Lease Estoppels With respect to each Mortgage Loan secured by retail, office or industrial properties, the Mortgage Loan Seller requested the related Mortgagor to obtain estoppels from each commercial tenant with respect to the Certified Rent Roll (except for tenants for whom the related lease income was excluded from the Mortgage Loan Seller’s underwriting). With respect to each Mortgage Loan predominantly secured by a retail, office or industrial property leased to a single tenant, the Mortgage Loan Seller reviewed such estoppel obtained from such tenant no earlier than 90 days prior to the origination date of the related Mortgage Loan (or such longer period as Mortgage Loan Seller may deem reasonable and appropriate based on Mortgage Loan Seller’s practices in connection with the origination of similar commercial and multifamily loans intended for securitization), and to Mortgage Loan Seller’s knowledge, based solely on the related estoppel, (x) the related lease is in full force and effect and (y) there exists no material default under such lease, either by the lessee thereunder or by the lessor subject, in each case, to customary reservations of tenant’s rights, such as with respect to CAM and pass-through audits and verification of landlord’s compliance with co-tenancy provisions.
Tenant Estoppels (a) Each Seller shall prepare and deliver to each Tenant at such Seller’s Property an estoppel certificate in the form of Exhibit A attached hereto (the “Tenant Estoppel”) and request each such Tenant to execute and deliver the Tenant Estoppel to such Seller. Each Seller shall use commercially reasonable efforts to obtain the prompt return of the executed Tenant Estoppels in substantially the same form as Exhibit A attached hereto from each Tenant at such Seller’s Property prior to the Closing, without the obligation to make any payments or grant any concessions under the Leases. If a Tenant returns an executed Tenant Estoppel (or Lease Required Estoppel or Statement of Lease as defined below) to such Seller, such Seller shall promptly deliver to the Buyer, or make available on Seller’s transaction website, a copy of such executed Tenant Estoppel (or Lease Required Estoppel or Statement of Lease, if applicable) following such Seller’s receipt of such Tenant Estoppel (or Lease Required Estoppel or Statement of Lease, if applicable).
(b) In the event that the Closing hereunder shall occur simultaneously with the Initial Closing, it shall be a condition to the Buyer’s obligation to close the sale and purchase of the Transferred Assets that, on or before the Initial Closing Date, the Sellers deliver to the Buyer from Tenants (other than the GSA and the Tenants of the properties associated with the LLC Interests and the Partnership Interests (as each such term is defined in the Master PSA), unless the applicable joint venture partner elects to sell all of its interest in the applicable joint venture entity and separate agreements for the sale of such properties to the Buyer are entered into as contemplated in Section 3.9(a)(y) and Section 3.9(b)(y), respectively, of the Master PSA) whose Leases comprise at least seventy-five percent (75%) of remaining base rental income over the lease term as of the date of this Agreement as determined in accordance with the schedule delivered by the Sellers to the Buyer prior to the date hereof, signed tenant estoppel certificates that are substantially in the form of either (1) the Tenant Estoppel or (1) except with respect to ROFO Documents and ROFR Documents (for which Tenant Estoppels, and not Lease Required Estoppels, shall be required), with respect to those Leases that contain a required form of specific estoppel that is attached as an exhibit to such Lease, the form of estoppel attached to such Lease (each, a “Lease Required Estoppel”); provided, however, that Buyer may, in its sole discretion, in order to accommodate Serial Closings pursuant to the Master PSA, waive the requirement set forth in this Section 3.4(b), which shall also constitute a waiver of such corresponding requirement in each Other PSA (and in such event, Seller shall be under no obligation to provide a Sellers’ Estoppel Certificate). For purposes of this Section 3.4(b) only, the terms “Tenants” and “Leases” shall refer to the Tenants and the Leases in respect of the Properties to be purchased and sold pursuant to this Agreement and the “Tenants” and “Leases” (as each such term is defined in each of the Other PSAs) in respect of the “Properties” (as such term is defined in each of the Other PSAs) to be purchased and sold pursuant to each Other PSA, collectively. No Tenant Estoppel or Lease Required Estoppel shall be dated earlier than forty-five (45) days prior to the Initial Closing Date and no such estoppel shall allege any material defaults by the Sellers (except to the extent any such default has been disclosed in writing by the Sellers to the Buyer as of the date of this Agreement) or accrued and outstanding offsets or defenses under the relevant Lease or contain any materially adverse deviations between (A) the information specified in said Tenant Estoppel or Lease Required Estoppel, as applicable, and (B) (x) the representations and warranties of the Sellers set forth in this Agreement or (y) the Leases to which such Tenant Estoppel or Lease Required Estoppel, as applicable, relate. Notwithstanding anything to the contrary in this Section 3.4, Sellers shall also use commercially reasonable efforts to obtain a Statement of Lease from the GSA with respect to each Lease to which the GSA is a party. The Buyer shall cooperate with the Sellers to obtain (i) any novation of the applicable Lease with the GSA that may be required by the GSA in order to assign the applicable Lease to the Buyer or its applicable Designated Subsidiary and (ii) any Statement of Lease. In the event the GSA requires any Seller to remain liable under the applicable Lease with the GSA after the Closing Date, the Buyer hereby agrees to indemnify and hold harmless each such Seller against any Losses (as defined below) arising out of such Lease after the Closing Date except to the extent such Losses are the result of any action taken by any such Seller or its Affiliates with respect to such Leases with the GSA.
Estoppels (i) Sellers shall have received from tenants (which tenants shall include the tenants leasing space pursuant to the Commercial Leases listed on Schedule 8.2(f)(i) of the Seller Disclosure Letter) leasing at least seventy-five percent (75%) of the aggregate square footage leased pursuant to all Commercial Leases, a certificate (an "Estoppel"), addressed to the Company and its lender (as defined in the Estoppel attached as Exhibit D hereto), dated not more than sixty (60) days prior to the Closing Date, in either (A) the form of Estoppel attached as Exhibit D hereto or (B) the form of Estoppel returned by the tenant whose Estoppel is being sought pursuant to this Section 8.2(f)(i) provided such form of Estoppel is substantially comparable to the form of Estoppel attached as Exhibit D hereto. The Company hereby acknowledges and agrees that, in lieu of any one or more of such Estoppels, MPLP may deliver a landlord Estoppel provided that (A) such form of landlord Estoppel is in the form of Estoppel attached as Exhibit D hereto, (B) the landlord Estoppels delivered by MPLP pursuant to this Section 8.2(f)(i) shall not be given in respect of more than ten percent (10%) of the aggregate square footage leased pursuant to all Commercial Leases and (C) such landlord Estoppels delivered by MPLP shall not be delivered in respect of the Commercial Leases listed on Schedule 8.2(f)(i) of the Seller Disclosure Letter.
(ii) Sellers shall have received an Estoppel from each lessor under a Ground Lease, addressed to the Company and its lender (as defined in the Estoppel attached as Exhibit E hereto), dated not more than sixty (60) days prior to the Closing Date in either (A) the form of Estoppel attached as Exhibit E hereto or (B) the form of Estoppel returned by the lessor whose Estoppel is being sought pursuant to this Section 8.2(f)(ii) provided such form of Estoppel is substantially comparable to the form of Estoppel attached as Exhibit E hereto.
Tenant Estoppel Certificates (a) Seller agrees from and after receipt of the Assumption Approval as set forth in Section 9.1 and provided this Agreement is in full force and effect, within five (5) business days after being requested by Purchaser to do so, to deliver to all tenants of the Property a request for an estoppel certificate in the form of EXHIBIT D attached hereto, which form may be revised if so requested by the Existing Lender. The parties agree that, subject to the provisions of subparagraph (b) below, it shall be a condition to Purchaser's obligation to close under this Agreement that an estoppel certificate either substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than ten (10) business days prior to the Closing Date, be delivered to Purchaser no later than five (5) business days before Closing from tenants under the Leases occupying, in the aggregate, not less than 75% of the rentable area of the Property, including all tenants occupying at least a full floor or more of space (a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers such Tenant Estoppels from tenants occupying at least 60% of the rentable area of the Property, Seller may execute and deliver to Purchaser, at Closing, its own certificate with respect to tenants occupying up to an additional 15% of the rentable area of the Property (substantially in the form of EXHIBIT D or in the form required by a tenant's Lease, appropriately modified to reflect that they are certificates of Seller and made to Seller's knowledge; hereinafter, the "SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein shall survive the Closing until the earlier of (a) one hundred and eighty (180) days after Closing, or (b) the date Purchaser obtains an estoppel certificate from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing non-material exceptions, qualifications or modifications shall be deemed to be an acceptable estoppel certificate for purposes of this Section 7.4.5. In the event a Tenant Estoppel contains a material exception or qualification or alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"), subject to the following provisions of this Section 7.4.5), Purchaser's sole and exclusive remedy shall be to terminate this Agreement by delivering notice thereof in writing to Seller, on the earlier of five (5) business days after the date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the essence as to the giving of such notice. If Purchaser shall timely give the Estoppel Termination Notice, then subject to Seller's option set forth below, this Agreement shall terminate, and upon such termination, Purchaser shall be entitled to the return of the Deposit Note and all interest thereon, and neither party shall have any obligation hereunder other than as may be expressly provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall not have the right to terminate this Agreement if Tenant Estoppel(s) allege Material Default(s) if (x) such Material Default(s) can be remedied by the performance of work costing not more than $50,000 in the aggregate for all such Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the aggregate with respect to such tenants and (y) Seller elects (by written notice to Purchaser given simultaneously with Seller's delivery of such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no obligation), to cure the nonconforming matter set forth in such estoppel by either performing or causing to be performed the work on or prior to the Closing Date, by paying the money on or prior to the Closing Date, or by granting Purchaser a credit against the Purchase Price in an amount reasonably necessary to perform such work, as reasonably determined by Seller and Purchaser, in which event Seller shall, at or before the Closing, cure, perform, pay or grant Purchaser a credit with respect to the same.
Subordination to Mortgages; Estoppel Certificate Tenant accepts this Lease subject and subordinate to any mortgage(s), deed(s) of trust, ground lease(s) or other lien(s) now or subsequently arising upon the Premises, the Building or the Property, and to renewals, modifications, refinancings and extensions thereof (collectively referred to as a “Mortgage”). The party having the benefit of a Mortgage shall be referred to as a “Mortgagee”. This clause shall be self-operative, but upon request from a Mortgagee, Tenant shall execute a commercially reasonable subordination agreement in favor of the Mortgagee. As an alternative, a Mortgagee shall have the right at any time to subordinate its Mortgage to this Lease. Upon request, Tenant, without charge, shall attorn to any successor to Landlord’s interest in this Lease. Landlord and Tenant shall each, within 10 days after receipt of a written request from the other, execute and deliver a commercially reasonable estoppel certificate to those parties as are reasonably requested by the other (including a Mortgagee or prospective purchaser). Without limitation, such estoppel certificate may include a certification as to the status of this Lease, the existence of any defaults and the amount of Rent that is due and payable. Notwithstanding the foregoing, upon written request by Tenant, Landlord will use reasonable efforts to obtain a non-disturbance, subordination and attornment agreement from Landlord’s then current Mortgagee on such Mortgagee’s then current standard form of agreement. “Reasonable efforts” of Landlord shall not require Landlord to incur any cost, expense or liability to obtain such agreement, it being agreed that Tenant shall be responsible for any fee or review costs charged by the Mortgagee. Upon request of Landlord, Tenant will execute the Mortgagee’s form of non-disturbance, subordination and attornment agreement and return the same to Landlord for execution by the Mortgagee. Landlord’s failure to obtain a non-disturbance, subordination and attornment agreement for Tenant shall have no effect on the rights, obligations and liabilities of Landlord and Tenant or be considered to be a default by Landlord hereunder.
Tenant Estoppel Certificate Please refer to the documents described in Schedule 1 hereto, (the “Lease Documents”) including the “Lease” therein described; all defined terms in this Certificate shall have the same meanings as set forth in the Lease unless otherwise expressly set forth herein. The undersigned Tenant hereby certifies that it is the tenant under the Lease. Tenant hereby further acknowledges that it has been advised that the Lease may be collaterally assigned in connection with a proposed financing secured by the Property and/or may be assigned in connection with a sale of the Property and certifies both to Landlord and to any and all prospective mortgagees and purchasers of the Property, including any trustee on behalf of any holders of notes or other similar instruments, any holders from time to time of such notes or other instruments, and their respective successors and assigns (the “Beneficiaries”) that as of the date hereof:
Estoppel Certificates Tenant will, (a) within five (5) days after Tenant receives written notice from Landlord, from time to time, and (b) on the Lease Commencement Date simultaneous with the execution of the Lease Commencement Agreement, execute, acknowledge, and deliver to Landlord, at no cost to Landlord, a statement in writing (i) certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that this Lease is in full force and effect as modified and stating the modifications), (ii) stating the dates to which the Rent has been paid by Tenant, (iii) stating whether to the best knowledge of Tenant, Landlord has failed to fulfill any of its obligations under this Lease, and, if so, specifying each such failure of which Tenant has knowledge, (iv) stating that Tenant will give written notice to Landlord’s tender of any failure by Landlord to fulfill any of its obligations under this Lease, (v) stating the address to which notices to Tenant should be sent, (vi) for the estoppel certificate delivered on the Lease Commencement Date, stating that Tenant accepts the Premises and the improvements therein, and (vii) providing any other such information Landlord reasonably requests relating to this Lease. Any owner of the Building, any prospective purchaser of the Building, any Mortgagee or prospective Mortgagee of the Building or of Landlord’s interest, or any prospective assignee of any such mortgage may be rely on any such statement delivered pursuant hereto. Tenant irrevocably appoints Landlord, as Tenant’s attorney-in-fact, to execute and deliver on Tenant’s behalf any estoppel certificate to which Tenant does not object with specificity in writing within five (5) days of Tenant’s receipt thereof. Tenant acknowledges and agrees that Tenant’s compliance with the requirements of this Section is necessary for Landlord to manage efficiently the financial and other aspects of owning and operating the Project (including facilitating the financing, refinancing, and/or sale of the Building or Project, any part thereof or any interest therein) and that any breach or other violation of the provisions of this Section will result in material damages to Landlord (including any damages to Landlord in connection with its financing, refinancing, or sale of the Project, any part thereof, or any interest therein that results from any such breach or violation). Any breach or other violation of any requirement of this Section will be a default hereunder, entitling Landlord to undertake immediately an action for the damages resulting therefrom (including any consequential, direct, and/or indirect damages) and pursue any other remedies available to Landlord on account of such default, including any remedies available under this Lease or at law or equity.
Estoppel Certificate or Subordination Agreement Tenant fails to execute any document required from Tenant under Sections 23 or 27 within 5 days after a second notice requesting such document.
Waiver and Estoppel (a) Navistar Financial agrees, to the extent it may lawfully do so, that it will not at any time in any manner whatsoever claim or take the benefit or advantage of any appraisement, valuation, stay, extension, moratorium, turnover or redemption law, or any law permitting it to direct the order in which the Collateral shall be sold, now or at any time hereafter in force, which may delay, prevent or otherwise affect the performance or enforcement of this Agreement and hereby waives all benefit or advantage of all such laws and covenants that it will not hinder, delay or impede the execution of any power granted to the Trustee in this Agreement but will suffer and permit the execution of every such power as though no such law were in force; provided that this subsection (a) shall not be construed as a waiver of any rights of Navistar Financial under any applicable federal bankruptcy law.
(b) Navistar Financial, to the extent it may lawfully do so, on behalf of itself and all who may claim through or under it, including, without limitation, any and all subsequent creditors, vendees, assignees and lienors, waives and releases all rights to demand or to have any marshalling of the Collateral upon any sale, whether made under any power of sale herein granted or pursuant to judicial proceedings or upon any foreclosure or any enforcement of this Agreement and consents and agrees that all the Collateral may at any such sale be offered and sold as an entirety.
(c) Navistar Financial waives presentment, demand, protest and any notice of any kind (except notices explicitly required hereunder) in connection with this Agreement and any action taken by the Trustee with respect to the Collateral.
SNDA Xxxxxxxx agrees to request a subordination and non-disturbance agreement (an “SNDA”) from its current Mortgagees in the form attached hereto as Exhibit A (which is consistent with the form of SNDA attached to that certain Loan Agreement dated as of [***], as amended by that certain First Amendment to Loan Agreement and Other Loan Documents dated as of [***] (collectively, as the same may be amended, restated and/or replaced from time to time, the “Loan Agreement”), by and among Landlord, as mortgagor, the current Mortgagees and certain other parties thereto (the “Required Form of SNDA”)) with such changes requested by Xxxxxx, within thirty (30) days after the Execution Date. Landlord agrees to use reasonable efforts, at no cost to Landlord, to obtain the SNDA substantially in the form attached hereto as Exhibit A from such Mortgagees. Landlord will not obstruct Xxxxxx’s negotiations with the Mortgagees regarding Xxxxxx’s requested changes to such SNDA. Tenant acknowledges that, while Tenant may request changes to the Required Form of SNDA from the current Mortgagees, the current Mortgagees have no contractual or other obligation to deliver any SNDA other than the Required Form of SNDA, and there is no definite time period during which such Mortgagees are required to respond to any request for or to deliver a Required Form of SNDA under the Loan Agreement, and therefore, any refusal or failure to deliver or delay in delivering any SNDA to Tenant shall not constitute a default of Landlord under the Lease. For purposes of clarity, using “reasonable efforts” to obtain the Required Form of SNDA from the Mortgagees shall not require Landlord to assert any default of Mortgagees or otherwise take any enforcement actions under the Loan Agreement or any other loan documents affecting the Premises. Within [***] days after Xxxxxxxx’s written demand therefor, together with reasonable supporting documentation, Tenant shall reimburse any fees charged by the Mortgagees or their legal counsel pursuant to the Loan Agreement and any other third party out-of-pocket costs incurred by Landlord in connection with the request for, drafting or negotiation of and/or delivery of any SNDA requested by Tenant under this Amendment, regardless of whether the current Mortgagees agree to or actually execute and deliver such SNDA.
