Lender’s prior written consent. Notwithstanding anything to the right contrary contained herein, all new Leases and all amendments, modifications, extensions, and renewals of existing Leases with Tenants that are Affiliates of Borrower shall be subject to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance the prior written consent of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender.
Appears in 1 contract
Leasing Matters. Any Lease (a) Borrower shall obtain the prior approval of Lender, which approval shall not be unreasonably withheld, conditioned or delayed for any (i) Material Leases with respect to any of the Properties executed by Borrower after the date hereof (other than extensions or renewals of existing Leases pursuant to options provided therein), (ii) Lease for space that was vacated by Wachovia pursuant to the Branch Agreement and the Branch Agreement Side Letter and (iii) material amendments or modifications of any Material Leases. In the event Borrower requests approval of a Material Lease, or a material amendment or termination thereof) shall require the prior written consent modification of Lendera Material Lease, which consent shall be in requiring Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitationapproval hereunder, and as applicableBorrower’s correspondence from the Borrower to Lender requesting such approval contains a bold-faced conspicuous legend at the top of the first page thereof stating that “IF YOU FAIL TO RESPOND TO OR TO EXPRESSLY DENY THIS REQUEST FOR APPROVAL IN WRITING WITHIN TEN (10) DAYS, YOUR APPROVAL SHALL BE DEEMED GIVEN,” and the envelope containing such request is marked “PRIORITY,” then if Lender shall fail to respond to or expressly deny such request for approval in writing within ten (10) days after receipt of Borrower’s written request therefor, then Lender shall be deemed to have approved such Material Lease, or material amendment or modification of such Material Lease, as the case may be. Borrower shall provide Lender with such information and documentation as may reasonably requested by Lender, including, without limitation, lease comparables and other market information reasonably requested by Lender;
(b) Borrower shall furnish or cause to be furnished to Lender with executed copies of all Leases promptly following execution of such Leases;
(c) All renewals of Leases (other than extensions or renewals of existing Leases pursuant to options provided therein) and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain rates for comparable properties;
(d) All proposed Leases including amendments of existing Leases shall be on commercially reasonable market rate terms and do (other than extensions or renewals of existing Leases pursuant to options provided therein) shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, reasonably be likely to have a Material Adverse Effect;
(be) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof (other than extensions or renewals of existing Leases pursuant to options provided therein) shall provide that they are subordinate to the Security Instrument and encumbering the Liens created thereby applicable Property and that the Tenant tenant thereunder agrees agrees, subject to appropriate provisions for non-disturbance to the extent the tenant is not in default thereunder, to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Lender, at the request of Borrower, shall enter into a subordination, attornment and nondisturbance agreement in form and substance reasonably satisfactory to Lender (a “Nondisturbance Agreement”) with any existing tenant or any tenant entering into a Lease after the date hereof (other than a Lease to an Affiliate of Borrower). All actual and reasonable, out-of-pocket costs and expenses of Lender in connection with the negotiation, preparation, execution and delivery of any Nondisturbance Agreement including, without limitation, reasonable attorneys’ fees and disbursements, shall be paid by Borrower;
(f) Borrower (a) shall observe and perform the all obligations imposed upon the lessor under the Leases in a commercially reasonable manner; the manner required by the applicable Leases;
(bg) Borrower shall enforce the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to materially impair the value of the any Property involvedor otherwise be reasonably likely to have a Material Adverse Effect;
(h) Borrower shall, provided that in no event shall Borrower with regard to any Lease, not terminate any such Lease or accept the a surrender of any such Lease by a Tenant unless except (1) by reason of a Tenant tenant default and then only in a or (2) if deemed commercially reasonable manner to preserve by Borrower and protect the Property; provided, however, that no provided such termination will not result in the commencement of a Low DSCR Period; provided that Borrower shall not terminate any Wachovia Lease or accept a surrender of any Wachovia Lease will be permitted without the except with prior written consent of Lender or unless such termination or surrender is specifically provided for in the Lease; Lender;
(ci) Borrower shall not collect any of the Rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); ;
(dj) Borrower shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); ;
(ek) Borrower shall not alter, modify or change the terms of the Leases; and promptly deliver to Lender any notice received by Borrower from any tenant under a Material Lease;
(fl) Borrower shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require;
(m) Borrower shall keep all security deposits under Leases (collectively, “Security Deposits”) in an Eligible Account under Borrower’s control at a FDIC-insured bank or financial institution reasonably acceptable to Lender (such account, the “Security Deposit Account”). All Security Deposits shall be held by Borrower in accordance with the terms of the applicable Lease. Security Deposits shall be maintained as Cash unless Borrower, at Borrower’s election, elects to invest the funds in the Security Deposit Account in Permitted Investments. The funds in the Security Deposit Account shall not be commingled with any other funds of Borrower. Borrower shall, upon Lender’s request during the continuance of an Event of Default, unless prohibited by applicable Legal Requirements or the terms of the applicable Lease, deliver to Lender the Security Deposits (and any interest theretofore earned thereon) to be held by Lender in an account under the Cash Management Agreement (the “Security Deposit Reserve Account”). Security Deposits held in the Security Deposit Reserve Account will be released by Lender upon notice from Borrower together with such evidence as Lender may reasonably request that such Security Deposit is required to be returned to the applicable tenant pursuant to the terms of a Lease or pursuant to applicable law. In the event that Borrower is entitled to retain the amount of the Security Deposit pursuant to an exercise of the rights and remedies of Borrower under the applicable Lease or is otherwise entitled by applicable law or agreement with the applicable tenant to retain the applicable Security Deposit, Borrower shall deliver such Security Deposit to Lender to be, at Lender’s option, deposited into the Cash Collateral Account or retained in a Reserve Fund to pay the anticipated expenses (including Debt Service) in connection with operation of the Properties as determined by Lender. Any letter of credit or other instrument that Borrower receives in lieu of a Cash security deposit under any Lease entered into after the date hereof shall (i) be maintained in full force and effect in the full amount unless replaced by a Cash deposit as hereinabove described or unless Borrower is permitted to draw thereon pursuant to the Lease and in fact does draw thereon (in which event, the proceeds of such draw shall be applied as would a Cash security deposit under the circumstances) and (ii) if permitted pursuant to any Legal Requirements and such letter of credit, name Lender as payee or mortgagee thereunder (or at Lender’s option, be fully assignable to Borrower’s successors and assigns);
(n) If requested by Borrower, Lender will grant approval of proposed Leases at any stage of the leasing process, from initial “term sheets” through negotiated lease drafts including any work or alterations to be performed pursuant thereto, provided that information which reasonably identifies the proposed tenant is included in the request to Lender and upon such approval, no further approval by Lender shall have be required, provided that the final negotiated Lease does not materially differ from the proposed Lease (including initial “term sheet”) approved by Lender and, provided further that, Lender shall retain the right to require each new Tenant disapprove any such Lease as to execute which its approval is required if subsequent to any preliminary approval material changes are made to the terms previously approved by Lender, or additional material terms are added that had not previously been considered and deliver approved by Lender in connection with such Lease; and
(o) Without the prior written consent of Lender, Borrower shall not consent to Lender the assignment of, or sublease of any space demised under and subject to, any Wachovia Lease if as a subordinationresult of such assignment or sublease, non-disturbance Wachovia would be released from any of possession its obligations or liabilities under such Wachovia Lease. Notwithstanding the foregoing, Borrower may, pursuant to the terms and attornment agreement conditions of the Branch Agreement Side Letter, consent to the assumption of any Wachovia Lease and the release of Wachovia from all obligations and liabilities under such Wachovia Lease; provided, that at the time such consent is given, Borrower receives the payment required to be made under the Branch Agreement in form, content and manner of execution reasonably acceptable to Lenderconsideration for such consent.
Appears in 1 contract
Leasing Matters. Any (a) Except as otherwise consented to by Lender in writing, all Leases shall be written on the standard form of lease which shall have been (i) with respect to pad Leases, delivered to Lender in connection with the closing of the Loan and (ii) with respect to Operating Leases or Ground Leases, if any, approved by Lender, provided however that Lender acknowledges that to the extent any portion of the Property consists of a recreational vehicle resort, Borrower shall not be required to enter into written Leases with any occupant or tenant of such portion of the Property and such tenants and/or occupants of such recreational vehicle resorts shall be deemed month to month tenants or licensees of Borrower. So long as either Original Borrower or a Borrower Principal Affiliate is Borrower under the Loan, Borrower may modify its standard form of pad lease in accordance with sound business practices and Legal Requirements, provided that the form of such Lease executed after contains covenants and conditions that are consistent with those contained in comparable leases in the date hereof applicable local market. Notwithstanding the foregoing, in the event that the majority of owners, managers and/or operators of comparable recreational vehicle resorts in the applicable local market enter into written Leases with the occupants of
(and any amendment or termination thereof1) shall require furnish Lender with executed copies of all Major Leases and (2) shall make available to Lender at Borrower's offices (upon reasonable notice to Borrower), executed copies of all other Leases. No material changes may be made to the Lender-approved standard form of Operating Lease and Ground Lease, if applicable, without the prior written consent of Lender. In addition, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) leases shall provide for rental rates and terms comparable to existing local market ratesrates and terms and, contain reasonable market rate terms except with respect to one pad at the Property used for on-site community managers (or other employees of Manager), shall be arm's-length transactions with bona fide, independent third party tenants. All proposed Major Leases and do not contain any terms which would materially adversely affect Lender’s rights under renewals of existing Major Leases shall be subject to the Loan Documentsprior approval of Lender and its counsel, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of businessat Borrower's expense. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby Mortgage and that the Tenant thereunder tenant agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure Lender.
(or deed in lieu thereofb) or power of sale. Borrower (ai) shall observe and perform all the obligations imposed upon the lessor landlord under the Leases in a commercially reasonable mannerand shall not do or permit to be done anything to impair the value of the Leases as security for the Debt; (bii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant thereunder to be observed or performed performed, short of termination thereof; provided however, with respect to pad leases, a pad Lease may be terminated in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect by the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leasetenant thereunder; (ciii) with respect to any Leases (other than Leases relating to mobile home park pads or recreational vehicle resort pads), shall not collect any of the Rents more than one (1) month in advance advance; provided, however, that in no event shall Borrower collect any Rents under Leases (or any other applicable occupancy agreements (written or otherwise)) relating to mobile home park pads or recreational vehicle resort pads more than security deposits required pursuant to such Lease)one (1) year in advance; (div) shall not execute any other assignment of the lessor’s landlord's interest in the Leases or the Rents Rents; and (v) shall not consent to any assignment of or subletting under the Major Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Notwithstanding the provisions of subsection (a) above, renewals of existing commercial Leases and proposed Leases for commercial space shall not be subject to the prior approval of Lender, provided all of the following conditions are satisfied: (i) the rental income pursuant to the renewal or proposed Lease is not more than five (5%) percent of the total rental income for the Property, (ii) the renewal or proposed Lease has a base term of less than six (6) years including options to renew, (iii) no rent, credits, free rents or concessions have been granted under the renewal or proposed Lease (except to the extent consistent with current market conditions), (iv) the renewal or proposed Lease is subject and subordinate to the Mortgage and the tenant thereunder shall have agreed to attorn to Lender, (v) the renewal or proposed Lease is on the standard form of lease approved by Lender, (vi) the renewal or proposed Lease does not contain any option, offer, right of first refusal, or other similar right to acquire all or any portion of the Property, and (vii) the renewal or proposed Lease provides for rental rates and terms comparable to existing market rates and terms and is an arm's-length transaction with a bona fide, independent third party tenant. Borrower shall deliver to Lender copies of all Leases which are entered into pursuant to the Loan Documents); (e) shall not alter, modify or change the terms preceding sentence together with Borrower's certification that it has satisfied all of the Leases; and conditions of the preceding sentence within thirty (f30) shall execute and deliver at days after the request execution of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to LenderLease.
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Leasing Matters. Any Lease executed after Borrower and Baltimore Owner shall have the date hereof (and any amendment or termination thereof) shall require right, without the prior written consent of Lender, which consent shall be in Lender’s sole to enter into any Lease (other than a Material Lease). Upon request, Borrower and absolute discretion. Borrower Baltimore Owner shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender All proposed Material Leases shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) provide for rental rates comparable to existing local market rates, contain on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and Mortgage encumbering the Liens created thereby applicable Individual Property and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower and Baltimore Owner (a) shall observe and perform the obligations imposed upon the lessor under the Material Leases in a commercially reasonable manner; (b) shall have the right, without the consent of Lender, to amend, modify, or waive the provisions of any Lease (other than a Material Lease except to the extent required pursuant to the terms of an existing Material Lease and provided Lender receives notice thereof) or terminate, reduce rents under, accept the surrender of space under, or shorten the term of, any Lease (other than a Material Lease) or of any guaranty, letter of credit or other credit support with respect thereto, so long as such action does not have a material adverse affect on the value of the applicable Individual Property taken as a whole, provided, however, that a termination of a Lease (other than a Material Lease) with a tenant who is in default beyond applicable notice and cure periods shall not be considered an action which has a material adverse affect on the value of the Individual Property taken as a whole; (c) shall enforce the terms, covenants and conditions contained in the Material Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Individual Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Lease; (cd) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (de) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ef) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fg) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall not unreasonably withhold, condition or delay its consent with respect to the entering into, renewal, extension, amendment, modification, waiver of provisions of, termination, reduction of rents under, acceptance of a surrender of space or the shortening of the term of any Material Lease. Notwithstanding anything to the contrary contained herein, neither Borrower nor Baltimore Owner shall enter into a lease of all or substantially all of any Individual Property without Lender’s prior consent, which consent may be withheld or conditioned in Lender’s sole discretion. To the extent Lender’s prior written approval is required pursuant to this Section 5.1.20, Lender shall have fifteen (15) days from receipt of written request and any and all reasonably required information and documentation relating thereto in which to approve or disapprove such request and such written request shall state thereon in bold letters of 14 point font or larger that action is required by Lender and Lender’s consent will be deemed given if there is no response by Lender. If Lender fails to approve or disapprove the right request within such fifteen (15) days, Lender’s approval shall be deemed given. Should Lender fail to require each new Tenant to execute approve any such request, Lender shall give Borrower and deliver to Baltimore Owner written notice setting forth in reasonable detail the basis for such disapproval. Lender a subordinationshall not unreasonably withhold, condition or delay approval of the execution of any subordination and non-disturbance of possession or similar recognition agreement requested by any tenant under a lease provided (i) Lender has approved such lease, which approval shall not be unreasonably withheld, conditioned or delayed, and attornment (ii) such agreement is in form, content scope and manner of execution substance reasonably acceptable to Lender.
Appears in 1 contract
Leasing Matters. Any (a) Borrower may enter into a proposed Lease executed after (including the date hereof renewal or extension of an existing Lease (and any amendment or termination thereofa “Renewal Lease”)) shall require without the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all provided such proposed Leases so long as the same Lease or Renewal Lease (ai) provide provides for rental rates and terms comparable to existing local market ratesrates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, contain reasonable market rate terms and do not contain any terms which would materially adversely affect Lender’s rights under in the Loan Documentscase of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (bii) are for is an arm’s-length transaction with a lease term not exceeding one yearbona fide, including all extensionsindependent third party tenant, (ciii) are with individualdoes not have a materially adverse effect on the value of the Property taken as a whole, residential, non-commercial tenants, (iv) is subject and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument Mortgage and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender Lender, (v) does not contain any option, offer, right of first refusal, or other similar right to acquire all or any other purchaser portion of the Property Property, (vi) has a base term of less than fifteen (15) years including options to renew, (vii) has no rent, credits, free rents or concessions granted thereunder, and (viii) is written on Borrower’s standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this subsection shall be subject to the prior approval of Lender and its counsel (which approval shall not be unreasonably withheld, conditioned or delayed), at a sale by foreclosure (or deed in lieu thereof) or power of saleBorrower’s expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this subsection together with Borrower’s certification that it has satisfied all of the conditions of this Section.
(ab) Borrower (i) shall observe and perform all the obligations imposed upon the lessor landlord under the Leases in a commercially reasonable mannerand shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (bii) shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leaseperformed; (civ) shall not collect any of the Rents more than one (1) month in advance (other than except security deposits required pursuant to such Leaseshall not be deemed Rents collected in advance); (dv) shall not execute any other assignment of the lessorlandlord’s interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the prior written consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce Rents under, accept a surrender of space under, or shorten the term of, any Lease (except including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Agreement and any subordination agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this subsection shall be subject to the prior approval of Lender and its counsel (in each case not to be unreasonably withheld, conditioned or delayed), at Borrower’s expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this subsection together with Borrower’s certification that it has satisfied all of the Loan Documents); conditions of this subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a surrender of space under, or shorten the term of any Major Lease.
(e) Notwithstanding anything contained herein to the contrary, Borrower shall not alternot, modify without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a surrender of space under, or change shorten the terms term of the Leases; and (f) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and deliver to Lender any Lease during a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to LenderCash Management Period.
Appears in 1 contract
Leasing Matters. Any Lease executed Leases with respect to the Property written after the date hereof (and any amendment or termination thereof) hereof, for more than 3,000 square feet shall require be subject to the prior written consent approval of Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld, conditioned or delayed. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby and that the Tenant thereunder lessee agrees to attorn to Mortgage Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower Borrower
(ai) shall cause Mortgage Borrower to observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall cause Mortgage Borrower to enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided (or any portion thereof) involved except that in no event shall termination by Mortgage Borrower terminate or accept the acceptance of surrender of any Lease by a Tenant of any Leases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the PropertyProperty (or any portion thereof); provided, however, that no such termination or surrender of any Lease covering more than 3,000 square feet will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (ciii) shall not permit Mortgage Borrower to collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not permit Mortgage Borrower to execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not permit Mortgage Borrower to alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall cause Mortgage Borrower to execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender Notwithstanding anything to the contrary contained herein, Borrower shall have not permit Mortgage Borrower to enter into a lease of all or substantially all of the right Property without Lender’s prior written consent. Notwithstanding anything to require each the contrary contained herein, all new Tenant Leases and all amendments, modifications, extensions, and renewals of existing Leases with Tenants that are Affiliates of Mortgage Borrower or Borrower shall be subject to execute and deliver to Lender a subordination, non-disturbance the prior written consent of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lender.
Appears in 1 contract
Samples: Mezzanine Loan Agreement
Leasing Matters. (a) Any Lease executed Major Leases with respect to the Property entered into after the date hereof (and any amendment or termination thereof) shall require be subject to the prior written consent approval of Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld, conditioned or delayed. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on USActive 30748472.10 -74- commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for have a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of businessMaterial Adverse Effect. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby Mortgage and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale; provided that Lender agrees that it shall, at the request of Operating Lessee, enter into a subordination, non-disturbance and attornment agreement with the Tenant under any Major Lease, in form and substance satisfactory Lender, Operating Lessee and such Tenant. Borrower Operating Lessee (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair in any material respect the value of the Property involvedProperty, provided except that in no event shall Borrower terminate termination by Operating Lessee or accept the acceptance of surrender of any Lease by a Tenant of any Leases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Major Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of any Major Lease without the Leasesprior written consent of Lender; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Notwithstanding anything to the contrary contained herein, neither Borrower nor any other Loan Party shall enter into (x) a lease of all or substantially all of the Property, or (y) any new Leases or any amendment, modification, extension or renewal of existing Leases with any Affiliates of Borrower or any other Loan Party without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed.
(b) Notwithstanding the provisions above, to the extent Lender’s written approval is required pursuant to this Section 5.1.20, Borrower’s or Operating Lessee’s written request therefor shall be delivered together with (if applicable) a copy of the proposed Lease, modification or other instrument requiring approval, and any other information reasonably requested in writing by Lender in order to evaluate such request (it being acknowledged and agreed that no request for consent shall be effective unless and until such materials have been delivered to Lender) and shall include a notation prominently displayed in bold, all caps and fourteen (14) point or larger font in the right transmittal letter requesting approval, that “PURSUANT TO SECTION 5.1.20 OF THE LOAN AGREEMENT, THIS IS A REQUEST FOR LENDER’S CONSENT”. In the event that Lender fails to require each new Tenant to execute and respond within said ten (10) day period, Borrower shall deliver a second notice to Lender with a subordinationnotation prominently displayed in bold, non-disturbance all caps and fourteen (14) point or larger font in such notice requesting approval, that “PURSUANT TO SECTION 5.1.20 OF THE LOAN AGREEMENT, THIS IS A REQUEST FOR LENDER’S CONSENT. IMMEDIATE RESPONSE REQUIRED, FAILURE TO RESPOND TO THIS APPROVAL REQUEST WITHIN TEN (10) DAYS FROM RECEIPT SHALL BE DEEMED TO BE LENDER’S APPROVAL”. In the event that Lender fails to respond to such second notice, such failure shall be deemed to be the consent and approval of possession Lender of such request. Upon Lender’s request, Operating Lessee shall be required to provide Lender with such material information and attornment agreement documentation as may be reasonably required by Lender, in formits reasonable discretion, content including, USActive 30748472.10 -75- without limitation, lease comparables and manner other market information as reasonably required by Lender to reach a decision. For purposes of execution reasonably acceptable clarification, Lender request for any material information regarding a proposed Lease or the tenant thereunder from Operating Lessee, in addition to Lenderapproving or denying any request (in whole or in part), shall be deemed a response by Lender for purposes of the foregoing.
(c) If pursuant to the terms of an Operating Lease which is in full force and effect with respect to the Property, Operating Lessee (and not the Borrower that owns the Property) shall be the sole party entitled to enter into Leases with Tenants for all or any portion of the Property, then the Borrower that owns the Property shall cause Operating Lessee to comply with the terms of this Section 5.1.20 with respect to the Property. In the event that an Operating Lease is not in effect with respect to the Property, then Borrower shall be the sole party entitled to lease all or any portion of the Property and in doing so shall comply with all obligations of Operating Lessee under this Section 5.1.20 with respect to the Property.
Appears in 1 contract
Leasing Matters. Any Lease executed From and after the date hereof Funding Date:
(and a) With respect to any amendment Collateral Property, the applicable Operating Lessee may enter into a proposed Lease (including the renewal or termination thereofextension of an existing Lease (a “Renewal Lease”)) shall require without the prior written consent of LenderAdministrative Agent, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all provided such proposed Leases so long as the same Lease or Renewal Lease (ai) provide provides for rental rates and terms comparable to existing local market ratesrates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by such Borrower (unless, contain reasonable market rate terms and do not contain any terms which would materially adversely affect Lender’s rights under in the Loan Documentscase of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (bii) are for is an arms-length transaction with a lease term not exceeding one yearbona fide, including all extensionsindependent third party tenant, (ciii) are with individualwould not cause a Material Property Event, residential, non-commercial tenants, (iv) is subject and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and related Mortgage and, upon Administrative Agent’s reasonable request, the Liens created thereby and that the Tenant lessee thereunder agrees to attorn to Lender Administrative Agent and Lenders pursuant to an agreement acceptable to Administrative Agent and (v) is not a Major Lease. All proposed Leases that do not satisfy the requirements set forth in this Section 7.16(a) shall be subject to the prior approval of Administrative Agent, which approval shall not be unreasonably withheld, delayed or any other purchaser conditioned. At Administrative Agent’s request, Borrowers shall promptly deliver to Administrative Agent copies of all Leases that are entered into pursuant to this Subsection together with Borrowers’ certification that they have satisfied all of the Property at a sale by foreclosure conditions of this Section.
(or deed in lieu thereofb) or power of sale. Borrower Borrowers (ai) shall observe and perform the all material obligations imposed upon the lessor lessors under the Major Leases in a commercially reasonable mannerand shall not do or permit to be done anything to impair the value of any of the Major Leases as security for the Obligations; (bii) shall promptly send copies to Administrative Agent of all notices of default or other material matters which Borrowers shall send or receive with respect to the Major Leases; (iii) shall enforce all of the material terms, covenants and conditions contained in the Major Leases upon the part of the Tenant tenants thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair (except for the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason termination of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; providedMajor Lease, however, that no such termination or surrender of any Lease will be permitted without the which shall require Administrative Agent’s prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leaseapproval); (civ) shall not collect any of the Rents more than one (1) month in advance (other than security deposits required pursuant except Security Deposits, and any overpayments of additional rent subject to such Leaselater true-up provisions, shall not be deemed Rents collected in advance); (dv) shall not execute any other assignment of the lessor’s interest in any of the Major Leases or the Rents Rents; and (except vi) shall not consent (to Lender the extent that lessor’s consent is required under a Major Lease) to any assignment of or subletting under any Major Leases not in accordance with their terms, without the prior written consent of Administrative Agent, which consent shall not be unreasonably withheld, delayed or conditioned.
(c) Borrowers may, without the consent of Administrative Agent, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such Lease is not a Major Lease and that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) would not cause a Material Property Event, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Agreement and any Lease subordination agreement binding upon Administrative Agent with respect to such Lease. A termination of a Lease (other than a Major Lease) with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action that constitutes a Material Property Event unless it causes a breach, default or failure of performance under a Management Agreement or Franchise Agreement. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening that does not satisfy the requirements set forth in this Subsection shall be subject to the prior written approval of Administrative Agent, at Borrowers’ expense, which approval shall not be unreasonably withheld, delayed or conditioned. At Administrative Agent’s request, Borrowers shall promptly deliver to Administrative Agent copies of all Leases, amendments, modifications and waivers that are entered into pursuant to this Section 7.16(c) together with each applicable Borrower’s certification that it has satisfied all of the Loan Documentsconditions of this Section 7.16(c).
(d) Notwithstanding anything contained herein to the contrary, with respect to any Collateral Property, no Borrower shall, without the prior written consent of Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned), enter into, materially amend, materially modify, waive any material provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, or renew or extend upon terms and conditions less favorable to such Borrower, any Major Lease or any instrument guaranteeing or providing credit support for any Major Lease; provided, however, such Borrower shall not be required to obtain Administrative Agent’s written consent to any immaterial, non-economic change or beneficial economic change to a Major Lease (provided that, changes materially altering: the square footage leased, the location or use of the Collateral Property or extending the term including any renewal option for a period in excess of five (5) years shall, in each case, be considered a material change); and provided further, that no consent shall be required for any amendment under any Operating Lease, to the extent such amendment would not reasonably be expected to cause a Material Property Event or result in a Material Adverse Effect including, without limitation, any extension or amendment made to adjust lease rates between lessor and lessee as needed in order to comply with the transfer pricing requirement of Section 482 of the Code as necessary to avoid the imposition of penalties and to protect the status of FelCor Trust as a real estate investment trust. For the avoidance of doubt, to the extent that the lessor’s consent is required under the applicable Major Lease, any assignment or sublease of a Major Lease shall require the consent of Administrative Agent, which consent shall not be unreasonably withheld, delayed or conditioned.
(e) To the extent actually received by Administrative Agent, Administrative Agent shall not alterhold any and all monies representing security deposits under the Leases (the “Security Deposits”) received by Administrative Agent, modify or change in accordance with the terms of this Agreement and the respective Lease, and shall only release the Security Deposits in order to return a tenant’s Security Deposit to such tenant if such tenant is entitled to the return of the Security Deposit under the terms of the LeasesLease.
(f) To the extent that Administrative Agent’s consent or approval is required under this Section 7.16, any such proposed modification, change, supplement, alteration, amendment, assignment or sublease of a Lease or Major Lease submitted to Administrative Agent for approval shall be deemed approved if (i) Borrowers deliver to Administrative Agent a written request for such approval marked in bold lettering with the following language: ADMINISTRATIVE AGENT’S RESPONSE IS REQUIRED WITHIN FIFTEEN (15) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND ADMINISTRATIVE AGENT” and the envelope containing the request must be marked “PRIORITY”; and (fii) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender Administrative Agent shall have failed to notify Borrowers of its approval or disapproval within such fifteen (15) Business Days following Administrative Agent’s receipt of Borrowers’ written request together with such proposed modification, change, supplement, alteration, amendment, assignment or sublease of a Lease or Major Lease, and any and all other information and documentation relating thereto reasonably required by Administrative Agent to reach a decision. In no event shall Administrative Agent be deemed under the right preceding sentence to require each new Tenant to execute and have approved any change having a Material Adverse Effect. Upon Borrowers’ request, Administrative Agent shall deliver to Lender Borrower a subordination, non-disturbance reasonably detailed description of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lenderthe reasons for any disapprovals under this Section 7.16.
Appears in 1 contract
Samples: Credit Agreement (FelCor Lodging LP)
Leasing Matters. Any Lease executed after the date hereof (and any amendment or termination thereof) Major Leases shall require be subject to the prior written consent approval of Lender, which consent approval shall not be in unreasonably withheld, conditioned or delayed; provided, however, that Lender’s sole approval of any Major Lease shall not be required if Borrower satisfies the following conditions: (i) such Major Lease provides for net effective rent of at least 90% of the net effective rent of the existing Lease for the leased premises, (ii) the term of such Major Lease is at least five (5) years and absolute discretion(iii) Borrower delivers to Lender an Officer’s Certificate certifying that the requirements in the preceding clauses (i) and (ii) have been satisfied. Upon written request, Borrower shall shall, or cause Senior Borrower to, furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreementsLeases not previously delivered to Lender. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower shall, or shall cause Senior Borrower to: (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce (and Borrower and Senior Borrower may amend or terminate) the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not reasonably likely to materially impair the value of the Individual Property involved, provided involved except that in no event shall termination by Borrower terminate or accept the Senior Borrower or acceptance of surrender of any Lease by a Tenant of any Leases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Individual Property; provided, however, that that, except for an as-of-right termination exercised by a Tenant under its Lease, no such termination or surrender of any Major Lease or any Lease for all or substantially all of the Improvements at an Individual Property will be permitted without the prior written consent of Lender (such consent not to be unreasonably withheld, conditioned or unless such termination or surrender is specifically provided for in the Leasedelayed); (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leaseand Lease Termination Payments which constitute prepaid Rents) other than the following Leases, which Lender acknowledges and agreed are paid on a quarterly basis: (A) Grande Communications Networks, Inc. (300 Xxxxxxx Xxxxxx, San Marcos, TX 78666 ) and (B) Cofinity, Inc. (20000 Xxxxxxxxxxxx Xxx, Xxxxxxxxxx, XX 00000); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Senior Loan Documents or the Loan Documents); and (ev) shall not alter, modify or change the terms of the Leases; Leases in a manner inconsistent with the provisions of the Loan Documents or Senior Loan Documents. Notwithstanding anything to the contrary contained herein, all new Leases and (f) all amendments, modifications, extensions, and renewals of existing Leases with Tenants that are Affiliates of Borrower shall execute be subject to the prior written consent of Lender. As of the Closing Date and deliver as of the Funding Date, there are no Affiliated Tenants at the request Property. Lender hereby approves the BCBS Lease Modifications; provided, however, that (i) Borrower shall promptly provide Lender with copies of Lender all such further assurances, confirmations and assignments any definitive agreements entered into in connection with the Leases as Lender shall from time BCBS Lease Modifications and (ii) if there are any material changes to time reasonably require. Lender shall have the right to require each new Tenant to execute and deliver to Lender a subordination, economic terms or material non-disturbance of possession and attornment agreement economic terms described in formthe BCBS LOI, content and manner of execution reasonably acceptable then such changes shall be subject to Lender’s prior written approval, not to be unreasonably withheld, conditioned or delayed. For clarity, the Lease Termination Payments made in connection with the BCBS Lease Modifications shall be applied to reduce the Senior Release Amount and the Release Amount for the applicable Individual Properties on a pro rata basis.
Appears in 1 contract
Leasing Matters. Any Lease executed after (a) Except as otherwise consented to by Lender in writing, all Leases shall be written on the date hereof standard form of lease for such parcel delivered to Lender prior to the closing of the Loan. No material changes (and any amendment or termination thereofother than changes which are in the ordinary course of the Borrower’s business and/or are required by applicable law, so long as such changes do not have a Material Adverse Effect) shall require may be made to the standard form of lease without the prior written consent of Lender. In addition, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all proposed Leases so long as the same (a) leases shall provide for rental rates and terms comparable to existing local market rates, contain reasonable market rate rates as determined by Borrower and terms and do not contain any terms which would materially adversely affect Lender’s rights under the Loan Documentsshall be arm’s-length transactions with bona fide, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial independent third party tenants, and (d) have been entered into by Borrower in its ordinary course of business. All proposed commercial Leases executed after and modifications and renewals of existing Leases for commercial space shall be subject to the date hereof prior approval of Lender and its counsel, at Borrower’s expense, such approval not to be unreasonably withheld or delayed. All commercial Leases shall provide that they are subordinate to the Security Instrument and the Liens created thereby Mortgage and that the Tenant thereunder tenant agrees to attorn to Lender. Notwithstanding the foregoing, Lender or any other purchaser acknowledges that certain homesites are not leased to Tenants pursuant to written instruments. From and after the date hereof, Borrower shall agree to offer written Leases to new Tenants in accordance with its current ordinary course of the Property at a sale by foreclosure business practices.
(or deed in lieu thereofb) or power of sale. Borrower (ai) shall observe and perform all the obligations imposed upon the lessor landlord under the Leases in a commercially reasonable mannerand shall not do or permit to be done anything to impair the value of the Leases as security for the Debt; (bii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value performed, short of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Propertytermination thereof; provided, however, that no such termination with respect to mobile home or surrender of any recreational vehicle community residential property, a residential Lease will may be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for terminated in the Leaseevent of a default by the tenant thereunder; (ciii) shall not collect any of the Rents more than one one
(1) month in advance advance, except for (other A) Rents aggregating in an amount equal to less than security deposits required pursuant five percent (5.0%) of the Operating Income of the Property and (B) Rents collected with respect to such Lease)recreational vehicle sites; and (div) shall not execute any other assignment of the lessorlandlord’s interest in the Leases or the Rents Rents.
(except c) Notwithstanding the provisions of subsection (a) above, renewals of existing commercial Leases and proposed Leases for commercial space shall not be subject to Lender the prior approval of Lender, provided all of the following conditions are satisfied: (i) the rental income pursuant to the Loan Documents); renewal or proposed Lease is not more than five (e5%) shall not alter, modify or change the terms percent of the Leases; total rental income for the Property (exclusive of any rental income from recreational vehicle sites), (ii) the renewal or proposed Lease has a base term of less than six (6) years including options to renew (other than leases for laundry facilities which may include a 10-year term), (iii) the renewal or proposed Lease is subject and subordinate to the Mortgage and the tenant thereunder shall have agreed to attorn to Lender, (iv) the renewal or proposed Lease is on the standard form of lease approved by Lender, (v) the renewal or proposed Lease does not contain any option, offer, right of first refusal, right of first offer or other similar right to acquire all or any portion of the Property, and (fvi) the renewal or proposed Lease provides for rental rates and terms comparable to existing market rates as determined by Borrower and terms and is an arm’s-length transaction with a bona fide, independent third party tenant. Borrower shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Lender shall have the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance copies of possession and attornment agreement in form, content and manner all Leases which are entered into pursuant to the preceding sentence together with Borrower’s certification that it has satisfied all of the conditions of the preceding sentence within thirty (30) days after the execution reasonably acceptable to Lenderof the Lease.
Appears in 1 contract
Samples: Loan Agreement (Sun Communities Inc)
Leasing Matters. (a) Any Material Lease executed with respect to the Property written after the date hereof (and any amendment or termination thereof) shall require be subject to the prior written consent approval of Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld, conditioned or delayed. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby Mortgage and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Property involved, provided involved except that in no event shall termination by Borrower terminate or accept the acceptance of surrender of any Lease by a Tenant of a Material Lease shall be permitted (A) unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted (B) without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. .
(b) Notwithstanding anything to the contrary contained herein, (i) Borrower shall not enter into a lease of all or substantially all of the Property without Lender’s prior written consent, (ii) all new Leases and all amendments, modifications, extensions, and renewals of existing Leases with Tenants that are Affiliates of Borrower shall be subject to the prior written consent of Lender, and (iii) Borrower may allow Manager to enter into license agreements at the Property without the prior written consent of Lender shall have provided such licenses do not require Borrower approval under the right to require each new Tenant to execute and deliver to Lender a subordination, non-disturbance of possession and attornment agreement in form, content and manner of execution reasonably acceptable to LenderManagement Agreement.
Appears in 1 contract
Leasing Matters. Any (a) Borrower may cause Mortgage Borrower to enter into a proposed Lease executed after (including the date hereof renewal or extension of an existing Lease (and any amendment or termination thereofa “Renewal Lease”)) shall require without the prior written consent of Lender, which consent shall be in Lender’s sole and absolute discretion. Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all renewals of Leases and all provided such proposed Leases so long as the same Lease or Renewal Lease (ai) provide provides for rental rates and terms comparable to existing local market ratesrates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Mortgage Borrower (unless, contain reasonable market rate terms and do in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arm’s-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of any Individual Property taken as a whole, (iv) does not contain any terms option, offer, right of first refusal, or other similar right to acquire all or any portion of any Individual Property, and (v) has a base term of less than fifteen (15) years including options to renew. All proposed Leases which would materially adversely affect Lenderdo not satisfy the requirements set forth in this subsection shall be subject to the prior approval of Lender and its counsel, at Borrower’s rights under expense. Borrower shall cause Mortgage Borrower to promptly deliver to Lender copies of all Leases which are entered into pursuant to this subsection together with Borrower’s certification that it has satisfied or caused Mortgage Borrower to have satisfied all of the Loan Documents, conditions of this Section.
(b) are for a lease term not exceeding one year, including all extensions, Borrower shall cause Mortgage Borrower to (ci) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and the Liens created thereby and that the Tenant thereunder agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower (a) shall observe and perform all the obligations imposed upon the lessor landlord under the Leases in a commercially reasonable mannerall material respects and shall not do or permit to be done anything to materially impair the value of any of the Leases as security for the Debt; (bii) promptly send copies to Lender of all notices of default which Mortgage Borrower shall send or receive thereunder; (iii) enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not impair the value of the Property involved, provided that in no event shall Borrower terminate or accept the surrender of any Lease by a Tenant unless by reason of a Tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the Leaseperformed; (civ) shall not collect any of the Rents more than one (1) month in advance (other than except security deposits required pursuant to such Leaseshall not be deemed Rents collected in advance); (dv) shall not execute any other assignment of the lessorlandlord’s interest in any of the Leases or the Rents (except to Lender pursuant to as contemplated by the Mortgage Loan Documents); and (evi) shall not alterconsent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the prior written consent of Lender, cause Mortgage Borrower to amend, modify or change waive the terms provisions of any Lease or terminate, reduce Rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the Leases; affected space) does not have a materially adverse effect on the value of any Individual Property taken as a whole, and (f) provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Agreement. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall execute and deliver at not be considered an action which has a materially adverse effect on the request value of any Individual Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this subsection shall be subject to the prior approval of Lender all such further assurancesand its counsel, confirmations and assignments in connection with the Leases as Lender at Borrower’s expense. Borrower shall from time cause Mortgage Borrower to time reasonably require. Lender shall have the right to require each new Tenant to execute and promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this subsection together with Borrower’s certification that it has satisfied or caused to be satisfied all of the conditions of this subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall cause Mortgage Borrower to not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a subordinationsurrender of space under, non-disturbance or shorten the term of possession and attornment agreement in form, content and manner of execution reasonably acceptable to Lenderany Major Lease.
Appears in 1 contract
Leasing Matters. Any Lease executed Leases with respect to an Individual Property written after the date hereof (and any amendment or termination thereof) hereof, for more than 20,000 square feet shall require the prior written consent of be approved by Lender, which consent approval shall not be in Lender’s sole and absolute discretionunreasonably withheld. Upon request, Borrower shall furnish Lender with true, correct and complete executed copies of all Leases, amendments thereof and any related agreements. Without limitation, and as applicable, Lender shall be deemed to have approved all All renewals of Leases and all proposed Leases so long as the same (a) shall provide for rental rates comparable to existing local market rates, contain . All proposed Leases shall be on commercially reasonable market rate terms and do shall not contain any terms which would materially adversely affect Lender’s 's rights under the Loan Documents, (b) are for a lease term not exceeding one year, including all extensions, (c) are with individual, residential, non-commercial tenants, and (d) have been entered into by Borrower in its ordinary course of business. All Leases executed after the date hereof shall provide that they are subordinate to the Security Instrument and Mortgage encumbering the Liens created thereby applicable Individual Property and that the Tenant thereunder lessee agrees to attorn to Lender or any other purchaser of the Property at a sale by foreclosure (or deed in lieu thereof) or power of sale. Borrower Borrower
(ai) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (bii) shall enforce and may amend or terminate the terms, covenants and conditions contained in the Leases upon the part of the Tenant lessee thereunder to be observed or performed in a commercially reasonable manner and in a manner which does not to impair the value of the Individual Property involved, provided involved except that in no event shall termination by Borrower terminate or accept the acceptance of surrender by a tenant of any Lease by a Tenant Leases shall be permitted unless by reason of a Tenant tenant default and then only in a commercially reasonable manner to preserve and protect the Individual Property; provided, however, that no such termination or surrender of any Lease covering more than 20,000 square feet will be permitted without the prior written consent of Lender or unless such termination or surrender is specifically provided for in the LeaseLender, which consent shall no be unreasonably withheld; (ciii) shall not collect any of the Rents rents more than one (1) month in advance (other than security deposits required pursuant to such Leasedeposits); (div) shall not execute any other assignment of the lessor’s 's interest in the Leases or the Rents (except to Lender pursuant to as contemplated by the Loan Documents); (ev) shall not alter, modify or change the terms of the LeasesLeases in a manner inconsistent with the provisions of the Loan Documents; and (fvi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require. Notwithstanding anything to the contrary contained herein, Borrower shall not enter into a individual lease of all or substantially all of any Individual Property without Lender's prior written consent, which consent shall no be unreasonably withheld. At the request of Borrower, Lender shall have the right to require each new Tenant to execute will, at Borrower's cost and deliver to Lender expense, enter into a subordinationSubordination, nonNon-disturbance of possession Disturbance and attornment agreement in Attornment Agreement ("SNDA") with any tenant leasing more than 5,000 square feet on Lender's standard form, content provided, that with respect to any tenant leasing less than 5,000 square feet, Lender will, at Borrower's cost and manner of execution reasonably acceptable to Lenderexpense, enter into such SNDA in its reasonable discretion.
Appears in 1 contract
Samples: Loan Agreement (Koger Equity Inc)
