Operating Lease Covenants. (a) Each Borrower represents, covenants and warrants that it is the express intent of Mortgage Borrower and Operating Lessee that the Operating Lease constitute a lease under applicable real property laws and laws governing bankruptcy, insolvency and creditors’ rights generally, and that the sole interest of the Operating Lessee in each applicable Individual Property is as tenant under the Operating Lease. In the event that it shall be determined that the Operating Lease is not a lease under applicable real property laws and laws governing bankruptcy, insolvency and creditors’ rights generally, and that the interest of the Operating Lessee in any applicable Individual Property is other than that of tenant under the Operating Lease, Borrower hereby covenants and agrees that it shall cause Mortgage Borrower to cause the Operating Lessee’s interest in such Individual Property, however characterized, to continue to be subject and subordinate to the lien of the Security Instruments on all the same terms and conditions as contained in the Operating Lease and the applicable Security Instrument. (b) Without Lender’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), Borrower shall not permit Mortgage Borrower or Mezzanine A Borrower to (a) surrender, terminate or cancel the Operating Lease, (b) reduce or consent to the reduction of the term of the Operating Lease, (c) increase or consent to the increase or decrease or consent to the decrease of the amount of any charges under the Operating Lease, (d) modify, change, supplement, alter or amend the Operating Lease or waive or release any of Mortgage Borrower’s rights and remedies under the Operating Lease; or (e) waive, excuse, condone or in any way release or discharge the Operating Lessee of or from Operating Lessee’s obligations, covenants and/or conditions under the Operating Lease, in each instance to the extent the same shall be reasonably likely to result in a Portfolio Material Adverse Effect. (c) Subject to the terms of the Mortgage Loan Documents and Mezzanine A Loan Documents, Borrower hereby assigns to Lender, as further security for the payment and performance of the Debt and observance of the terms, covenants and conditions of this Agreement and the other Loan Documents, all of the rights, privileges and prerogatives of each applicable Mortgage Borrower, as landlord and each applicable Operating Lessee, as tenant, as applicable, under each Operating Lease to cause Mortgage Borrower to surrender the leasehold estates created by such Operating Lease or to terminate, cancel, modify, change, supplement, alter or amend such Operating Lease to the extent the same shall be reasonably likely to result in a Portfolio Material Adverse Effect, subject only to rights granted to Borrower and Operating Lessee pursuant to this Section 4.24 hereof, and any such surrender of the leasehold estate created by such Operating Lease or termination, cancellation, modification, change, supplement, alteration or amendment of such Operating Lease not permitted pursuant to the foregoing terms of this Section 4.24 shall be void and of no force or effect. (d) If at any time Operating Lessee shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Operating Lessee as tenant thereunder and such default has resulted in (or is reasonably likely to result in) a Portfolio Material Adverse Effect, if such default is not remedied within the lesser of (i) ten (10) Business Days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Operating Lessee fail to remedy such default after receipt of notice thereof, shall give Lender a reasonable period of time to cure such default, then, without limiting the generality of the other provisions of this Section 4.24, and without waiving or releasing Operating Lessee from any of its obligations under this Agreement and the other Loan Documents, Lender shall have the right, subject to the terms of the Mortgage Loan Documents and Mezzanine A Loan Documents, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of each Operating Lease on the part of Operating Lessee, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Operating Lessee, to the end that the rights of Operating Lessee in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Operating Lessee thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Properties at any time and from time to time for the purpose of taking any such action. If Borrower shall deliver to Lender a copy of any notice of default sent by Mortgage Borrower to Operating Lessee, as tenant under any Operating Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor. (e) If at any time Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Mortgage Borrower, as landlord thereunder and such default has resulted in (or is reasonably likely to result in) a Portfolio Material Adverse Effect if such default is not remedied within the lesser of (i) ten (10) Business Days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Borrower fail to remedy such default after receipt of notice thereof, shall give Lender a reasonable period of time to cure such default, then, without limiting the generality of the other provisions of this Section 4.24, and without waiving or releasing Borrower from any of its obligations under this Agreement and the other Loan Documents, Lender shall have the right, subject to the terms of the Mortgage Loan Documents and Mezzanine A Loan Documents, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Operating Lease on the part of Mortgage Borrower, as landlord thereunder, to be performed or observed or to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Borrower thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. If Operating Lessee shall deliver to Lender a copy of any notice of default sent by Operating Lessee to Mortgage Borrower, as landlord under any Operating Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor. (f) In the event of the bankruptcy, reorganization or insolvency of Mortgage Borrower (including Operating Lessee), any attempt by Mortgage Borrower (including Operating Lessee) to surrender its leasehold estate, or any portion thereof, under any Operating Lease, or any attempt under such circumstances by Mortgage Borrower (including Operating Lessee) to terminate, cancel or acquiesce in the rejection of any Operating Lease without the consent of Lender shall be null and void. Subject to the rights of Mortgage Lender and Mezzanine A Lender under the Mortgage Loan Documents and the Mezzanine A Loan Documents, respectively, Borrower, Mezzanine A Borrower and Mortgage Borrower (including Operating Lessee) each hereby expressly releases, assigns, relinquishes and surrenders unto Lender all of its right, power and authority to terminate, cancel, acquiesce in the rejection of, modify, change, supplement, alter or amend each Operating Lease in any respect, either orally or in writing, in the event of the bankruptcy, reorganization or insolvency of Borrower (including Operating Lessee), and any attempt on the part of Borrower, Mezzanine A Borrower or Mortgage Borrower (including Operating Lessee) to exercise any such right without the consent of Lender shall be null and void.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Northstar Realty Finance Corp.), Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.)
Operating Lease Covenants. (a) Each Borrower represents, covenants and warrants that it is the express intent of Mortgage Borrower and Operating Lessee that the Operating Lease constitute a lease under applicable real property laws and laws governing bankruptcy, insolvency and creditors’ rights generally, and that the sole interest of the Operating Lessee in each applicable Individual Property is as tenant under the Operating Lease. In the event that it shall be determined that the Operating Lease is not a lease under applicable real property laws and laws governing bankruptcy, insolvency and creditors’ rights generally, and that the interest of the Operating Lessee in any applicable Individual Property is other than that of tenant under the Operating Lease, Borrower hereby covenants and agrees that it shall cause Mortgage Borrower to cause the Operating Lessee’s interest in such Individual Property, however characterized, to continue to be subject and subordinate to the lien of the Security Instruments on all the same terms and conditions as contained in the Operating Lease and the applicable Security Instrument.
(b) Without Lender’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), Borrower shall not permit Mortgage Borrower or Mezzanine A Borrower to (a) surrender, terminate or cancel the Operating Lease, (b) reduce or consent to the reduction of the term of the Operating Lease, (c) increase or consent to the increase or decrease or consent to the decrease of the amount of any charges under the Operating Lease, (d) modify, change, supplement, alter or amend the Operating Lease or waive or release any of Mortgage Borrower’s rights and remedies under the Operating Lease; or (e) waive, excuse, condone or in any way release or discharge the Operating Lessee of or from Operating Lessee’s obligations, covenants and/or conditions under the Operating Lease, in each instance to the extent the same shall be reasonably likely to result in a Portfolio Material Adverse Effect.
(c) Subject to the terms of the Mortgage Loan Documents and Mezzanine A Loan Documents, Borrower hereby assigns to Lender, as further security for the payment and performance of the Debt and observance of the terms, covenants and conditions of this Agreement and the other Loan Documents, all of the rights, privileges and prerogatives of each applicable Mortgage Borrower, as landlord and each applicable Operating Lessee, as tenant, as applicable, under each Operating Lease to cause Mortgage Borrower to surrender the leasehold estates created by such Operating Lease or to terminate, cancel, modify, change, supplement, alter or amend such Operating Lease to the extent the same shall be reasonably likely to result in a Portfolio Material Adverse Effect, subject only to the rights granted to Borrower and Operating Lessee pursuant to this Section 4.24 hereof, and any such surrender of the leasehold estate created by such Operating Lease or termination, cancellation, modification, change, supplement, alteration or amendment of such Operating Lease not permitted pursuant to the foregoing terms of this Section 4.24 shall be void and of no force or effect.
(d) If at any time Operating Lessee shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Operating Lessee as tenant thereunder and such default has resulted in (or is reasonably likely to result in) a Portfolio Material Adverse Effect, if such default is not remedied within the lesser of (i) ten (10) Business Days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Operating Lessee fail to remedy such default after receipt of notice thereof, shall give Lender a reasonable period of time to cure such default, then, without limiting the generality of the other provisions of this Section 4.24, and without waiving or releasing Operating Lessee from any of its obligations under this Agreement and the other Loan Documents, Lender shall have the right, subject to the terms of the Mortgage Loan Documents and Mezzanine A Loan Documents, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of each Operating Lease on the part of Operating Lessee, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Operating Lessee, to the end that the rights of Operating Lessee in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Operating Lessee thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Properties at any time and from time to time for the purpose of taking any such action. If Borrower shall deliver to Lender a copy of any notice of default sent by Mortgage Borrower to Operating Lessee, as tenant under any Operating Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement Security Instruments and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(e) If at any time Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Mortgage Borrower, as landlord thereunder and such default has resulted in (or is reasonably likely to result in) a Portfolio Material Adverse Effect if such default is not remedied within the lesser of (i) ten (10) Business Days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Borrower fail to remedy such default after receipt of notice thereof, shall give Lender a reasonable period of time to cure such default, then, without limiting the generality of the other provisions of this Section 4.24, and without waiving or releasing Borrower from any of its obligations under this Agreement and the other Loan Documents, Lender shall have the right, subject to the terms of the Mortgage Loan Documents and Mezzanine A Loan Documents, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Operating Lease on the part of Mortgage Borrower, as landlord thereunder, to be performed or observed or to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Borrower thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. If Operating Lessee shall deliver to Lender a copy of any notice of default sent by Operating Lessee to Mortgage Borrower, as landlord under any Operating Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement Security Instruments and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(f) In the event of the bankruptcy, reorganization or insolvency of Mortgage Borrower (including Operating Lessee), any attempt by Mortgage Borrower (including Operating Lessee) to surrender its leasehold estate, or any portion thereof, under any Operating Lease, or any attempt under such circumstances by Mortgage Borrower (including Operating Lessee) to terminate, cancel or acquiesce in the rejection of any Operating Lease without the consent of Lender shall be null and void. Subject to the rights of Mortgage Lender and Mezzanine A Lender under the Mortgage Loan Documents and the Mezzanine A Loan Documents, respectively, Borrower, Mezzanine A Borrower and Mortgage Borrower (including Operating Lessee) each hereby expressly releases, assigns, relinquishes and surrenders unto Lender all of its right, power and authority to terminate, cancel, acquiesce in the rejection of, modify, change, supplement, alter or amend each Operating Lease in any respect, either orally or in writing, in the event of the bankruptcy, reorganization or insolvency of Borrower (including Operating Lessee), and any attempt on the part of Borrower, Mezzanine A Borrower or Mortgage Borrower (including Operating Lessee) to exercise any such right without the consent of Lender shall be null and void. Each of Borrower (including Operating Lessee) hereby irrevocably appoints Lender as its true and lawful attorney-in-fact which power of attorney shall be coupled with an interest, for the purpose of exercising its rights pursuant to Section 365(h) of the Bankruptcy Code or any successor to such Section (i) to obtain for the benefit of Borrower (including Operating Lessee) or Lender a right to possession or statutory term of years derived from or incident to such Operating Lease, or (ii) to treat such Operating Lease as terminated.
(g) Notwithstanding the rejection of the Operating Lease by Borrower, as debtor in possession, or by a trustee for Borrower, pursuant to Section 365 of the Bankruptcy Code, neither the lien of the Security Instruments nor Lender’s rights with respect to any Operating Lease shall be affected or impaired by reason thereof. In the event that Operating Lessee shall remain in possession of any Property following a rejection of any Operating Lease by Borrower, as debtor in possession, or by a trustee for Borrower, Operating Lessee agrees that it shall not exercise any right of offset against the rent payable under such Operating Lease, pursuant to Section 365(h)(2) of the Bankruptcy Code, without the prior consent of Lender thereto.
(h) Lender shall have the right, but shall be under no obligation, to exercise on behalf of Borrower or Operating Lessee any renewal or extension options under each Operating Lease if Borrower and/or Operating Lessee shall fail to exercise any such options to the extent the same is reasonably likely to result in a Portfolio Material Adverse Effect. Operating Lessee hereby absolutely and unconditionally assigns and grants to Lender Operating Lessee’s irrevocable power of attorney, coupled with an interest, to exercise any renewal or extension options under each Operating Lease on behalf of and in the name of Operating Lessee following Operating Lessee's failure to do so to the extent the same is reasonably likely to result in a Portfolio Material Adverse Effect, and to take at any time any or all other actions on behalf of Operating Lessee required for the preservation of each Operating Lease. Borrower hereby absolutely and unconditionally assigns and grants to Lender Borrower’s irrevocable power of attorney, coupled with an interest, to exercise any renewal or extension options under each Operating Lease on behalf of and in the name of Borrower following Borrower's failure to do so, and to take at any time following the occurrence and during the continuance of an Event of Default any or all other actions on behalf of Borrower required for the preservation of each Operating Lease.
(i) In connection with any Secondary Market Transaction and otherwise no more often than one time per calendar year, Borrower shall within fifteen (15) days after request by Lender, execute, acknowledge and deliver a statement certifying as to the existence of any defaults under each Operating Lease and as to the rent payable thereunder.
Appears in 2 contracts
Samples: Loan Agreement (NorthStar Healthcare Income, Inc.), Loan Agreement (Northstar Realty Finance Corp.)
Operating Lease Covenants. (a) Each Borrower represents, covenants and warrants that it is the express intent of Mortgage Borrower and Operating Lessee that the Operating Lease constitute a lease under applicable real property laws and laws governing bankruptcy, insolvency and creditors’ rights generally, and that the sole interest of the Operating Lessee in each applicable Individual Property is as tenant under the Operating Lease. In the event that it shall be determined that the Operating Lease is not a lease under applicable real property laws and laws governing bankruptcy, insolvency and creditors’ rights generally, and that the interest of the Operating Lessee in any applicable Individual Property is other than that of tenant under the Operating Lease, Borrower hereby covenants and agrees that it shall cause Mortgage Borrower to cause the Operating Lessee’s interest in such Individual Property, however characterized, to continue to be subject and subordinate to the lien of the Security Instruments on all the same terms and conditions as contained in the Operating Lease and the applicable Security Instrument.
(b) Without Lender’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), Borrower shall not permit Mortgage Borrower or Mezzanine A Borrower to (a) surrender, terminate or cancel the Operating Lease, (b) reduce or consent to the reduction of the term of the Operating Lease, (c) increase or consent to the increase or decrease or consent to the decrease of the amount of any charges under the Operating Lease, (d) modify, change, supplement, alter or amend the Operating Lease or waive or release any of Mortgage Borrower’s rights and remedies under the Operating Lease; or (e) waive, excuse, condone or in any way release or discharge the Operating Lessee of or from Operating Lessee’s obligations, covenants and/or conditions under the Operating Lease, in each instance to the extent the same shall be reasonably likely to result in a Portfolio Material Adverse Effect.
(c) Subject to the terms of the Mortgage Loan Documents and Mezzanine A Loan Documents, Borrower hereby assigns to Lender, as further security for the payment and performance of the Debt and observance of the terms, covenants and conditions of this Agreement and the other Loan Documents, all of the rights, privileges and prerogatives of each applicable Mortgage Borrower, as landlord and each applicable Operating Lessee, as tenant, as applicable, under each Operating Lease to cause Mortgage Borrower to surrender the leasehold estates created by such Operating Lease or to terminate, cancel, modify, change, supplement, alter or amend such Operating Lease to the extent the same shall be reasonably likely to result in a Portfolio Material Adverse Effect, subject only to rights granted to Borrower and Operating Lessee pursuant to this Section 4.24 hereof, and any such surrender of the leasehold estate created by such Operating Lease or termination, cancellation, modification, change, supplement, alteration or amendment of such Operating Lease not permitted pursuant to the foregoing terms of this Section 4.24 shall be void and of no force or effect.
(d) If at any time Operating Lessee shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Operating Lessee as tenant thereunder and such default has resulted in (or is reasonably likely to result in) a Portfolio Material Adverse Effect, if such default is not remedied within the lesser of (i) ten (10) Business Days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Operating Lessee fail to remedy such default after receipt of notice thereof, shall give Lender a reasonable period of time to cure such default, then, without limiting the generality of the other provisions of this Section 4.24, and without waiving or releasing Operating Lessee from any of its obligations under this Agreement and the other Loan Documents, Lender shall have the right, subject to the terms of the Mortgage Loan Documents and Mezzanine A Loan Documents, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of each Operating Lease on the part of Operating Lessee, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Operating Lessee, to the end that the rights of Operating Lessee in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Operating Lessee thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Properties at any time and from time to time for the purpose of taking any such action. If Borrower shall deliver to Lender a copy of any notice of default sent by Mortgage Borrower to Operating Lessee, as tenant under any Operating Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(e) If at any time Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Mortgage Borrower, as landlord thereunder and such default has resulted in (or is reasonably likely to result in) a Portfolio Material Adverse Effect if such default is not remedied within the lesser of (i) ten (10) Business Days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Borrower fail to remedy such default after receipt of notice thereof, shall give Lender a reasonable period of time to cure such default, then, without limiting the generality of the other provisions of this Section 4.24, and without waiving or releasing Borrower from any of its obligations under this Agreement and the other Loan Documents, Lender shall have the right, subject to the terms of the Mortgage Loan Documents and Mezzanine A Loan Documents, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Operating Lease on the part of Mortgage Borrower, as landlord thereunder, to be performed or observed or to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Borrower thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. If Operating Lessee shall deliver to Lender a copy of any notice of default sent by Operating Lessee to Mortgage Borrower, as landlord under any Operating Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(f) In the event of the bankruptcy, reorganization or insolvency of Mortgage Borrower (including Operating Lessee), any attempt by Mortgage Borrower (including Operating Lessee) to surrender its leasehold estate, or any portion thereof, under any Operating Lease, or any attempt under such circumstances by Mortgage Borrower (including Operating Lessee) to terminate, cancel or acquiesce in the rejection of any Operating Lease without the consent of Lender shall be null and void. Subject to the rights of Mortgage Lender and Mezzanine A Lender under the Mortgage Loan Documents and the Mezzanine A Loan Documents, respectively, Borrower, Mezzanine A Borrower and Mortgage Borrower (including Operating Lessee) each hereby expressly releases, assigns, relinquishes and surrenders unto Lender all of its right, power and authority to terminate, cancel, acquiesce in the rejection of, modify, change, supplement, alter or amend each Operating Lease in any respect, either orally or in writing, in the event of the bankruptcy, reorganization or insolvency of Borrower (including Operating Lessee), and any attempt on the part of Borrower, Mezzanine A Borrower or Mortgage Borrower (including Operating Lessee) to exercise any such right without the consent of Lender shall be null and void.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Northstar Realty Finance Corp.), Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.)
Operating Lease Covenants. (a) Each Borrower represents, covenants and warrants that it is the express intent of Mortgage Borrower and Operating Lessee that the Operating Lease constitute a lease under applicable real property laws and laws governing bankruptcy, insolvency and creditors’ rights generally, and that the sole interest of the Operating Lessee in each applicable Individual Property is as tenant under the Operating Lease. In the event that it shall be determined that the Operating Lease is not a lease under applicable real property laws and laws governing bankruptcy, insolvency and creditors’ rights generally, and that the interest of the Operating Lessee in any applicable Individual Property is other than that of tenant under the Operating Lease, Borrower hereby covenants and agrees that it shall cause Mortgage Borrower to cause the Operating Lessee’s interest in such Individual Property, however characterized, to continue to be subject and subordinate to the lien of the Security Instruments on all the same terms and conditions as contained in the Operating Lease and the applicable Security Instrument.
(b) Without Lender’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), Borrower shall not permit Mortgage Borrower, Mezzanine A Borrower or Mezzanine A B Borrower to (a) surrender, terminate or cancel the Operating Lease, (b) reduce or consent to the reduction of the term of the Operating Lease, (c) increase or consent to the increase or decrease or consent to the decrease of the amount of any charges under the Operating Lease, (d) modify, change, supplement, alter or amend the Operating Lease or waive or release any of Mortgage Borrower’s rights and remedies under the Operating Lease; or (e) waive, excuse, condone or in any way release or discharge the Operating Lessee of or from Operating Lessee’s obligations, covenants and/or conditions under the Operating Lease, in each instance to the extent the same shall be reasonably likely to result in a Portfolio Material Adverse Effect.
(c) Subject to the terms of the Mortgage Loan Documents and Documents, the Mezzanine A Loan Documents or the Mezzanine B Loan Documents, Borrower hereby assigns to Lender, as further security for the payment and performance of the Debt and observance of the terms, covenants and conditions of this Agreement and the other Loan Documents, all of the rights, privileges and prerogatives of each applicable Mortgage Borrower, as landlord and each applicable Operating Lessee, as tenant, as applicable, under each Operating Lease to cause Mortgage Borrower to surrender the leasehold estates created by such Operating Lease or to terminate, cancel, modify, change, supplement, alter or amend such Operating Lease to the extent the same shall be reasonably likely to result in a Portfolio Material Adverse Effect, subject only to rights granted to Borrower and Operating Lessee pursuant to this Section 4.24 hereof, and any such surrender of the leasehold estate created by such Operating Lease or termination, cancellation, modification, change, supplement, alteration or amendment of such Operating Lease not permitted pursuant to the foregoing terms of this Section 4.24 shall be void and of no force or effect.
(d) If at any time Operating Lessee shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Operating Lessee as tenant thereunder and such default has resulted in (or is reasonably likely to result in) a Portfolio Material Adverse Effect, if such default is not remedied within the lesser of (i) ten (10) Business Days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Operating Lessee fail to remedy such default after receipt of notice thereof, shall give Lender a reasonable period of time to cure such default, then, without limiting the generality of the other provisions of this Section 4.24, and without waiving or releasing Operating Lessee from any of its obligations under this Agreement and the other Loan Documents, Lender shall have the right, subject to the terms of the Mortgage Loan Documents, the Mezzanine A Loan Documents and the Mezzanine A B Loan Documents, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of each Operating Lease on the part of Operating Lessee, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Operating Lessee, to the end that the rights of Operating Lessee in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Operating Lessee thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Properties at any time and from time to time for the purpose of taking any such action. If Borrower shall deliver to Lender a copy of any notice of default sent by Mortgage Borrower to Operating Lessee, as tenant under any Operating Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(e) If at any time Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Mortgage Borrower, as landlord thereunder and such default has resulted in (or is reasonably likely to result in) a Portfolio Material Adverse Effect if such default is not remedied within the lesser of (i) ten (10) Business Days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Borrower fail to remedy such default after receipt of notice thereof, shall give Lender a reasonable period of time to cure such default, then, without limiting the generality of the other provisions of this Section 4.24, and without waiving or releasing Borrower from any of its obligations under this Agreement and the other Loan Documents, Lender shall have the right, subject to the terms of the Mortgage Loan Documents, the Mezzanine A Loan Documents and the Mezzanine A B Loan Documents, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Operating Lease on the part of Mortgage Borrower, as landlord thereunder, to be performed or observed or to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Borrower thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. If Operating Lessee shall deliver to Lender a copy of any notice of default sent by Operating Lessee to Mortgage Borrower, as landlord under any Operating Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(f) In the event of the bankruptcy, reorganization or insolvency of Mortgage Borrower (including Operating Lessee), any attempt by Mortgage Borrower (including Operating Lessee) to surrender its leasehold estate, or any portion thereof, under any Operating Lease, or any attempt under such circumstances by Mortgage Borrower (including Operating Lessee) to terminate, cancel or acquiesce in the rejection of any Operating Lease without the consent of Lender shall be null and void. Subject to the rights of Mortgage Lender, Mezzanine A Lender and Mezzanine A B Lender under the Mortgage Loan Documents, Mezzanine A Loan Documents and the Mezzanine A B Loan Documents, respectively, Borrower, Mezzanine A Borrower, Mezzanine B Borrower and Mortgage Borrower (including Operating Lessee) each hereby expressly releases, assigns, relinquishes and surrenders unto Lender all of its right, power and authority to terminate, cancel, acquiesce in the rejection of, modify, change, supplement, alter or amend each Operating Lease in any respect, either orally or in writing, in the event of the bankruptcy, reorganization or insolvency of Borrower (including Operating Lessee), and any attempt on the part of Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower (including Operating Lessee) to exercise any such right without the consent of Lender shall be null and void.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Northstar Realty Finance Corp.), Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.)
Operating Lease Covenants. (a) Each Borrower represents, covenants and warrants that it is the express intent of Mortgage Borrower Fee Owner and Operating Lessee that the Operating Lease constitute a lease under applicable real property laws and laws governing bankruptcy, insolvency and creditors’ rights generally, and that the sole interest of the Operating Lessee in each applicable Individual the Property is as tenant under the Operating Lease. In the event that it shall be determined that the Operating Lease is not a lease under applicable real property laws and laws governing bankruptcy, insolvency and creditors’ rights generally, and that the interest of the Operating Lessee in any applicable Individual the Property is other than that of tenant under the an Operating Lease, Borrower hereby covenants and agrees that it shall cause Mortgage Borrower to cause the Operating Lessee’s interest in such Individual the Property, however characterized, to continue to be subject and subordinate to the lien of the Security Instruments on all the same terms and conditions as contained in the Operating Lease and the applicable Security Instrument.
(b) Mortgage. Without Lender’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), Borrower shall not permit Mortgage Borrower or Mezzanine A Borrower to (a) surrender, terminate or cancel the Operating Lease, (b) reduce or consent to the reduction of the term of the Operating Lease, (c) increase or consent to the increase or decrease or consent to the decrease of the amount of any charges under the Operating Lease, (d) modify, change, supplement, alter or amend the Operating Lease or waive or release any of Mortgage Borrower’s rights and remedies under the Operating Lease; or (e) waive, excuse, condone or in any way release or discharge the Operating Lessee of or from Operating Lessee’s material obligations, covenants and/or conditions under the Operating Lease. Borrower shall, in each instance from time to the extent the same shall be reasonably likely time upon written request from Xxxxxx, deliver to result in a Portfolio Material Adverse Effect.
(c) Subject Lender such certificates of estoppel with respect to compliance by Borrower with the terms of the Mortgage Loan Documents Operating Lease as may be requested by Xxxxxx (which request shall not be made more than once in any twelve (12) month period in any calendar year prior to the occurrence and Mezzanine A Loan Documents, continuance of an Event of Default). Borrower hereby assigns to Lender, as further security for the payment and performance of the Debt and observance of the terms, covenants and conditions of this Agreement and the other Loan Documents, Documents all of the rights, privileges and prerogatives of each applicable Mortgage BorrowerFee Owner, as landlord and each applicable Operating Lessee, as tenant, as applicable, under each the Operating Lease to cause Mortgage Borrower following the occurrence and during the continuance of an Event of Default, to surrender the leasehold estates estate created by such the Operating Lease or to terminate, cancel, modify, change, supplement, alter or amend such Operating Lease to the extent the same shall be reasonably likely to result in a Portfolio Material Adverse Effect, subject only to rights granted to Borrower and Operating Lessee pursuant to this Section 4.24 hereofLease, and any such surrender of the leasehold estate created by such the Operating Lease or termination, cancellation, modification, change, supplement, alteration or amendment of such the Operating Lease not permitted pursuant to the foregoing terms of this Section 4.24 shall be void and of no force or effect.
(d) If at any time Operating Lessee shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Operating Lessee as tenant thereunder and such default has resulted in (or is reasonably likely to result in) a Portfolio Material Adverse Effect, if such default is not remedied within the lesser of (i) ten (10) Business Days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Operating Lessee fail to remedy such default after receipt of notice thereof, shall give Lender a reasonable period of time to cure such default, then, without limiting the generality of the other provisions of this Section 4.24, and without waiving or releasing Operating Lessee from any of its obligations under this Agreement and the other Loan Documents, Lender shall have the right, subject to the terms of the Mortgage Loan Documents and Mezzanine A Loan Documents, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of each Operating Lease on the part of Operating Lessee, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Operating Lessee, to the end that the rights of Operating Lessee in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Operating Lessee thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Properties at any time and from time to time for the purpose of taking any such action. If Borrower shall deliver to Lender a copy of any notice of default sent by Mortgage Borrower to Operating Lessee, as tenant under any Operating Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(e) If at any time Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Mortgage Borrower, as landlord thereunder and such default has resulted in (or is reasonably likely to result in) a Portfolio Material Adverse Effect if such default is not remedied within the lesser of (i) ten (10) Business Days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Borrower fail to remedy such default after receipt of notice thereof, shall give Lender a reasonable period of time to cure such default, then, without limiting the generality of the other provisions of this Section 4.24, and without waiving or releasing Borrower from any of its obligations under this Agreement and the other Loan Documents, Lender shall have the right, subject to the terms of the Mortgage Loan Documents and Mezzanine A Loan Documents, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Operating Lease on the part of Mortgage Borrower, as landlord thereunder, to be performed or observed or to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Borrower thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. If Operating Lessee shall deliver to Lender a copy of any notice of default sent by Operating Lessee to Mortgage Borrower, as landlord under any Operating Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(f) In the event of the bankruptcy, reorganization or insolvency of Mortgage Borrower (including Operating Lessee), any attempt by Mortgage Borrower (including Operating Lessee) to surrender its leasehold estate, or any portion thereof, under any Operating Lease, or any attempt under such circumstances by Mortgage Borrower (including Operating Lessee) to terminate, cancel or acquiesce in the rejection of any Operating Lease without the consent of Lender shall be null and void. Subject to the rights of Mortgage Lender and Mezzanine A Lender under the Mortgage Loan Documents and the Mezzanine A Loan Documents, respectively, Borrower, Mezzanine A Borrower and Mortgage Borrower (including Operating Lessee) each hereby expressly releases, assigns, relinquishes and surrenders unto Lender all of its right, power and authority to terminate, cancel, acquiesce in the rejection of, modify, change, supplement, alter or amend each Operating Lease in any respect, either orally or in writing, in the event of the bankruptcy, reorganization or insolvency of Borrower (including Operating Lessee), and any attempt on the part of Borrower, Mezzanine A Borrower or Mortgage Borrower (including Operating Lessee) to exercise any such right without the consent of Lender shall be null and void.
Appears in 1 contract
Samples: Consent, Amendment and Assumption Agreement (Lodging Fund REIT III, Inc.)
Operating Lease Covenants. (a) Each Borrower represents, covenants and warrants that it is the express intent of Mortgage Borrower SPE Owner and Operating TRS Lessee that the Operating Lease constitute a lease under applicable real property laws and laws governing bankruptcy, insolvency and creditors’ rights generally, and that the sole interest of the Operating TRS Lessee in each applicable Individual the Property is as tenant under the Operating Lease. In the event that it shall is will be determined that the Operating Lease is not a lease under applicable real property laws and laws governing bankruptcy, insolvency and creditors’ rights generally, and that the interest of the Operating TRS Lessee in any applicable Individual the Property is other than that of tenant under the Operating Lease, then Borrower hereby covenants and agrees that it shall will cause Mortgage Borrower to cause the Operating TRS Lessee’s interest in such Individual the Property, however characterizedcharacterized , to continue to be subject and subordinate to the lien of the Security Instruments Instrument on all of the same terms and conditions as contained in the Operating Lease. The Operating Lease and any and all rights and interests of TRS Lessee thereunder and to the applicable Property are and shall be in all respects subject and subordinate to the lien and security interests created under the Security Instrument.
(b) Instrument and other Loan Documents, and to all renewals, extensions, increases, supplements, amendments, modifications and replacements of any of the foregoing and any advances made thereunder. Without Lender’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed)consent, Borrower shall will not permit Mortgage Borrower or Mezzanine A Borrower to (ai) surrender, terminate or cancel the Operating Lease, (bii) reduce or consent to the reduction of the term of the Operating Lease, (ciii) increase or consent to the increase or decrease or consent to the decrease of the amount of any charges under the Operating Lease, (div) modify, change, supplement, alter or amend the Operating Lease or waive or release any of Mortgage BorrowerSPE Owner’s rights and remedies under the Operating Lease; , or (ev) waive, excuse, condone or in any way release or discharge the Operating TRS Lessee of or from Operating TRS Lessee’s obligations, covenants and/or conditions under the Operating Lease. LOAN AGREEMENT, in each instance PAGE 28 Borrower will, from time to the extent the same shall be reasonably likely time, deliver to result in a Portfolio Material Adverse Effect.
(c) Subject Lender such certificates of estoppel with respect to compliance by Borrower with the terms of the Mortgage Loan Documents and Mezzanine A Loan Documents, Borrower hereby assigns to Lender, as further security for the payment and performance of the Debt and observance of the terms, covenants and conditions of this Agreement and the other Loan Documents, all of the rights, privileges and prerogatives of each applicable Mortgage Borrower, as landlord and each applicable Operating Lessee, as tenant, as applicable, under each Operating Lease to cause Mortgage Borrower to surrender the leasehold estates created by such Operating Lease or to terminate, cancel, modify, change, supplement, alter or amend such Operating Lease to the extent the same shall be reasonably likely to result in a Portfolio Material Adverse Effect, subject only to rights granted to Borrower and Operating Lessee pursuant to this Section 4.24 hereof, and any such surrender of the leasehold estate created by such Operating Lease or termination, cancellation, modification, change, supplement, alteration or amendment of such Operating Lease not permitted pursuant to the foregoing terms of this Section 4.24 shall be void and of no force or effect.
(d) If at any time Operating Lessee shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Operating Lessee as tenant thereunder and such default has resulted in (or is reasonably likely to result in) a Portfolio Material Adverse Effect, if such default is not remedied within the lesser of (i) ten (10) Business Days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Operating Lessee fail to remedy such default after receipt of notice thereof, shall give Lender a reasonable period of time to cure such default, then, without limiting the generality of the other provisions of this Section 4.24, and without waiving or releasing Operating Lessee from any of its obligations under this Agreement and the other Loan Documents, Lender shall have the right, subject to the terms of the Mortgage Loan Documents and Mezzanine A Loan Documents, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of each Operating Lease on the part of Operating Lessee, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Operating Lessee, to the end that the rights of Operating Lessee in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Operating Lessee thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Properties at any time and from time to time for the purpose of taking any such action. If Borrower shall deliver to Lender a copy of any notice of default sent by Mortgage Borrower to Operating Lessee, as tenant under any Operating Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken requested by Lender, in good faith, in reliance thereon. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(e) If at any time Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Mortgage Borrower, as landlord thereunder and such default has resulted in (or is reasonably likely to result in) a Portfolio Material Adverse Effect if such default is not remedied within the lesser of (i) ten (10) Business Days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Borrower fail to remedy such default after receipt of notice thereof, shall give Lender a reasonable period of time to cure such default, then, without limiting the generality of the other provisions of this Section 4.24, and without waiving or releasing Borrower from any of its obligations under this Agreement and the other Loan Documents, Lender shall have the right, subject to the terms of the Mortgage Loan Documents and Mezzanine A Loan Documents, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Operating Lease on the part of Mortgage Borrower, as landlord thereunder, to be performed or observed or to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Borrower thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. If Operating Lessee shall deliver to Lender a copy of any notice of default sent by Operating Lessee to Mortgage Borrower, as landlord under any Operating Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(f) In the event of the bankruptcy, reorganization or insolvency of Mortgage Borrower (including Operating Lessee), any attempt by Mortgage Borrower (including Operating Lessee) to surrender its leasehold estate, or any portion thereof, under any Operating Lease, or any attempt under such circumstances by Mortgage Borrower (including Operating Lessee) to terminate, cancel or acquiesce in the rejection of any Operating Lease without the consent of Lender shall be null and void. Subject to the rights of Mortgage Lender and Mezzanine A Lender under the Mortgage Loan Documents and the Mezzanine A Loan Documents, respectively, Borrower, Mezzanine A Borrower and Mortgage Borrower (including Operating Lessee) each hereby expressly releases, assigns, relinquishes and surrenders unto Lender all of its right, power and authority to terminate, cancel, acquiesce in the rejection of, modify, change, supplement, alter or amend each Operating Lease in any respect, either orally or in writing, in the event of the bankruptcy, reorganization or insolvency of Borrower (including Operating Lessee), and any attempt on the part of Borrower, Mezzanine A Borrower or Mortgage Borrower (including Operating Lessee) to exercise any such right without the consent of Lender shall be null and void.
Appears in 1 contract
Operating Lease Covenants. (a) Each Borrower represents, covenants and warrants that it is the express intent of Mortgage Borrower SPE Owner and Operating TRS Lessee that the Operating Lease constitute a lease under applicable real property laws and laws governing bankruptcy, insolvency and creditors’ rights generally, and that the sole interest of the Operating TRS Lessee in each applicable Individual the Property is as tenant under the Operating Lease. In the event that it shall is will be determined that the Operating Lease is not a lease under applicable real property laws and laws governing bankruptcy, insolvency and creditors’ rights generally, and that the interest of the Operating TRS Lessee in any applicable Individual the Property is other than that of tenant under the Operating Lease, then Borrower hereby covenants and agrees that it shall will cause Mortgage Borrower to cause the Operating TRS Lessee’s interest in such Individual the Property, however characterizedcharacterized , to continue to be subject and subordinate to the lien of the Security Instruments Instrument on all of the same terms and conditions as contained in the Operating Lease. The Operating Lease and any and all rights and interests of TRS Lessee thereunder and to the applicable Property are and shall be in all respects subject and subordinate to the lien and security interests created under the Security Instrument.
(b) Instrument and other Loan Documents, and to all renewals, extensions, increases, supplements, amendments, modifications and replacements of any of the foregoing and any advances made thereunder. Without Lender’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed)consent, Borrower shall will not permit Mortgage Borrower or Mezzanine A Borrower to (ai) surrender, terminate or cancel the Operating Lease, (bii) reduce or consent to the reduction of the term of the Operating Lease, (ciii) increase or consent to the increase or decrease or consent to the decrease of the amount of any charges under the Operating Lease, (div) modify, change, supplement, alter or amend the Operating Lease or waive or release any of Mortgage BorrowerSPE Owner’s rights and remedies under the Operating Lease; , or (ev) waive, excuse, condone or in any way release or discharge the Operating TRS Lessee of or from Operating TRS Lessee’s obligations, covenants and/or conditions under the Operating Lease. Borrower will, in each instance from time to the extent the same shall be reasonably likely time, deliver to result in a Portfolio Material Adverse Effect.
(c) Subject Lender such certificates of estoppel with respect to compliance by Borrower with the terms of the Mortgage Loan Documents and Mezzanine A Loan Documents, Borrower hereby assigns to Lender, as further security for the payment and performance of the Debt and observance of the terms, covenants and conditions of this Agreement and the other Loan Documents, all of the rights, privileges and prerogatives of each applicable Mortgage Borrower, as landlord and each applicable Operating Lessee, as tenant, as applicable, under each Operating Lease to cause Mortgage Borrower to surrender the leasehold estates created by such Operating Lease or to terminate, cancel, modify, change, supplement, alter or amend such Operating Lease to the extent the same shall be reasonably likely to result in a Portfolio Material Adverse Effect, subject only to rights granted to Borrower and Operating Lessee pursuant to this Section 4.24 hereof, and any such surrender of the leasehold estate created by such Operating Lease or termination, cancellation, modification, change, supplement, alteration or amendment of such Operating Lease not permitted pursuant to the foregoing terms of this Section 4.24 shall be void and of no force or effect.
(d) If at any time Operating Lessee shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Operating Lessee as tenant thereunder and such default has resulted in (or is reasonably likely to result in) a Portfolio Material Adverse Effect, if such default is not remedied within the lesser of (i) ten (10) Business Days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Operating Lessee fail to remedy such default after receipt of notice thereof, shall give Lender a reasonable period of time to cure such default, then, without limiting the generality of the other provisions of this Section 4.24, and without waiving or releasing Operating Lessee from any of its obligations under this Agreement and the other Loan Documents, Lender shall have the right, subject to the terms of the Mortgage Loan Documents and Mezzanine A Loan Documents, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of each Operating Lease on the part of Operating Lessee, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Operating Lessee, to the end that the rights of Operating Lessee in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Operating Lessee thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Properties at any time and from time to time for the purpose of taking any such action. If Borrower shall deliver to Lender a copy of any notice of default sent by Mortgage Borrower to Operating Lessee, as tenant under any Operating Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken requested by Lender, in good faith, in reliance thereon. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(e) If at any time Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Mortgage Borrower, as landlord thereunder and such default has resulted in (or is reasonably likely to result in) a Portfolio Material Adverse Effect if such default is not remedied within the lesser of (i) ten (10) Business Days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Borrower fail to remedy such default after receipt of notice thereof, shall give Lender a reasonable period of time to cure such default, then, without limiting the generality of the other provisions of this Section 4.24, and without waiving or releasing Borrower from any of its obligations under this Agreement and the other Loan Documents, Lender shall have the right, subject to the terms of the Mortgage Loan Documents and Mezzanine A Loan Documents, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Operating Lease on the part of Mortgage Borrower, as landlord thereunder, to be performed or observed or to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Borrower thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. If Operating Lessee shall deliver to Lender a copy of any notice of default sent by Operating Lessee to Mortgage Borrower, as landlord under any Operating Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(f) In the event of the bankruptcy, reorganization or insolvency of Mortgage Borrower (including Operating Lessee), any attempt by Mortgage Borrower (including Operating Lessee) to surrender its leasehold estate, or any portion thereof, under any Operating Lease, or any attempt under such circumstances by Mortgage Borrower (including Operating Lessee) to terminate, cancel or acquiesce in the rejection of any Operating Lease without the consent of Lender shall be null and void. Subject to the rights of Mortgage Lender and Mezzanine A Lender under the Mortgage Loan Documents and the Mezzanine A Loan Documents, respectively, Borrower, Mezzanine A Borrower and Mortgage Borrower (including Operating Lessee) each hereby expressly releases, assigns, relinquishes and surrenders unto Lender all of its right, power and authority to terminate, cancel, acquiesce in the rejection of, modify, change, supplement, alter or amend each Operating Lease in any respect, either orally or in writing, in the event of the bankruptcy, reorganization or insolvency of Borrower (including Operating Lessee), and any attempt on the part of Borrower, Mezzanine A Borrower or Mortgage Borrower (including Operating Lessee) to exercise any such right without the consent of Lender shall be null and void.
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Operating Lease Covenants. (a) Each LOAN AGREEMENT, PAGE 28 Borrower represents, covenants and warrants that it is the express intent of Mortgage Borrower SPE Owner and Operating TRS Lessee that the Operating Lease constitute a lease under applicable real property laws and laws governing bankruptcy, insolvency and creditors’ rights generally, and that the sole interest of the Operating TRS Lessee in each applicable Individual the Property is as tenant under the Operating Lease. In the event that it shall is will be determined that the Operating Lease is not a lease under applicable real property laws and laws governing bankruptcy, insolvency and creditors’ rights generally, and that the interest of the Operating TRS Lessee in any applicable Individual the Property is other than that of tenant under the Operating Lease, then Borrower hereby covenants and agrees that it shall will cause Mortgage Borrower to cause the Operating TRS Lessee’s interest in such Individual the Property, however characterizedcharacterized , to continue to be subject and subordinate to the lien of the Security Instruments Instrument on all of the same terms and conditions as contained in the Operating Lease. The Operating Lease and any and all rights and interests of TRS Lessee thereunder and to the applicable Property are and shall be in all respects subject and subordinate to the lien and security interests created under the Security Instrument.
(b) Instrument and other Loan Documents, and to all renewals, extensions, increases, supplements, amendments, modifications and replacements of any of the foregoing and any advances made thereunder. Without Lender’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed)consent, Borrower shall will not permit Mortgage Borrower or Mezzanine A Borrower to (ai) surrender, terminate or cancel the Operating Lease, (bii) reduce or consent to the reduction of the term of the Operating Lease, (ciii) increase or consent to the increase or decrease or consent to the decrease of the amount of any charges under the Operating Lease, (div) modify, change, supplement, alter or amend the Operating Lease or waive or release any of Mortgage BorrowerSPE Owner’s rights and remedies under the Operating Lease; , or (ev) waive, excuse, condone or in any way release or discharge the Operating TRS Lessee of or from Operating TRS Lessee’s obligations, covenants and/or conditions under the Operating Lease. Borrower will, in each instance from time to the extent the same shall be reasonably likely time, deliver to result in a Portfolio Material Adverse Effect.
(c) Subject Lender such certificates of estoppel with respect to compliance by Borrower with the terms of the Mortgage Loan Documents and Mezzanine A Loan Documents, Borrower hereby assigns to Lender, as further security for the payment and performance of the Debt and observance of the terms, covenants and conditions of this Agreement and the other Loan Documents, all of the rights, privileges and prerogatives of each applicable Mortgage Borrower, as landlord and each applicable Operating Lessee, as tenant, as applicable, under each Operating Lease to cause Mortgage Borrower to surrender the leasehold estates created by such Operating Lease or to terminate, cancel, modify, change, supplement, alter or amend such Operating Lease to the extent the same shall be reasonably likely to result in a Portfolio Material Adverse Effect, subject only to rights granted to Borrower and Operating Lessee pursuant to this Section 4.24 hereof, and any such surrender of the leasehold estate created by such Operating Lease or termination, cancellation, modification, change, supplement, alteration or amendment of such Operating Lease not permitted pursuant to the foregoing terms of this Section 4.24 shall be void and of no force or effect.
(d) If at any time Operating Lessee shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Operating Lessee as tenant thereunder and such default has resulted in (or is reasonably likely to result in) a Portfolio Material Adverse Effect, if such default is not remedied within the lesser of (i) ten (10) Business Days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Operating Lessee fail to remedy such default after receipt of notice thereof, shall give Lender a reasonable period of time to cure such default, then, without limiting the generality of the other provisions of this Section 4.24, and without waiving or releasing Operating Lessee from any of its obligations under this Agreement and the other Loan Documents, Lender shall have the right, subject to the terms of the Mortgage Loan Documents and Mezzanine A Loan Documents, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of each Operating Lease on the part of Operating Lessee, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Operating Lessee, to the end that the rights of Operating Lessee in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Operating Lessee thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Properties at any time and from time to time for the purpose of taking any such action. If Borrower shall deliver to Lender a copy of any notice of default sent by Mortgage Borrower to Operating Lessee, as tenant under any Operating Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken requested by Lender, in good faith, in reliance thereon. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(e) If at any time Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of any Operating Lease to be performed or observed by Mortgage Borrower, as landlord thereunder and such default has resulted in (or is reasonably likely to result in) a Portfolio Material Adverse Effect if such default is not remedied within the lesser of (i) ten (10) Business Days of receipt of notice by Borrower from Lender and (ii) such period of time as, should Borrower fail to remedy such default after receipt of notice thereof, shall give Lender a reasonable period of time to cure such default, then, without limiting the generality of the other provisions of this Section 4.24, and without waiving or releasing Borrower from any of its obligations under this Agreement and the other Loan Documents, Lender shall have the right, subject to the terms of the Mortgage Loan Documents and Mezzanine A Loan Documents, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Operating Lease on the part of Mortgage Borrower, as landlord thereunder, to be performed or observed or to be promptly performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under such Operating Lease shall be kept unimpaired and free from default. If Lender shall make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Borrower thereof. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. If Operating Lessee shall deliver to Lender a copy of any notice of default sent by Operating Lessee to Mortgage Borrower, as landlord under any Operating Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. Any sums expended by Lender pursuant to this paragraph shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, shall be deemed to constitute a portion of the Debt, shall be secured by the lien of the Pledge Agreement and the other Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
(f) In the event of the bankruptcy, reorganization or insolvency of Mortgage Borrower (including Operating Lessee), any attempt by Mortgage Borrower (including Operating Lessee) to surrender its leasehold estate, or any portion thereof, under any Operating Lease, or any attempt under such circumstances by Mortgage Borrower (including Operating Lessee) to terminate, cancel or acquiesce in the rejection of any Operating Lease without the consent of Lender shall be null and void. Subject to the rights of Mortgage Lender and Mezzanine A Lender under the Mortgage Loan Documents and the Mezzanine A Loan Documents, respectively, Borrower, Mezzanine A Borrower and Mortgage Borrower (including Operating Lessee) each hereby expressly releases, assigns, relinquishes and surrenders unto Lender all of its right, power and authority to terminate, cancel, acquiesce in the rejection of, modify, change, supplement, alter or amend each Operating Lease in any respect, either orally or in writing, in the event of the bankruptcy, reorganization or insolvency of Borrower (including Operating Lessee), and any attempt on the part of Borrower, Mezzanine A Borrower or Mortgage Borrower (including Operating Lessee) to exercise any such right without the consent of Lender shall be null and void.
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