The Ground Lease. (a) With respect to each Ground Lease, Pledgor shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of each Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of each Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord under the applicable Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Pledgor’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Pledgor shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any Ground Lease or modify, change, supplement, alter or amend any Ground Lease, either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise. Pledgor shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code. If Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of any Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor shall permit Lender to have the right 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 Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Pledgor, to the end that the rights of Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any notice of default under such Ground 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. Pledgor shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised.
Appears in 7 contracts
Samples: Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.), Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.), Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
The Ground Lease. (a) With respect to each Ground Lease, Pledgor ,
(a) Borrower shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of each Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of each Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord Fee Owner under the applicable Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord Fee Owner under the applicable Ground Lease of which Borrower is aware or of has received any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of PledgorBorrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor Borrower in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Pledgor Borrower shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any Ground Lease or modify, change, supplement, alter or amend any Ground Lease, either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise. Pledgor Borrower shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code. Borrower hereby assigns to Lender all of its rights under Section 363 of the Bankruptcy Code to consent or object to any sale or transfer of such Fee Estate free and clear of the Ground Lease, and grants to Lender the right to object to any such sale or transfer on behalf of Borrower, and Borrower shall not contest any pleadings, motions documents or other actions filed or taken on Lender’s or Borrower’s behalf by Lender in the event that any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, attempts to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise.
(b) If Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of any Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor Lender shall permit Lender to have the right right, to the extent Lender has received notice of, or has otherwise become aware of any such default, 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 Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of PledgorBorrower, to the end that the rights of Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any notice of default under such Ground 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. Pledgor Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease upon demand by Lender made at any time within one (1) year prior to or within the last day upon period in which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
(c) Notwithstanding anything contained in any Ground Lease to the contrary, Borrower shall not further sublet any portion of the related Individual Property (other than as permitted pursuant to Section 5.1.17 hereof) without prior written consent of Lender. Each sublease that is a Major Lease hereafter made shall provide that, (i) in the event of the termination of the Ground Lease, the sublease shall not terminate or be terminable by the lessee thereunder; (ii) in the event of any action for the foreclosure of the Security Instrument with respect to the related Individual Property, the sublease shall not terminate or be terminable by the lessee thereunder by reason of the termination of the Ground Lease unless such lessee is specifically named and joined in any such action and unless a judgment is obtained therein against such lessee; and (iii) in the event that the Ground Lease is terminated as aforesaid, the lessee under the sublease shall attorn to the lessor under the Ground Lease or to the purchaser at the sale of the related Individual Property on such foreclosure, as the case may be. In the event that any portion of such Individual Property shall be sublet pursuant to the terms of this subsection, such sublease shall be deemed to be included in the Individual Property.
Appears in 2 contracts
Samples: Loan Agreement (Meristar Hospitality Operating Partnership Lp), Loan Agreement (Meristar Hospitality Corp)
The Ground Lease. (a) With respect to each Ground Lease, Pledgor Borrower shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, Borrower as tenant under and pursuant to the provisions of each the Ground LeaseLease as and when such rent or other charge is payable, (ii) diligently perform and observe all of the terms, covenants and conditions of each the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed and observed at least three (3) days prior to the expiration of any applicable grace period therein provided, and (iii) promptly notify Lender of the giving of any written notice by the landlord lessor under the applicable Ground Lease to Mortgage Borrower of any default by Mortgage Borrower in the performance or observance of any of the terms, covenants or conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Pledgor’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receiptnotice. Pledgor Borrower shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable any Ground Lease or terminate or cancel any the Ground Lease or modify, change, supplement, alter or amend any the Ground Lease, either orally or in writing, or (y) consent to, acquiesce in, or fail and Borrower hereby assigns to object to, any attempt by any Fee OwnerLender, as debtor in possession or by a trustee further security for such Fee Ownerthe payment of the Indebtedness and for the performance and observance of the terms, covenants and conditions of the Security Agreement and this Agreement, all of the rights, privileges and prerogatives of Borrower, as tenant under the Ground Lease, to sell or transfer surrender the Fee Estate with respect to any leasehold estate created by the Ground Lease free or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease and clear any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease under section 363(f) without the prior consent of the Bankruptcy Code or otherwise. Pledgor Lender shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free be void and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, no force and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Codeeffect. If Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of any the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of the Security Agreement and this Agreement and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor shall permit Lender to have the right right, 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 the Ground Lease on the part of Mortgage Borrower Borrower, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of PledgorBorrower, to the end that the rights of Mortgage Borrower in, to and under such the Ground Lease shall be kept unimpaired as a result thereof and free from default; provided, however, that even though the existence of such event of default or the nature thereof be questioned or denied by Borrower or by any party on behalf of Borrower. If Lender shall have no such obligation to make any payment or perform any act or take action in accordance with the preceding sentence, Lender will give prior written notice thereof to Borrower before the making of any such actionspayment, the performance of any such act, or the taking of any such action. If In any such event, subject to the rights of tenants, subtenants and other occupants under the leases, Lender and any person designated as Lender’s agent by Lender shall have, and are hereby granted, the right to enter upon the Ground Lease Property at any reasonable time, on reasonable notice and from time to time for the purpose of taking any such action. Lender may pay and expend such sums of money as Lender reasonably deems necessary for any such purpose and upon so doing shall be subrogated to any and all rights of the landlord under the applicable Ground Lease. Borrower hereby agrees to pay to Lender within five (5) days after demand, all such sums so paid and expended by Lender, together with interest thereon from the day of such payment at the Default Rate. All sums so paid and expended by Lender and the interest thereon shall be secured by the legal operation and effect of the Security Agreement. If the lessor under any Ground Lease shall deliver to Lender a copy of any notice of default sent by said lessor to Borrower, as tenant under such the Ground 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. Pledgor Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each the Ground Lease upon demand by Lender made at any time within one (1) year prior to of the last day upon which any such option may be exercised, and if Borrower shall fail to do so, Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Lender shall not require Borrower to exercise such option to extend or renew the term of the Ground Lease unless such option to extend or renew is, by the terms of the Ground Lease, exercisable within two (2) years of the Maturity Date. Borrower will not subordinate or consent to the subordination of any Ground Lease to any mortgage, security deed, lease or other interest on or in the landlord’s interest in all or any part of the Ground Lease Property, unless, in each such case, the written consent of Lender shall have been first had and obtained, which approval shall not unreasonably be withheld, it being acknowledged by Lender that the Ground Lease in the form in effect as of the date hereof provides for such subordination.
Appears in 2 contracts
Samples: Loan and Security Agreement (Strategic Hotels & Resorts, Inc), Loan and Security Agreement (Strategic Hotels & Resorts, Inc)
The Ground Lease. (a) With respect to each Ground Lease, Pledgor Borrower shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of each Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of each Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord under the applicable Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days days of Pledgor’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after Borrower's receipt. Pledgor Borrower shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any Ground Lease or modify, change, supplement, alter alter, amend or amend waive any material term of any Ground Lease, either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise. Pledgor shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code. If if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of any Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor Borrower shall cause Mortgage Borrower to (or cause Operating Lessee to) permit Lender to to, but Lender shall not have the right to 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 Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of PledgorBorrower, to the end that the rights of Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any notice of default under such Ground 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. Pledgor Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised.
Appears in 2 contracts
Samples: Junior Mezzanine Loan Agreement (Felcor Lodging Trust Inc), Mezzanine Loan Agreement (Felcor Lodging Trust Inc)
The Ground Lease. (a) With respect to each Ground Lease, Pledgor ,
(a) Borrower shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of each Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of each Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord Fee Owner under the applicable Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord Fee Owner under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of PledgorBorrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor Borrower in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Pledgor Borrower shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any Ground Lease or modify, change, supplement, alter or amend any Ground Lease, either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise. Pledgor Borrower shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code. Borrower hereby assigns to Lender all of its rights under Section 363 of the Bankruptcy Code to consent or object to any sale or transfer of such Fee Estate free and clear of the Ground Lease, and grants to Lender the right to object to any such sale or transfer on behalf of Borrower, and Borrower shall not contest any pleadings, motions documents or other actions filed or taken on Lender’s or Borrower’s behalf by Lender in the event that any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, attempts to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise.
(b) If Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of any Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor Lender shall permit Lender to have the right right, 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 Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of PledgorBorrower, to the end that the rights of Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any notice of default under such Ground 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. Pledgor Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
(c) Notwithstanding anything contained in any Ground Lease to the contrary, Borrower shall not further sublet any portion of the related Individual Property (other than as permitted pursuant to Section 5.1.17 hereof) without prior written consent of Lender. Each sublease hereafter made shall provide that, (a) in the event of the termination of the Ground Lease, the sublease shall not terminate or be terminable by the lessee thereunder; (b) in the event of any action for the foreclosure of the Security Instrument with respect to the related Individual Property, the sublease shall not terminate or be terminable by the lessee thereunder by reason of the termination of the Ground Lease unless such lessee is specifically named and joined in any such action and unless a judgment is obtained therein against such lessee; and (c) in the event that the Ground Lease is terminated as aforesaid, the lessee under the sublease shall attorn to the lessor under the Ground Lease or to the purchaser at the sale of the related Individual Property on such foreclosure, as the case may be. In the event that any portion of such Individual Property shall be sublet pursuant to the terms of this subsection, such sublease shall be deemed to be included in the Individual Property.
Appears in 2 contracts
Samples: Loan Agreement (KBS Real Estate Investment Trust, Inc.), Loan Agreement (KBS Real Estate Investment Trust, Inc.)
The Ground Lease. (a) With respect to each Ground Lease, Pledgor ,
(a) Borrower shall cause Mortgage Borrower to (i) pay (or cause to be paid) all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of each Ground Lease, (ii) diligently perform and observe (or cause to be diligently performed and observed) all of the material terms, covenants and conditions of each Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord Fee Owner under the applicable Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord Fee Owner under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of PledgorBorrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor Borrower in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Pledgor Borrower shall not, without the prior consent of Lender, (x) cause Mortgage Borrower subject to Section 2.7 hereof, surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any Ground Lease or materially modify, change, supplement, alter or amend any Ground Lease, either orally or in writing, other than to extend the Ground Lease term as contemplated under the terms thereunder, or (y) consent to, acquiesce in, or fail to object to, any attempt by any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise. Pledgor Borrower shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code. Borrower hereby assigns to Lender all of its rights under Section 363 of the Bankruptcy Code to consent or object to any sale or transfer of such Fee Estate free and clear of the Ground Lease, and grants to Lender the right to object to any such sale or transfer on behalf of Borrower, and Borrower shall not contest any pleadings, motions documents or other actions filed or taken on Lender’s or Borrower’s behalf by Lender in the event that any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, attempts to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise.
(b) If Mortgage Borrower (or if Operating Tenant, at Borrower’s direction under the Operating Lease) shall default in the performance or observance of any term, covenant or condition of any Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor Lender shall permit Lender to have the right right, 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 Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of PledgorBorrower, to the end that the rights of Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any notice of default under such Ground 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. Pledgor Upon the occurrence and during the continuance of an Event of Default, Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and, upon the occurrence and during the continuance of an Event of Default, Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
(c) Notwithstanding anything contained in any Ground Lease to the contrary, Borrower shall not further sublet any portion of the related Individual Property (other than as permitted pursuant to Section 5.1.17 hereof) without prior written consent of Lender. Each sublease of a Ground Lease hereafter made shall provide that, (a) in the event of the termination of the Ground Lease, in the event that Lender shall enter into a new lease with the applicable Fee Owner, the sublease shall not terminate or be terminable by the lessee thereunder; (b) in the event of any action for the foreclosure of the Security Instrument with respect to the related Individual Property, the sublease shall not terminate or be terminable by the lessee thereunder by reason of the termination of the Ground Lease unless such lessee is specifically named and joined in any such action and unless a judgment is obtained therein against such lessee or unless Lender does not enter into a new lease with the applicable Fee Owner; and (c) in the event that the Ground Lease is terminated as aforesaid, the lessee under the sublease shall attorn to the lessor under the Ground Lease or to the purchaser at the sale of the related Individual Property on such foreclosure, as the case may be. In the event that any portion of such Individual Property shall be sublet pursuant to the terms of this subsection, such sublease shall be deemed to be included in the Individual Property.
Appears in 2 contracts
Samples: Loan Agreement (Spirit Finance Corp), Loan Agreement (Spirit Finance Corp)
The Ground Lease. (a) With respect to each Ground Lease, Pledgor ,
(a) Borrower shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of each Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of each Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord Fee Owner under the applicable Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord Fee Owner under the applicable Ground Lease of which Borrower is aware or of has received any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of PledgorBorrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor Borrower in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Pledgor Borrower shall not, without the prior consent of Lender, (x) permit or cause Mortgage Borrower to (x) surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any Ground Lease or modify, change, supplement, alter or amend any Ground Lease, either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise. Pledgor Borrower shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code. Borrower hereby grants to Lender the right to object to any such sale or transfer on behalf of Borrower and Mortgage Borrower, and Borrower shall not permit or cause Mortgage Borrower to contest any pleadings, motions documents or other actions filed or taken on Lender’s or Borrower’s or Mortgage Borrower’s behalf by Lender in the event that any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, attempts to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise.
(b) If Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of any Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor Lender shall permit Lender to have the right right, to the extent Lender has received notice of, or has otherwise become aware of any such default, 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 Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of PledgorMortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any notice of default under such Ground 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. Pledgor Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease upon demand by Lender made at any time within one (1) year prior to or within the last day upon period in which any such option may be exercised.
(c) Notwithstanding anything contained in any Ground Lease to the contrary, Borrower shall not permit or cause Mortgage Borrower to further sublet any portion of the related Individual Property (other than as permitted pursuant to Section 5.1.17 hereof) without prior written consent of Lender. Each sublease hereafter made shall provide that,
(a) in the event of the termination of the Ground Lease, the sublease shall not terminate or be terminable by the lessee thereunder; (b) in the event of any action for the foreclosure of the Security Instrument with respect to the related Individual Property, the sublease shall not terminate or be terminable by the lessee thereunder by reason of the termination of the Ground Lease unless such lessee is specifically named and joined in any such action and unless a judgment is obtained therein against such lessee; and (c) in the event that the Ground Lease is terminated as aforesaid, the lessee under the sublease shall attorn to the lessor under the Ground Lease or to the purchaser at the sale of the related Individual Property on such foreclosure, as the case may be. In the event that any portion of such Individual Property shall be sublet pursuant to the terms of this subsection, such sublease shall be deemed to be included in the Individual Property.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Meristar Hospitality Corp), Mezzanine Loan Agreement (Meristar Hospitality Operating Partnership Lp)
The Ground Lease. (a) With respect to each Ground Lease, Pledgor (i) Borrower shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of each Ground Lease, (ii) diligently perform and observe all of the material terms, covenants and conditions of each Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord under the applicable Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of PledgorBorrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Pledgor Borrower shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any Ground Lease or materially modify, change, supplement, alter or amend any Ground Lease, either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise. Pledgor shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code. If Mortgage if Borrower shall default in the performance or observance of any material term, covenant or condition of any Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor Lender shall permit Lender to have the right right, 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 Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of PledgorBorrower, to the end that the rights of Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any notice of default under such Ground 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. Pledgor Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
Appears in 1 contract
Samples: Loan Agreement (Capital Lodging)
The Ground Lease. The applicable Property Guarantor shall (a) With respect to each Ground Lease, Pledgor shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums Ground Rent required to be paid by Mortgage Borrowersuch Property Guarantor, as tenant under and pursuant to the provisions of each the Ground LeaseLease as and when such Ground Rent is due and payable, (iib) diligently perform and observe (in all material respects) all of the material terms, covenants and conditions of each the Ground Lease on the part of Mortgage Borrowersuch Property Guarantor, as tenant thereunder, to be performed and observed prior to the expiration of any applicable grace period therein provided, and (iiic) promptly notify Lender Administrative Agent of the giving of any written notice by the landlord ground lessor under the applicable Ground Lease to Mortgage Borrower such Property Guarantor of any default by Mortgage Borrowersuch Property Guarantor in the performance or observance of any of the material terms, covenants or conditions of the Ground Lease on the part of such Property Guarantor, as tenant thereunder, to be performed or observed and deliver to Lender Administrative Agent a true copy of each such notice within five notice. Except as otherwise provided in this Agreement (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcyincluding Section 9.24(3)), reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Pledgor’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Pledgor shall notno Property Guarantor shall, without the prior consent of LenderAdministrative Agent, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any the Ground Lease or modify, change, supplement, alter or amend any the Ground Lease, in any material respect, either orally or in writing, or (y) consent to, acquiesce in, or fail and each Property Guarantor hereby assigns to object to, any attempt by any Fee OwnerAdministrative Agent for the benefit of the Lenders, as debtor in possession or by a trustee further security for the payment of the Debt and for the performance and observance of the Obligations of Borrower Parties under the Loan Documents, all of the rights, privileges and prerogatives of such Fee OwnerProperty Guarantor, as tenant under the Ground Lease, to sell or transfer surrender the Fee Estate with respect to any leasehold estate created by the Ground Lease free or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease in any material respect and clear any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease under section 363(f) in any material respect without the prior consent of the Bankruptcy Code Administrative Agent shall be void and of no force or otherwise. Pledgor shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Codeeffect. If Mortgage Borrower any Property Guarantor shall default in the performance or observance of any material term, covenant or condition of any the Ground Lease on the part of Mortgage Borrowersuch Property Guarantor, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of the Loan Documents and without waiving or releasing any Borrower Party from any of its obligations under any Loan Document, Administrative Agent shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor shall permit Lender to have the right right, but shall be under no obligation, upon reasonable notice to Borrower, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the material terms, covenants and conditions of such the Ground Lease on the part of Mortgage Borrower such Property Guarantor, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Pledgorsuch Property Guarantor, to the end that the rights of Mortgage Borrower such Property Guarantor in, to and under such the Ground Lease shall be kept unimpaired as a result thereof and free from default; provided, however, that Lender even though the existence of such event of default or the nature thereof be questioned or denied by any Borrower Party or by any party on behalf of any Borrower Party. If Administrative Agent shall have no such obligation to make any payment or perform any act or take action in accordance with the preceding sentence, Administrative Agent will promptly notify Borrower of the making of any such actionspayment, the performance of any such act, or the taking of any such action. If In any such event, subject to the rights of Tenants, subtenants and other occupants under the Leases or of parties to any Reciprocal Easement Agreement or any Permitted Encumbrance, Administrative Agent and any Person designated as Administrative Agent’s agent by Administrative Agent shall have, and are hereby granted, the right to peaceably enter upon the applicable Individual Property at any reasonable time, on reasonable notice and from time to time upon prior reasonable notice for the purpose of taking any such action. Administrative Agent may pay and expend such sums of money as Administrative Agent reasonably, in good faith, deems necessary for any such purpose and upon so doing shall be subrogated to any and all rights of the landlord under the applicable Ground Lease. Borrower hereby agrees to pay to Administrative Agent within five (5) Business Days after demand, all reasonable and actual out-of-pocket such sums so paid and expended by Administrative Agent, together with interest thereon from the day of such payment at the Default Rate. All sums so paid and expended by Administrative Agent and the interest thereon shall be secured by the legal operation and effect of the Mortgage and the other Loan Documents. If the ground lessor under the Ground Lease shall deliver to Lender Administrative Agent a copy of any notice of default sent by said ground lessor to any Property Guarantor, as tenant under such the Ground Lease, such notice shall constitute full protection to Lender Administrative Agent for any action taken or omitted to be taken by LenderAdministrative Agent, in good faith, in reliance thereon. Pledgor Each Property Guarantor shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each the Ground Lease upon demand by Lender Administrative Agent made at any time within one (1) year prior to of the last day upon which any such option may be exercised, and if any Property Guarantor shall fail to do so, such Property Guarantor hereby expressly authorizes and appoints Administrative Agent its attorney-in-fact to exercise any such option in the name of and upon behalf of such Property Guarantor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Except to the extent required by the terms of the Ground Lease, no Property Guarantor will subordinate or consent to the subordination of the Ground Lease to any mortgage, security deed, lease or other interest on or in the landlord’s interest in all or any part of the applicable Individual Property, unless, in each such case, the written consent of Administrative Agent shall have been first had and obtained, which approval shall not unreasonably be withheld, conditioned or delayed.
Appears in 1 contract
The Ground Lease. (a) With respect If Grantor fails to each perform or observe any term of the Ground Lease, Pledgor shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums required Lease to be paid performed or observed by Mortgage Borrower, as tenant under and pursuant to the provisions of each Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of each Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of it thereunder after the giving of any required notice by thereunder and the landlord expiration of any cure periods applicable to Grantor under the applicable Ground Lease, then, without waiving or releasing Grantor from any of its obligations hereunder, Beneficiary shall have the right, but shall be under no obligation, to pay any sum and to take any action (including entry upon the Property) to cause such performance or observance on behalf of Grantor, so that the rights of Grantor under the Ground Lease are unimpaired and free from default, even if the existence or the nature of Grantor’s default is being questioned or denied by Grantor or another person. Grantor shall pay to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice Beneficiary within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcydays after demand, reorganization all such sums so paid or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Pledgor’s receiptexpended by Beneficiary, together with copies interest thereon from the day of all noticessuch payment at the Default Rate, pleadings, schedules and similar matters received the same shall be secured by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receiptthis Deed of Trust. Pledgor shall not, without If the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any Ground Lease or modify, change, supplement, alter or amend any Ground Lease, either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of lessor under the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise. Pledgor shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code. If Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of any Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor shall permit Lender to have the right 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 Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Pledgor, to the end that the rights of Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any gives Beneficiary notice of default under such Ground Leasea default, such notice shall constitute full protection to Lender Beneficiary for any action taken or omitted to be taken by LenderBeneficiary, in good faith, in reliance thereon. Pledgor Grantor shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each the Ground Lease upon demand by Lender Beneficiary made at any time within one (1) year prior to before the last day upon which any such option may be exercised, and Grantor hereby expressly authorizes and appoints Beneficiary its attorney-in-fact to exercise any such option in the name of and on behalf of Grantor, which power of attorney shall be irrevocable and be coupled with an interest. Grantor will not subordinate or consent to the subordination of the Ground Lease to any deed of trust, security deed, lease or other interest on or in the Property without the prior written consent of Beneficiary, which consent shall be withheld or granted in Beneficiary’s sole discretion.
Appears in 1 contract
Samples: Leasehold Deed of Trust (Ashford Hospitality Prime, Inc.)
The Ground Lease. (a) With respect to each Ground Lease, Pledgor (a) Borrower shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of each Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of each Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord under the applicable Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Pledgor’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after Borrower's receipt. Pledgor Borrower shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any Ground Lease or modify, change, supplement, alter or amend any Ground Lease, either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise. Pledgor shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code. If Mortgage if Borrower shall default in the performance or observance of any term, covenant or condition of any Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor Lender shall permit Lender to have the right right, 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 Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of PledgorBorrower, to the end that the rights of Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any notice of default under such Ground 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. Pledgor Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
(b) Notwithstanding anything contained in any Ground Lease to the contrary, Borrower shall not further sublet any portion of the related Individual Property (other than as permitted pursuant to Section 5.1.17 hereof) without prior written consent of Lender. Each sublease hereafter made shall provide that, (a) in the event of the termination of the Ground Lease, the sublease shall not terminate or be terminable by the lessee thereunder; (b) in the event of any action for the foreclosure of the Security Instrument with respect to the related Individual Property, the sublease shall not terminate or be terminable by the lessee thereunder by reason of the termination of the Ground Lease unless such lessee is specifically named and joined in any such action and unless a judgment is obtained therein against such lessee; and (c) in the event that the Ground Lease is terminated as aforesaid, the lessee under the sublease shall attorn to the lessor under the Ground Lease or to the purchaser at the sale of the related Individual Property on such foreclosure, as the case may be. In the event that any portion of such Individual Property shall be sublet pursuant to the terms of this subsection, such sublease shall be deemed to be included in the Individual Property
Appears in 1 contract
The Ground Lease. (a) With This Lease, to the extent affecting and solely with respect to each the Ground LeaseLeased Property, Pledgor is and shall cause Mortgage Borrower be subject and subordinate to (i) pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of each Ground Lease, (ii) diligently perform and observe all of the terms, covenants terms and conditions of each the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender Lease. Tenant hereby acknowledges that Tenant has reviewed and agreed to all of the giving of any notice by the landlord under the applicable Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, terms and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency conditions of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Pledgor’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Pledgor shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any Ground Lease or modify, change, supplement, alter or amend any Ground Lease, either orally or in writing, or (y) consent to, acquiesce in. Tenant hereby agrees that Tenant shall not to do, or fail to object todo, anything that would cause any attempt by any Fee Ownerviolation of the Ground Lease. Without limiting the foregoing, as debtor in possession or by a trustee for such Fee Owner, (i) to sell or transfer the Fee Estate with respect extent Landlord is required to any obtain the written consent of the lessor under the Ground Lease free (the “Ground Lessor”) to alterations of or the subleasing of all or any portion of the Ground Leased Property pursuant to the Ground Lease, Tenant shall likewise obtain Ground Lessor’s written consent to alterations of or the subleasing of all or any portion of the Ground Leased Property, and clear (ii).Tenant shall carry and maintain general liability, automobile liability, property and casualty, worker’s compensation and employer’s liability insurance in amounts and with policy provisions, coverages and certificates as required of Landlord as tenant under the Ground Lease.
(b) In the event of cancellation or termination of the Ground Lease under section 363(f) for any reason whatsoever whether voluntary or involuntary (by operation of the Bankruptcy Code law or otherwise. Pledgor ) prior to the expiration date of this Lease, including extensions and renewals granted thereunder, then, at Ground Lessor’s option, Tenant shall cause Mortgage Borrower make full and complete attornment to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate Ground Lessor with respect to any the obligations of Landlord to Ground Lessor in connection with the Ground Leased Property for the balance of the term of the Lease (notwithstanding that this Lease shall have expired with respect to the Ground Leased Property as a result of the cancellation or termination of the Ground Lease). Tenant’s attornment shall be evidenced by a written agreement which shall provide that the Tenant is in direct privity of contract with Ground Lessor (i.e. that all obligations previously owed to Landlord under this Lease with respect to the Ground Lease free or the Ground Leased Property shall be obligations owed to Ground Lessor for the balance of the term of this Lease, notwithstanding that this Lease shall have expired with respect to the Ground Leased Property as a result of the cancellation or termination of the Ground Lease) and clear which shall otherwise be in form and substance reasonably satisfactory to Ground Lessor. Tenant shall execute and deliver such written attornment within thirty (30) days after request by Ground Lessor. Unless and until such time as an attornment agreement is executed by Tenant pursuant to this subsection, nothing contained in this Lease shall create, or be construed as creating, any privity of contract or privity of estate between Ground Lessor and Tenant.
(c) In the event Tenant receives a written notice from Ground Lessor stating that an event of default has occurred or exists under the Ground Lease, the Tenant shall thereafter, during the continuance of such event of default, pay and perform all of Landlord’s obligations pursuant to the Ground Lease directly to or for Ground Lessor including, without limitation, the payment of all rentals accruing under this Lease to the extent related to the Ground Leased Property and the Landlord’s obligations under the Ground Lease directly to Ground Lessor (or Ground Lessor’s lender if Ground Lessor shall so direct); provided that nothing in this provision shall entitle Tenant to reduce the amount of Base Rent payable to Landlord under this Lease (subject to a reservation of any right or claim against the Landlord). Similarly, in the event Tenant receives a written notice from any lessor under any master lease of any portion of the Ground Leased Property to Ground Lessor stating that an event of default has occurred or exists under such master lease, the Tenant shall thereafter, during the continuance of such event of default, so long as the terms of this Lease are recognized and honored, attorn to such master lessor and pay and perform all of Ground Lessor’s obligations pursuant to such master lease directly to or for such lessor under such master lease including, without limitation, the payment of rentals accruing under this Lease to the extent related to that portion of the Ground Leased Property subject to such master lease and the Ground Lessor’s obligations under such master lease directly to such lessor; provided that nothing in this provision shall entitle Tenant to reduce the amount of Base Rent payable to Landlord under this Lease (subject to a reservation of any right or claim against the Landlord).
(d) Nothing contained in this Lease amends, or shall be construed to amend, any provision of the Ground Lease.
(e) Tenant shall indemnify, defend and hold harmless the Ground Lessor, any master lessor to Ground Lessor and any other party entitled to be indemnified pursuant to the terms of the Ground Lease under section 363(f) from and against any and all claims arising from Tenant’s use of the Bankruptcy Code or otherwiseGround Leased Property, and from and against the conduct of Tenant’s business thereon or from any other activity, work or thing done, permitted or suffered by Tenant in, about or in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) respect of the Bankruptcy Code. If Mortgage Borrower shall Ground Leased Property, and from and against any and all claims arising from any breach or default in the performance or observance of any term, covenant or condition obligation on Tenant’s part to be performed under the terms of any Ground this Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior relating to the expiration of any applicable cure period provided thereunderGround Leased Property, Pledgor shall permit Lender to have the right to pay any sums and to perform or arising from any act or take omission of Tenant or Tenant’s agents, contractors, invitees, subtenants, customers or employees with respect to the Ground Leased Property, and from and against all costs, attorneys’ fees, expenses and liabilities incurred in the defense of any such claim or any action as may or proceeding brought thereon; and in case any action or proceeding be appropriate brought against the Ground Lessor or any master lessor to cause Ground Lessor or any such party by reason of any such claim, Tenant, upon notice from Ground Lessor, any master lessor to Ground Lessor or any such party, shall defend the same at Tenant’s expense by counsel satisfactory to the party or parties indemnified pursuant to this paragraph or the Ground Lease.
(f) Tenant hereby waives any and all rights of recovery (including subrogation rights of its insurers) from Ground Lessor, its agents, principals, employees and representatives for any loss or damage, including consequential loss or damage, covered by any insurance policy maintained by Tenant, whether or not such policy is required under the terms of the terms, covenants and conditions of such Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Pledgor, to the end that the rights of Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any notice of default under such Ground 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. Pledgor shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised.
Appears in 1 contract
The Ground Lease. (a) With respect to each Ground Lease, Pledgor Borrower shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of each Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of each Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord under the applicable Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days days of PledgorBorrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Pledgor Borrower shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any Ground Lease or modify, change, supplement, alter alter, amend or amend waive any material term of any Ground Lease, either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise. Pledgor shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code. If Mortgage if Borrower shall default in the performance or observance of any term, covenant or condition of any Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor Lender shall permit Lender to have the right right, 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 Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of PledgorBorrower, to the end that the rights of Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any notice of default under such Ground 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. Pledgor Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
Appears in 1 contract
The Ground Lease. (a) With respect to each Ground Lease, Pledgor Borrower shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of each the Ground Lease, the Miami Lease and the Miramar Parcel Lease provided, however, that Borrower’s obligation to directly pay Ground Rents shall be suspended for so long as Borrower complies with the terms and provisions of Section 7.6 hereof, (ii) diligently perform and observe all of the terms, covenants and conditions of each the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord under the applicable Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender upon learning of any bankruptcy, reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of PledgorBorrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Pledgor Borrower shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any the Ground Lease or modify, change, supplement, alter or amend any the Ground Lease, in any material respect, either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise. Pledgor shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code. If Mortgage if Borrower shall default in the performance or observance of any material term, covenant or condition of any the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and Lender shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor shall permit Lender to have the right right, 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of PledgorBorrower, to the end that the rights of Mortgage Borrower in, to and under such the Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any notice of default under such the Ground 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, unless Lender’s action constitutes gross negligence, fraud, illegal acts or willful misconduct. Pledgor Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each the Ground Lease upon demand by Lender made at any time within one six (16) year months prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
Appears in 1 contract
The Ground Lease. (a) With respect to each Ground Lease, Pledgor Mortgagor shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, Mortgagor as tenant ground lessee under and pursuant to the provisions of each the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of each the Ground Lease on the part of Mortgage BorrowerMortgagor, as tenant ground lessee thereunder, to be performed and observed, unless such performance or observance shall be waived or not required in writing by the ground lessor under the Ground Lease, to the end that all things shall be done which are necessary to keep unimpaired the rights of Mortgagor, as ground lessee, under the Ground Lease, and (iii) promptly (but in no event later than five (5) business days after notice thereof) notify Lender Mortgagee of the giving of any notice by the landlord ground lessor under the applicable Ground Lease to Mortgage Borrower Mortgagor of any default by Mortgage BorrowerMortgagor in the -5- 110 performance or observance of any of the terms, covenants or conditions of the Ground Lease on the part of Mortgagor, as tenant ground lessee thereunder, to be performed or observed, and deliver to Lender Mortgagee a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Pledgor’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receiptnotice. Pledgor Mortgagor shall not, without the prior consent of LenderMortgagee, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any the Ground Lease or modify, change, supplement, alter or amend any the Ground Lease, in any respect, either orally or in writing, or (y) consent to, acquiesce in, or fail and Mortgagor hereby assigns to object to, any attempt by any Fee OwnerMortgagee, as debtor in possession or by a trustee further security for such Fee Ownerthe payment of the Debt and for the performance and observance of the terms, covenants and conditions of this Mortgage, all of the rights, privileges and prerogatives of Mortgagor, as ground lessee under the Ground Lease, to sell or transfer surrender the Fee Estate with respect to any leasehold estate created by the Ground Lease free or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease, and clear any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease under section 363(f) without the prior consent of the Bankruptcy Code or otherwise. Pledgor Mortgagee shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free be void and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, no force and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Codeeffect. If Mortgage Borrower Mortgagor shall default in the performance or observance of any term, covenant or condition of any the Ground Lease on the part of Mortgage BorrowerMortgagor, as tenant ground lessee thereunder, to be performed or observed, then, without limiting the generality of the other provisions of this Mortgage, and without waiving or releasing Mortgagor from any of its obligations hereunder, Mortgagee shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor shall permit Lender to have the right right, 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 the Ground Lease on the part of Mortgage Borrower Mortgagor, as ground lessee thereunder, to be performed or observed to be promptly performed or observed on behalf of PledgorMortgagor, to the end that the rights of Mortgage Borrower Mortgagor in, to and under such the Ground Lease shall be kept unimpaired and free from default; provided, howeverand Mortgagor shall upon demand of Mortgagee reimburse Mortgagee for all sums so paid by Mortgagee and for all expenses (including, that Lender reasonable attorneys fees) actually incurred by Mortgagee in taking any such action, together with interest thereon at the Default Rate. If Mortgagee shall have no such obligation to make any payment or perform any act or take any action in accordance with the preceding sentence, Mortgagee will notify Mortgagor of the making of any such actionspayment, the performance of any such act, or the taking of any such action. In any such event, Mortgagee its agents and employees shall have, and are hereby granted, the right to enter upon the Mortgaged Property at any time and from time to time for the purpose of taking any such action. If the landlord ground lessor under the applicable Ground Lease shall deliver to Lender Mortgagee a copy of any notice of default sent by said ground lessor to Mortgagor, as ground lessee under such the Ground Lease, such notice shall constitute full protection to Lender Mortgagee for any action taken or omitted to be taken by LenderMortgagee, in good faith, in reliance thereon. Pledgor Mortgagor shall, from time to time, use commercially reasonable best efforts to obtain from the ground lessor under the Ground Lease such certificates of estoppel with respect to compliance by Mortgagor with the terms of the Ground Lease as may be requested by Mortgagee, to the extent the ground lessor is obligated to provide such certificates of estoppel pursuant to the terms and provisions of the Ground Lease. Mortgagor shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each the Ground Lease upon demand by Lender Mortgagee made at any time within one (1) year prior to of the last day upon which any such option may be exercised, and Mortgagor hereby expressly authorizes and appoints Mortgagee its attorney-in-fact to exercise, either jointly or individually, any such option in the name of and upon behalf of Mortgagor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.]***
Appears in 1 contract
The Ground Lease. (a) With respect to each Ground Lease, Pledgor Borrower shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of each the Ground LeaseLease as and when such rent or other sums are due and payable, (ii) diligently perform and observe all of the terms, covenants and conditions of each the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed and observed prior to the expiration of any applicable grace period therein provided, and (iii) promptly notify Lender of the giving of any written notice by the landlord ground lessor under the applicable Ground Lease to Mortgage Borrower of any default by Mortgage Borrower in the performance or observance of any of the terms, covenants or conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed and deliver to Lender a true copy of each such notice within five notice. Except as otherwise provided in this Agreement (5including but not limited to subsection (c) Business Days of receipt and (iv) promptly notify Lender of any bankruptcybelow), reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Pledgor’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Pledgor Borrower shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any the Ground Lease or modify, change, supplement, alter or amend any the Ground Lease, in any material respect, either orally or in writing, or (y) consent to, acquiesce in, or fail and Borrower hereby assigns to object to, any attempt by any Fee OwnerLender, as debtor in possession or by a trustee further security for such Fee Ownerthe payment of the Debt and for the performance and observance of the terms, covenants and conditions of the Mortgage and this Agreement, all of the rights, privileges and prerogatives of Borrower, as tenant under the Ground Lease, to sell or transfer surrender the Fee Estate with respect to any leasehold estate created by the Ground Lease free or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease in any material respect and clear any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease under section 363(f) in any material respect without the prior consent of the Bankruptcy Code or otherwise. Pledgor Lender shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free be void and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, no force and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Codeeffect. If Mortgage Borrower shall default in the performance or observance of any material term, covenant or condition of any the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of the Mortgage and this Agreement and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor shall permit Lender to have the right right, 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 material terms, covenants and conditions of such the Ground Lease on the part of Mortgage Borrower Borrower, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of PledgorBorrower, to the end that the rights of Mortgage Borrower in, to and under such the Ground Lease shall be kept unimpaired as a result thereof and free from default; provided, however, that even though the existence of such event of default or the nature thereof be questioned or denied by Borrower or by any party on behalf of Borrower. If Lender shall have no such obligation to make any payment or perform any act or take action in accordance with the preceding sentence, Lender will promptly notify Borrower of the making of any such actionspayment, the performance of any such act, or the taking of any such action. If In any such event, subject to the rights of Tenants, subtenants and other occupants under the Leases, Lender and any person designated as Lender’s agent by Lender shall have, and are hereby granted, the right to peaceably enter upon the Property at any reasonable time, on reasonable notice and from time to time upon prior reasonable notice for the purpose of taking any such action. Lender may pay and expend such sums of money as Lender reasonably, in good faith, deems necessary for any such purpose and upon so doing shall be subrogated to any and all rights of the landlord under the applicable Ground Lease. Borrower hereby agrees to pay to Lender within five (5) Business Days after demand, all such sums so paid and expended by Lender, together with interest thereon from the day of such payment at the Default Rate. All sums so paid and expended by Lender and the interest thereon shall be secured by the legal operation and effect of the Mortgage. If the ground lessor under the Ground Lease shall deliver to Lender a copy of any notice of default sent by said ground lessor to Borrower, as tenant under such the Ground 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. Pledgor Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each the Ground Lease upon demand by Lender made at any time within one (1) year prior to of the last day upon which any such option may be exercised, and if Borrower shall fail to do so, Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Borrower will not subordinate or consent to the subordination of the Ground Lease to any mortgage, security deed, lease or other interest on or in the landlord’s interest in all or any part of the Property, unless, in each such case, the written consent of Lender shall have been first had and obtained, which approval shall not unreasonably be withheld, conditioned or delayed.
Appears in 1 contract
The Ground Lease. (a) With respect to each Ground Lease, Pledgor Borrower shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of each Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of each Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord under the applicable Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days days of Pledgor’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after Borrower's receipt. Pledgor Borrower shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any Ground Lease or modify, change, supplement, alter alter, amend or amend waive any material term of any Ground Lease, either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise. Pledgor shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code. If Mortgage if Borrower shall default in the performance or observance of any term, covenant or condition of any Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor Lender shall permit Lender to have the right right, 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 Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of PledgorBorrower, to the end that the rights of Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any notice of default under such Ground 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. Pledgor Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
Appears in 1 contract
The Ground Lease. (a) With respect to each Ground Lease, Pledgor Borrower shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of each the Ground Lease, the Miami Lease and the Miramar Parcel Lease (except as otherwise provided in Section 7.4 hereof), (ii) diligently perform and observe all of the terms, covenants and conditions of each the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the a landlord under the applicable Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender upon learning of any bankruptcy, reorganization or insolvency of the a landlord under the applicable a Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of PledgorMortgage Borrower’s receipt. Notwithstanding the foregoing, together so long as the Monthly Ground Rent Deposit is duly deposited in accordance with copies the Mortgage Loan Documents and no Event of all noticesDefault shall have occurred and be continuing, pleadings, schedules Borrower shall be deemed to have satisfied the then-current obligations of clause (i) above. Borrower shall not and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Pledgor shall notcause Mortgage Borrower not to, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the any leasehold estate created by the applicable Ground Lease or terminate or cancel any the Ground Lease or modify, change, supplement, alter or amend any the Ground Lease, in any material respect, either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any Fee Owner, as debtor in possession or by and if a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise. Pledgor shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code. If Mortgage Borrower shall default in the performance or observance of any material term, covenant or condition of any the Ground Lease on the part of a Mortgage Borrower, as tenant thereunder, and Lender shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor shall permit Lender to have the right right, 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of PledgorMortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under such the Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any notice of default under such the Ground 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, unless Lender’s action constitutes gross negligence, fraud, illegal acts or willful misconduct. Pledgor Borrower shall, and shall cause Mortgage Borrower to to, exercise each individual option, if any, to extend or renew the term of each the Ground Lease upon demand by Lender made at any time within one six (16) year months prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to cause Mortgaged Borrower to exercise any such option in the name of and upon behalf of Mortgage Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
Appears in 1 contract
The Ground Lease. (a) With The provisions contained in this Deed of Trust shall be deemed to be obligations of Trustor in addition to Trustor's obligations as tenant with respect to each similar matters under which Trustor is obligated under the Ground Lease and shall not restrict or limit Trustor's duties and obligations to keep and perform promptly all of its covenants, agreements and obligations as tenant under the Ground Lease.
(b) Trustor shall at all times fully perform and comply with all the agreements, covenants, terms and conditions imposed upon the tenant under the Ground Lease, Pledgor and if Trustor shall cause Mortgage Borrower fail so to do, Beneficiary may (i) pay but shall not be obligated to), upon providing prior written notice to Trustor except in the event of an emergency where prior notice is not practical, take any action Beneficiary deems necessary or desirable to prevent or cure any default thereunder including, without limitation, performance of any of the tenant's covenants or obligations under the Ground Lease. Beneficiary and any person designated by Beneficiary 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 cure action as described herein. Upon Beneficiary's request, Trustor will submit satisfactory evidence of payment of all of its monetary obligations under the Ground Lease (including but not limited to rents, additional rents taxes, assessments, insurance premiums and other sums required to be paid operating expenses). Upon receipt by Mortgage Borrower, as tenant Beneficiary from the Agency or any successor landlord under and pursuant to the provisions of each Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of each Ground Lease on (in either case, the part "Landlord") of Mortgage Borrower, any written notice of default by Trustor or any other party as tenant thereunder, (iii) promptly notify Lender Beneficiary may rely thereon and take such action as aforesaid to cure such default even though the existence of such default or the giving nature thereof be questioned or denied by Trustor or by any party on behalf of Trustor. Beneficiary may pay and expend such sums of money as Beneficiary in its sole discretion deems necessary for any notice by the landlord under the applicable Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereundersuch purpose, and deliver Trustor hereby agrees to Lender a true copy pay to Beneficiary, immediately and without demand, all such sums so paid and expended by Beneficiary, together with interest thereon from the date of each such notice within five payment at the Default Rate (5) Business Days of receipt as defined in the Note). All sums so paid and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereofexpended by Beneficiary, and deliver the interest thereon, shall be added to Lender a true copy and be secured by the lien of such notice within five this Deed of Trust.
(5c) Business Days of Pledgor’s receipt, together with Trustor shall give Beneficiary duplicate copies of all notices, pleadingsreports, schedules statements and similar matters received by Pledgor items which Trustor is obligated or elects to give under the Ground Lease or which Trustor receives from Landlord under the Ground Lease. Whenever in connection with the Ground Lease, Trustor shall have the right to request any information, statements, documents, canceled receipts or anything else whatsoever, Beneficiary shall have the right to request the same from Trustor hereunder, and such bankruptcyinformation, reorganization or insolvency within five statements, documents, canceled receipts and other requested material shall thereafter be given to Beneficiary as if Beneficiary had requested the same.
(5d) Business Days after receipt. Pledgor Trustor shall not shall not, in each case without the prior written consent of LenderBeneficiary: (i) alter, amend, change, extend or modify any provision contained in the Ground Lease; (xii) cause Mortgage Borrower waive or consent to a waiver of any of its rights and benefits thereunder; or (iii) cancel, release, surrender or terminate the leasehold estate created by same (whether pursuant to any right of election granted under the applicable Ground Lease or terminate otherwise); nor shall Trustor perform or cancel omit to perform any act without the prior written consent of Beneficiary if the performance or omission of such act would constitute a default under the Ground Lease or modifyLease. Any such termination, cancellation, modification, change, supplement, alter alteration or amend any Ground Lease, either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear amendment of the Ground Lease under section 363(f) without the prior written consent of the Bankruptcy Code or otherwise. Pledgor shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code. If Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of any Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor shall permit Lender to have the right 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 Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Pledgor, to the end that the rights of Mortgage Borrower in, to and under such Ground Lease Beneficiary shall be kept unimpaired void and free from default; provided, however, that Lender shall have of no such obligation to perform any such actions. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any notice of default under such Ground 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. Pledgor shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercisedforce and effect.
Appears in 1 contract
Samples: Deed of Trust, Security Agreement and Fixture Filing (Maguire Properties Inc)
The Ground Lease. The provisions of this Article 42 shall apply and be controlling notwithstanding anything to the contrary contained herein if Lessor owns its interest in the Land or Improvements through a ground or building lease. All of the terms of the lease or leases described in Exhibit "B" attached hereto (a) With respect collectively referred to each herein as the "Ground Lease") are hereby incorporated into and made a part of this Lease as if stated at length herein. The parties hereto agree that wherever the words "Land" appear in this Lease, Pledgor the same shall cause Mortgage Borrower be deemed to (i) pay all rents, additional rents and other sums required to be paid mean the premises demised by Mortgage Borrower, as tenant under and pursuant to the provisions Ground Lease. Lessee shall have the benefit of each and every covenant and agreement made by the lessor under the Ground Lease ("Ground Lessor"), to Lessor under the Ground Lease and Lessee accepts this Lease subject to, all of the terms, covenants, conditions and agreements contained in the Ground Lease. Lessor shall pay directly to Ground Lessor all rent due from Lessor to Ground Lessor under the terms of the Ground Lease when due. Lessee and Lessor covenant and agree with each other that neither shall do anything which shall have the effect of creating a breach on the part of Lessor, (ii) diligently perform its successors and observe all assigns, of any of the terms, covenants and conditions of each the Ground Lease. Notwithstanding the foregoing, in the event that Ground Lessor shall fail or refuse to comply with any of the respective provisions of the Ground Lease despite Lessor's good faith reasonable efforts to obtain such compliance and Lessor is not in default under the Ground Lease, Lessor shall have no liability on account of any such failure or refusal, provided that Lessee shall have the option to request that Lessor assign to Lessee, and Lessee shall have, the right to exercise in its own name (and not that of Lessor) all of the rights to enforce compliance on the part of Mortgage BorrowerGround Lessor as are available to Lessor. Lessor hereby agrees to cooperate with and execute and deliver, as tenant thereunderall at Lessee's expense, (iii) promptly notify Lender of the giving of any notice all instruments and information required by the landlord under the applicable Ground Lease Lessee in order to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each enforce such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Pledgor’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Pledgor shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any Ground Lease or modify, change, supplement, alter or amend any Ground Lease, either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise. Pledgor shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code. If Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of any Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor shall permit Lender to have the right 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 Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Pledgor, to the end that the rights of Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any notice of default under such Ground 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. Pledgor shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercisedcompliance.
Appears in 1 contract
The Ground Lease. (a) With respect to each Ground Lease, Pledgor Borrower shall cause Mortgage Borrower to (i) pay all rents, ---------------- additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of each the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of each the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed and observed, unless such performance or observance shall be waived or not required by the landlord under the Ground Lease ("Ground Lessor"), to the end that all things shall be done which are necessary to keep unimpaired the rights of Borrower, as tenant, under the Ground Lease, and (iii) promptly notify Lender of the giving of any notice by the landlord under the applicable Ground Lease Lessor to Mortgage Borrower of any default by Mortgage of the terms, covenants or conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed and deliver to Lender Borrower a true copy of each such notice within five notice.
(5b) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Pledgor’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Pledgor Borrower shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any the Ground Lease or modify, change, supplement, alter or amend any the Ground Lease, in any respect, either orally or in writing, or (y) consent to, acquiesce in, or fail and Borrower hereby assigns to object to, any attempt by any Fee OwnerLender, as debtor in possession or by a trustee further security for such Fee Ownerthe payment of the Debt and for the performance and observance of the terms, covenants and conditions of this Security Instrument, all of the rights, privileges and prerogatives of Borrower, as tenant under the Ground Lease, to sell or transfer surrender the Fee Estate with respect to any Ground Lease free and clear of leasehold estate created by the Ground Lease under section 363(f) or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease, and any such surrender of the Bankruptcy Code or otherwise. Pledgor shall cause Mortgage Borrower to object to any such attempt leasehold estate created by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(fwithout the prior consent of Lender shall be void and of no force and effect.
(c) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code. If Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of any the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performance or observed, then, without limiting the generality of the other provisions of this Security Instrument, and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor shall permit Lender to have the right right, 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 the Ground Lease on the part of Mortgage Borrower Borrower, as tenant thereunder, to be performed or observed to be promptly performed or observed on behalf of PledgorBorrower, to the end that the rights of Mortgage Borrower in, to and under such the Ground Lease shall be kept unimpaired and free from default; provided, however, that . If Lender shall have no such obligation to make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Borrower of the making of any such actionspayment, the performance of any such act, or taking of any such action. If In any such event, subject to the landlord rights of lessees, sublessees and other occupants under the applicable Leases, Lender and any person designated by Lender shall have, and are hereby granted, the right to enter upon the Leased Land (such term being used herein as defined in the Credit Agreement) and at any time and from time to time for the purpose of taking any such action.
(d) If Ground Lease Lessor shall deliver to Lender a copy of any notice of default sent by Ground Lessor to Borrower, as tenant under such the Ground 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. Pledgor .
(e) Borrower shall, from time to time, use its best efforts to obtain from Ground Lessor such certificates of estoppel with respect to compliance by Borrower with the terms of the Ground Lease as may reasonably be requested by Lender in substantially the form delivered to Lender on or prior to the date hereof.
(f) Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each the Ground Lease upon demand by Lender made at any time within one (1) year prior to of the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
(g) So long as any portion of the Debt shall remain unpaid, unless Lender shall otherwise consent, the fee title to the Land, and the leasehold estate therein created pursuant to the provisions of the Ground Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Borrower, or in any other person by purchase, option of law or otherwise. If Lender shall acquire the fee title to the Land and the leasehold estate therein created pursuant to the provisions of the Ground Lease, by foreclosure of this Secured Instrument or otherwise, such estates shall not merge as a result of such acquisition and shall remain separate and distinct for all purposes after such acquisition unless and until Lender shall elect to merge such estates.
(h) To the extent permitted by law, the price payable by Borrower or any other person or entity in the exercise of any right of redemption following foreclosure of the Property demised pursuant to the Ground Lease shall include all rents paid and other sums advanced by Lender, together with interest thereon at the Default Rate, as ground lessee under the Ground Lease, on behalf of Borrower on account of such Property.
(i) Upon acquisition of the fee title or any other estate, title or interest in the Leased Land, this Security Instrument shall, automatically and without the necessity of execution of any other documents, attach to and cover and be a lien upon such other estate so acquired, and such other estate shall be considered as mortgaged, assigned and conveyed to Lender and the lien hereof spread to cover such estate with the same force and effect as though specifically herein mortgaged, assigned and conveyed. Borrower shall execute such instruments as Lender may require to confirm any such spreads. The provisions of this subsection (i) shall not apply if Lender acquires title to the Leased Land unless Lender shall so elect.
(j) Each Lease hereafter made for space in the improvements located on the Leased Property (each, a "Leased Property Space Lease") and each renewal of any existing Leased Property Space Lease shall provide that, (i) in the event of the termination of the Ground Lease, the Leased Property Space Lease shall not terminate or be terminable by the tenant thereunder; (ii) in the event of any action for the foreclosure of this Security Instrument, the Leased Property Space Lease shall not terminate or be terminable by the tenant thereunder by reason of the termination of the Ground Lease unless such tenant is specifically named and joined in any such action and unless a judgment is obtained therein against such tenant; and (iii) in the event that the Ground Lease is terminated as aforesaid, the tenant under the Leased Property Space Lease shall attorn to the tenant under the Ground Lease or to the purchaser at the sale of the Leased Property on such foreclosure, as the case may be.
(k) Borrower hereby assigns, transfers and sets over to Lender all of Borrower's claims and rights to the payment of damages arising from any rejection by the Ground Lessor of the Ground Lease under the Bankruptcy Code. Borrower shall notify Lender promptly (and in any event within ten (10) days) of any claim, suit action or proceeding relating to the rejection of the Ground Lease. Lender is hereby irrevocably appointed as Borrower's attorney-in-fact, coupled with an interest, with exclusive power to file and prosecute, to the exclusion of Borrower during the continuance of an Event of Default, any proofs of claim, complaints, motions, applications, notices and other documents, in any case in respect of the Ground Lessor under the Bankruptcy Code. Borrower may make any compromise or settlement in connection with such proceedings (subject to Lender's reasonable approval); provided, however, that Lender shall be authorized and entitled to compromise or settle any such proceeding if such compromise or settlement is made after the occurrence and during the continuance of an Event of Default. Borrower shall promptly execute and deliver to Lender any and all instruments reasonably required in connection with any such proceeding after request therefor by Lender. Except as set forth above, Borrower shall not adjust, compromise, settle or enter into any agreement with respect to such proceedings without the prior written consent of Lender.
(l) Borrower shall not, without Lender's prior written consent, elect to treat the Ground Lease as terminated under Section 365(h)(l) of the Bankruptcy Code. Any such election made without Lender's prior written consent shall be void.
(m) If pursuant to Section 365(h)(2) of the Bankruptcy Code, Borrower seeks to offset against the rent reserved in the Ground Lease the amount of any damages caused by the non-performance by the Ground Lessor of any of the Ground Lessor's obligations under the Ground Lease after the rejection by the Ground Lessor of the Ground Lease under the Bankruptcy Code, Borrower shall, prior to effecting such offset, notify Lender of its intention to do so, setting forth the amounts proposed to be so offset and the basis therefor. If Lender has failed to object as aforesaid within ten (10) days after notice from Borrower in accordance with the first sentence of this subsection (m), Borrower may proceed to effect such offset in the amounts set forth in Borrower's notice. Neither Lender's failure to object as aforesaid nor any objection or other communication between Lender and Borrower relating to such offset shall constitute an approval of any such offset by Lender. Borrower shall indemnify and save Lender harmless from and against any and all claims, demands, actions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever (including reasonable attorneys' fees and disbursements) arising from or relating to any such offset by Borrower against the rent reserved in the Ground Lease, other than to the extent arising from Lender's gross negligence or willful misconduct.
(n) If any action, proceeding, motion or notice shall be commenced or filed in respect of Borrower or, after the occurrence and during the continuance of an Event of Default, the Property in connection with any case under the Bankruptcy Code, Lender shall have the option, to the exclusion of Borrower, exercisable upon notice from Lender to Borrower, to conduct and control any such litigation with respect to the Ground Lease with counsel of Lender's choice. Lender may proceed in its own name or in the name of Borrower in connection with any such litigation, and Borrower agrees to execute any and all powers, authorizations, consents and other documents required by Lender in connection therewith. Borrower shall pay to Lender all costs and expenses (including reasonable attorneys' fees and disbursements) paid or incurred by Lender in connection with the prosecution or conduct of any such proceedings within ten (10) days after notice from Lender setting forth such costs and expenses in reasonable detail. Any such costs or expenses not paid by Borrower as aforesaid shall be secured by the lien of this Security Instrument, shall be added to the principal amount of the Debt and shall bear interest at the Default Interest Rate. Borrower shall not commence any action, suit, proceeding or case, or file any application or make any motion, in respect of the Ground Lease in any such case under the Bankruptcy Code without the prior written consent of Lender.
(o) Borrower shall immediately, after obtaining knowledge thereof, notify Lender of any filing by or against the Ground Lessor of a petition under the Bankruptcy Code. Borrower shall thereafter forthwith give written notice of such filing to Lender, setting forth any information available to Borrower as to the date of such filing, the court in which such petition was filed, and the relief sought therein. Borrower shall promptly deliver to Lender following receipt any and all notices, summonses, pleadings, applications and other documents received by Borrower in connection with any such petition and any proceedings relating thereto.
(p) If there shall be filed by or against Borrower a petition under the Bankruptcy Code, and Borrower, as the tenant under the Ground Lease, shall determine to reject the Ground Lease pursuant to Section 365(a) of the Bankruptcy Code, then Borrower shall give Lender not less than ten (10) days' prior notice of the date on which Borrower shall apply to the bankruptcy court for authority to reject the Ground Lease. Lender shall have the right, but not the obligation, to serve upon Borrower within such 10-day period a notice stating that (i) Lender demands that Borrower assume and assign the Ground Lease to Lender pursuant to Section 365 of the Bankruptcy Code and (ii) Lender covenants to cure or provide adequate assurance of prompt cure of all defaults and provide adequate assurance of future performance under the Ground Lease. If Lender serves upon Borrower the notice described in the preceding sentence, Borrower shall not seek to reject the Ground Lease and shall comply with the demand provided for in clause (i) of the preceding sentence within thirty (30) days after the notice shall have been given, subject to the performance by Lender of the covenant provided for in clause (ii) of the preceding sentence.
(q) Effective upon the entry of an order for relief in respect of Borrower under the Bankruptcy Code, Borrower hereby assigns and transfers to Lender a non-exclusive right to apply to the Bankruptcy Code under Section 365(d)(4) of the Bankruptcy Code for an order extending the period during which the Ground Lease may be rejected or assumed.
Appears in 1 contract
Samples: Variable Interest Rate Deed of Trust (Kilroy Realty Corp)
The Ground Lease. The applicable Borrower shall (a) With respect to each Ground Lease, Pledgor shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums Ground Rent required to be paid by Mortgage such Borrower, as tenant under and pursuant to the provisions of each the Ground LeaseLease as and when such Ground Rent is due and payable, (iib) diligently perform and observe (in all material respects) all of the material terms, covenants and conditions of each the Ground Lease on the part of Mortgage such Borrower, as tenant thereunder, to be performed and observed prior to the expiration of any applicable grace period therein provided, and (iiic) promptly notify Lender Administrative Agent of the giving of any written notice by the landlord ground lessor under the applicable Ground Lease to Mortgage such Borrower of any default by Mortgage such Borrower in the performance or observance of any of the material terms, covenants or conditions of the Ground Lease on the part of such Borrower, as tenant thereunder, to be performed or observed and deliver to Lender Administrative Agent a true copy of each such notice within five notice. Except as otherwise provided in this Agreement (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcyincluding Section 9.24(3)), reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Pledgor’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Pledgor shall notno Borrower shall, without the prior consent of LenderAdministrative Agent, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any the Ground Lease or modify, change, supplement, alter or amend any the Ground Lease, in any material respect, either orally or in writing, or (y) consent to, acquiesce in, or fail and each Borrower hereby assigns to object to, any attempt by any Fee OwnerAdministrative Agent for the benefit of the Lenders, as debtor in possession or by a trustee further security for the payment of the Debt and for the performance and observance of the Obligations of Borrower Parties under the Loan Documents, all of the rights, privileges and prerogatives of such Fee OwnerBorrower, as tenant under the Ground Lease, to sell or transfer surrender the Fee Estate with respect to any leasehold estate created by the Ground Lease free or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease in any material respect and clear any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease under section 363(f) in any material respect without the prior consent of the Bankruptcy Code Administrative Agent shall be void and of no force or otherwise. Pledgor shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Codeeffect. If Mortgage any Borrower shall default in the performance or observance of any material term, covenant or condition of any the Ground Lease on the part of Mortgage such Borrower, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of the Loan Documents and without waiving or releasing any Borrower Party from any of its obligations under any Loan Document, Administrative Agent shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor shall permit Lender to have the right right, but shall be under no obligation, upon reasonable notice to Borrowers, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the material terms, covenants and conditions of such the Ground Lease on the part of Mortgage Borrower such Borrower, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of Pledgorsuch Borrower, to the end that the rights of Mortgage such Borrower in, to and under such the Ground Lease shall be kept unimpaired as a result thereof and free from default; provided, however, that Lender even though the existence of such event of default or the nature thereof be questioned or denied by any Borrower or by any party on behalf of any Borrower. If Administrative Agent shall have no such obligation to make any payment or perform any act or take action in accordance with the preceding sentence, Administrative Agent will promptly notify Borrowers of the making of any such actionspayment, the performance of any such act, or the taking of any such action. If In any such event, subject to the rights of Tenants, subtenants and other occupants under the Leases or of parties to any Reciprocal Easement Agreement or any Permitted Encumbrance, Administrative Agent and any Person designated as Administrative Agent’s agent by Administrative Agent shall have, and are hereby granted, the right to peaceably enter upon the applicable Individual Property at any reasonable time, on reasonable notice and from time to time upon prior reasonable notice for the purpose of taking any such action. Administrative Agent may pay and expend such sums of money as Administrative Agent reasonably, in good faith, deems necessary for any such purpose and upon so doing shall be subrogated to any and all rights of the landlord under the applicable Ground Lease. Borrowers hereby agree to pay to Administrative Agent within five (5) Business Days after demand, all reasonable and actual out‑of‑pocket such sums so paid and expended by Administrative Agent, together with interest thereon from the day of such payment at the Default Rate. All sums so paid and expended by Administrative Agent and the interest thereon shall be secured by the legal operation and effect of the Mortgage and the other Loan Documents. If the ground lessor under the Ground Lease shall deliver to Lender Administrative Agent a copy of any notice of default sent by said ground lessor to any Borrower, as tenant under such the Ground Lease, such notice shall constitute full protection to Lender Administrative Agent for any action taken or omitted to be taken by LenderAdministrative Agent, in good faith, in reliance thereon. Pledgor Each Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each the Ground Lease upon demand by Lender Administrative Agent made at any time within one (1) year prior to of the last day upon which any such option may be exercised, and if any Borrower shall fail to do so, such Borrower hereby expressly authorizes and appoints Administrative Agent its attorney‑in‑fact to exercise any such option in the name of and upon behalf of such Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Except to the extent required by the terms of the Ground Lease, no Borrower will subordinate or consent to the subordination of the Ground Lease to any mortgage, security deed, lease or other interest on or in the landlord’s interest in all or any part of the applicable Individual Property, unless, in each such case, the written consent of Administrative Agent shall have been first had and obtained, which approval shall not unreasonably be withheld, conditioned or delayed.
Appears in 1 contract
The Ground Lease. (a) With respect to each Ground Lease, Pledgor Borrower shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums Ground Rent required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of each the Ground Lease, as and when such rent or other charge is payable, (ii) diligently perform and observe all of the terms, covenants and conditions of each the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed and observed, at least three (3) days prior to the expiration of any applicable grace period therein provided, and (iii) promptly notify Lender of the giving of any written notice by the landlord under the applicable Ground Lease Lessor to Mortgage Borrower of any default by Mortgage Borrower in the performance or observance of any of the terms, covenants or conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Pledgor’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receiptnotice. Pledgor Borrower shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any the Ground Lease or modify, change, supplement, alter or amend any the Ground Lease, in any material respect, either orally or in writing, or (y) consent to, acquiesce in, or fail and Borrower hereby assigns to object to, any attempt by any Fee OwnerLender, as debtor in possession or by a trustee further security for such Fee Ownerthe payment and performance of the Obligations and for the performance and observance of the terms, covenants and conditions of the Mortgage, this Agreement and the other Loan Documents, all of the rights, privileges and prerogatives of Borrower, as tenant under the Ground Lease, to sell or transfer surrender the Fee Estate with respect to any leasehold estate created by the Ground Lease free or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease in any material respect, and clear any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease under section 363(f) in any material respect without the prior consent of the Bankruptcy Code or otherwise. Pledgor Lender shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free be void and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, no force and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Codeeffect. If Mortgage Borrower shall default in the performance or observance of any material term, covenant or condition of any the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of the Mortgage, this Agreement and the other Loan Documents, and without waiving or releasing Borrower from any of its Obligations hereunder, Lender shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor shall permit Lender to have the right right, 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 material terms, covenants and conditions of such the Ground Lease on the part of Mortgage Borrower Borrower, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of PledgorBorrower, to the end that the rights of Mortgage Borrower in, to and under such the Ground Lease shall be kept unimpaired as a result thereof and free from default; provided, however, that even though the existence of such event of default or the nature thereof be questioned or denied by Borrower or by any party on behalf of Borrower. If Lender shall have no such obligation to make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Borrower three (3) days after the making of any such actionspayment, the performance of any such act or the taking of any such action, unless a shorter period is required to preserve the Ground Lease. If In any such event, subject to the rights of Tenants, subtenants and other occupants under the Leases, Lender and any Person designated as Lender’s agent by Lender shall have, and are hereby granted, the right to enter upon the Property at any reasonable time, on reasonable notice (which may be given verbally) and from time to time for the purpose of taking any such action. Lender may pay and expend such sums of money as Lender reasonably deems necessary for any such purpose and upon so doing shall be subrogated to any and all rights of the landlord under the applicable Ground Lease Lease. Borrower hereby agrees to pay to Lender within five (5) Business Days after demand, all such sums so paid and expended by Lender, together with interest thereon from the day of such payment at the Default Rate. All sums so paid and expended by Lender and the interest thereon shall be secured by the legal operation and effect of the Mortgage. If Ground Lessor shall deliver to Lender a copy of any notice of default sent by said lessor to Borrower, as tenant under such the Ground 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. Pledgor Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and if Borrower shall fail to do so, Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of the Borrower, which power of attorney shall be irrevocable, shall be deemed to be coupled with an interest with full power of substitution. Borrower will not subordinate or consent to the subordination of the Ground Lease to any mortgage, security deed, lease or other interest on or in Ground Lessor’s interest in all or any part of the Property, unless, in each such case, the written consent of Lender shall have been first had and obtained.
Appears in 1 contract
The Ground Lease. (a) With respect to each Ground Lease, Pledgor (i) Borrower shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of each Ground Lease, (ii) diligently perform and observe all of the material terms, covenants and conditions of each Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord under the applicable Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of PledgorBorrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Pledgor Borrower shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any Ground Lease or materially modify, change, supplement, alter or amend any Ground Lease, either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise. Pledgor shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code. If if Mortgage Borrower shall default in the performance or observance of any material term, covenant or condition of any Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor Lender shall permit Lender to have the right right, 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 Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of PledgorBorrower, to the end that the rights of Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actionsaction. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any notice of default under such Ground 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. Pledgor Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised.
Appears in 1 contract
The Ground Lease. (a) With respect to each Ground Lease, Pledgor Borrower shall cause Mortgage Borrower to (i) pay all rents, ---------------- additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of each the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of each the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord under the applicable Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender upon learning of any bankruptcy, reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Pledgor’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after Borrower's receipt. Pledgor Borrower shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any the Ground Lease or modify, change, supplement, alter or amend any the Ground Lease, in any material respect, either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise. Pledgor shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code. If Mortgage if Borrower shall default in the performance or observance of any material term, covenant or condition of any the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and Lender shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor shall permit Lender to have the right right, 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of PledgorBorrower, to the end that the rights of Mortgage Borrower in, to and under such the Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any notice of default under such the Ground 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, unless Lender's action constitutes gross negligence or willful misconduct. Pledgor Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each the Ground Lease upon demand by Lender made at any time within one six (16) year months prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
Appears in 1 contract
The Ground Lease. (a) With respect to each Ground Lease, Pledgor Borrower shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of each the Ground LeaseLease as and when such rent or other charge is payable (provided, however, that Borrower will not be required to pay the same if there are funds in the Tax, Insurance and Ground Rent Escrow Fund), (ii) diligently perform and observe in a timely manner all of the material terms, covenants and conditions of each the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed and observed, and (iii) promptly notify Lender of the giving of any written notice by the landlord lessor under the applicable Ground Lease to Mortgage Borrower of any default by Mortgage Borrower in the performance or observance of any of the terms, covenants or conditions of the Ground Lease on the part of Borrower, as tenant thereunder, to be performed or observed and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Pledgor’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receiptnotice. Pledgor Borrower shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any the Ground Lease or modify, change, supplement, alter or amend any the Ground Lease, in any material respect, either orally or in writing, or (y) consent to, acquiesce in, or fail and Borrower hereby assigns to object to, any attempt by any Fee OwnerLender, as debtor in possession or by a trustee further security for such Fee Ownerthe payment of the Debt and for the performance and observance of the terms, covenants and conditions of the Mortgage and this Agreement, all of the rights, privileges and prerogatives of Borrower, as tenant under the Ground Lease, to sell or transfer surrender the Fee Estate with respect to any leasehold estate created by the Ground Lease free or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease, in any material respect (such remedies only to be exercised by Lender after the occurrence and clear during the continuance of an Event of Default) and any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease under section 363(f) in any material respect without the prior consent of the Bankruptcy Code or otherwise. Pledgor Lender shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free be void and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, no force and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Codeeffect. If Mortgage Borrower shall default in the performance or observance of any material term, covenant or condition of any the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of the Mortgage and this Agreement and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor shall permit Lender to have the right right, but shall be under no obligation, upon five (5) Business Days notice to Borrower to pay any sums and to perform any act or take any action as may be appropriate to cause all of the material terms, covenants and conditions of such the Ground Lease on the part of Mortgage Borrower Borrower, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of PledgorBorrower, to the end that the rights of Mortgage Borrower in, to and under such the Ground Lease shall be kept unimpaired as a result thereof and free from default; provided, however, that even though the existence of such event of default or the nature thereof be questioned or denied by Borrower or by any party on behalf of Borrower. If Lender shall have no such obligation to make any payment (excluding payments of Ground Rents from the Tax, Insurance and Ground Rent Escrow Fund) or perform any act or take action in accordance with the preceding sentence, Lender will notify Borrower of the making of any such actionspayment, the performance of any such act, or the taking of any such action. If In any such event, subject to the terms of the Leases, Lender and any person designated as Lender's agent by Lender shall have, and are hereby granted, the right to enter upon Property at any reasonable time, on reasonable notice time and from time to time for the purpose of taking any such action. Lender may pay and expend such sums of money as Lender reasonably deems necessary for any such purpose and upon so doing shall be subrogated to any and all rights of the landlord under the applicable Ground Lease. Borrower hereby agrees to pay to Lender within five (5) Business Days after demand, all such sums so paid and expended by Lender (excluding payments of Ground Rents from the Tax, Insurance and Ground Rent Escrow Fund), together with interest thereon from the day of such payment at the Default Rate. All sums so paid and expended by Lender and the interest thereon shall be secured by the legal operation and effect of the Mortgage. If the lessor under the Ground Lease shall deliver to Lender a copy of any notice of default sent by said lessor to Borrower, as tenant under such the Ground 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. Pledgor shall cause Mortgage Borrower will not subordinate or consent to exercise each individual option, if any, to extend or renew the term subordination of each the Ground Lease upon demand by to any mortgage, security deed, lease or other interest on or in the landlord's interest in all or any part of the Ground Lease Parcel, unless, in each such case, the written consent of Lender made at any time within one (1) year prior to the last day upon shall have been first had and obtained, which any such option may approval shall not unreasonably be exercisedwithheld.
Appears in 1 contract
The Ground Lease. (a) With respect to each Ground Lease, Pledgor Borrower shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of each the Ground Lease, provided, however, that Borrower's obligation to directly pay Ground Rents shall be suspended for so long as Borrower complies with the terms and provisions of Section 7.6 hereof, (ii) diligently perform and observe all of the terms, covenants and conditions of each the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord under the applicable Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender upon learning of any bankruptcy, reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Pledgor’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after Borrower's receipt. Pledgor Borrower shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any the Ground Lease or modify, change, supplement, alter or amend any the Ground Lease, in any material respect, either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise. Pledgor shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code. If Mortgage if Borrower shall default in the performance or observance of any material term, covenant or condition of any the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and Lender shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor shall permit Lender to have the right right, 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of PledgorBorrower, to the end that the rights of Mortgage Borrower in, to and under such the Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any notice of default under such the Ground 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, unless Lender's action constitutes gross negligence or willful misconduct. Pledgor Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each the Ground Lease upon demand by Lender made at any time within one six (16) year months prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the - 91 - name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
Appears in 1 contract
The Ground Lease. (a) With respect to each Ground Lease, Pledgor Borrower shall cause Mortgage Borrower to (i) pay all rents, ---------------- additional rents and other sums required to be paid by Mortgage Borrower, as tenant under in accordance with, and pursuant to subject to, the provisions of each the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of each the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and (iii) promptly notify Lender of the giving of any notice by the landlord under the applicable Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Pledgor’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receiptnotice. Pledgor Borrower shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any the Ground Lease or modify, change, supplement, alter or amend any the Ground Lease, in any respect, either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise. Pledgor shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code. If Mortgage if Borrower shall default in the performance or observance of any term, covenant or condition of any the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and Lender shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor shall permit Lender to have the right right, 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 the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of PledgorBorrower, to the end that the rights of Mortgage Borrower in, to and under such the Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any notice of default under such the Ground 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. Pledgor Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
Appears in 1 contract
Samples: Agreement of Spreader, Consolidation and Modification of Mortgage (Sl Green Realty Corp)
The Ground Lease. (a) With respect to each Ground Lease, Pledgor shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of each Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of each Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any notice by the landlord under the applicable Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true 1. A copy of each such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Pledgor’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Pledgor shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any Ground Lease or modify, change, supplement, alter or amend any Ground Lease, either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f(which term shall also include the Primary Lease identified in the Ground Lease) is attached hereto and marked Exhibit "C."
2. During the term of this Lease, and so long as no event of default has occurred and is continuing hereunder, the Lessor, except as otherwise provided in this Lease, grants to the Lessee all the rights of the Bankruptcy Code Lessor under the Ground Lease to use the Land described in Exhibit "B" and all rights granted to the Lessor pursuant to the Ground Lease. Such grant, as limited by this Lease, is a part of the Demised Premises. This Lease is specifically made subject to all the terms and conditions of the Ground Lease.
3. Lessee agrees to undertake and perform each and every act required of the Lessor to be performed by the terms of the Ground Lease, including but not limited to the timely payment of all rental and other charges and fees thereunder, and not to do or otherwiseomit to do anything which will breach the terms thereof. Pledgor shall cause Mortgage Borrower Lessor agrees not to object do or omit to do anything which will breach the terms of the Ground Lease, and further agrees not to agree to any such attempt by such Fee Owner, as debtor change in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear terms of the Ground Lease or exercise or fail to exercise or waive or release any right, power or duty under section 363(fthe Ground Lease which will diminish the Lessee's right or increase its liability thereunder without the written consent of Lessee (including without limitation, the timely exercise of renewal and/or term extension rights). Lessor shall promptly provide Lessee with a copy (in accordance with Article XXV and also by facsimile) of all notices and correspondence relating to the Bankruptcy Code or otherwiseGround Lease which Lessor believes may adversely affect the rights of the Lessee in the Ground Lease granted hereby.
4. Notwithstanding the grant to the Lessee pursuant to Paragraph 2 of this Article IV of the rights of the Lessor in the Ground Lease and subject to Lessor's covenants and obligations under Paragraph 2 of this Article IV, the Lessor reserves unto itself the following rights under the Ground Lease:
(a) The right and power to cure any default under the Ground Lease, and in Lessor shall thereupon give notice of such event shall affirmatively assert and pursue its cure to the Lessee;
(b) The exclusive right to adequate protection under section 363(eexercise any right to renew or terminate the Ground Lease;
(c) The exclusive right to assign, sell, transfer, convey, mortgage, encumber or hypothecate any part or all of its right, title and interest in the Ground Lease subject, however, to this Lease;
(d) The exclusive right to amend, alter or modify in the manner provided in the Ground Lease any of the Bankruptcy Codeterms and conditions of the Ground Lease; and
(e) The exclusive right to waive or release any right granted to Lessor as Lessee under the Ground Lease. If Mortgage Borrower shall Provided that so long as Lessee is not in default in the performance or observance of any term, covenant or condition of any Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to hereunder beyond the expiration of all grace and/or cure periods applicable thereto under this Lease, the Lessor shall not exercise any applicable cure period provided thereunderright granted in this Paragraph in a manner that would diminish the Lessee's rights granted hereby or increase its obligations hereunder as reasonably determined by Lessee.
5. Lessee shall conduct itself and its use of the Demised Premises in a manner consistent with that required of Lessor (as Lessee under the Ground Lease), Pledgor and Lessee shall permit Lender indemnify and hold the Lessor harmless from and against any and all loss, cost, expense or liability (including reasonable attorney's fees) that may arise from or be connected with the failure of the Lessee to have do so (but only to the right extent such failure does not arise due to pay any sums and to perform any the act or take any action as may be appropriate omission of Lessor).
6. Each party agrees to cause all of the terms, covenants and conditions of such Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Pledgor, give immediate notice (together with a facsimile copy thereof) to the end that the rights other of Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any notice of default under such Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted threatened by the Port Authority of which either party obtains any actual knowledge, whether by written notice or otherwise, which might terminate or purport to terminate the Ground Lease.
7. If the Lessee shall fail to timely perform and undertake any acts or duties or shall fail to timely make any payments required of it to be taken by Lender, in good faith, in reliance thereon. Pledgor shall cause Mortgage Borrower to exercise each individual option, if any, to extend done or renew paid under the term of each Ground Lease upon demand by Lender made at and any time such failure continues beyond the expiration of all grace and/or cure periods applicable thereto under the Ground Lease, the Lessor may undertake and perform such acts or duties or make such payments, and the reasonable cost thereof shall become additional rental due hereunder within one fifteen (115) year days after Lessor invoices Lessee therefor.
8. If Lessor fails to timely perform and undertake any acts or duties or fails to make any payments required of it to be done or paid under the Ground Lease and any such failure continues beyond the expiration of all grace and/or cure periods applicable thereto under the Ground Lease, Lessee may, but shall not he obligated to, perform such acts or duties or make such payments, and Lessee may deduct the reasonable cost thereof from any future monetary obligation(s) of Lessee accruing hereunder.
9. Lessor shall indemnify and hold Lessee harmless from and against any default under either the Ground Lease or the Primary Lease which: (A) precedes this Lease; and/or (B) arises from the demise and/or occupancy of the Demised Premises prior to the last day upon approval of the Port Authority (or the demising party under the Primary Lease) of this Lease.
10. Notwithstanding anything herein to the contrary, Lessee shall not be bound to the following provisions of the Ground Lease: Article II (Lease Term); the obligation to make any improvements and Lessee shall not be required to remove any improvements at the end of the term hereof as contemplated in Section 4.2 (Improvements); Section 5.8 (Insurance); and Article VI (Termination), except Lessee shall not act or fail to act in any manner which would be a breach of the Ground Lease.
11. Notwithstanding anything to the contrary contained in this Lease, Lessor agrees that:
(a) Lessor shall indemnify and hold Lessee harmless from and against any and all loss, cost, expense or liability (including reasonable attorneys’ fees) incurred by Lessee that may arise from or be connected with any claim or demand made or action taken against Lessee by the lessor under the Ground Lease as a result of any act (including an act of negligence or willful misconduct) or omission of Lessor, its employees, contractors, agents or invitees except to the extent any such option act or omission was occasioned in whole or in part by any act or omission of Lessee.
(b) Lessee shall not be liable for the remediation of, or any loss, cost, damage or expense arising out of, any environmental condition existing at the Demised Premises prior to the Commencement Date.
(c) Lessee shall not be liable for any of the obligations and liabilities of the lessee under the Ground Lease that arise under Sections 5.4, 5.5 or 5.7 of the Ground Lease except to the extent (and only to the extent) any of such obligations or liabilities arise out of Lessee’s use, occupancy, maintenance or repair of or alterations to the Demised Premises and such use, occupancy, maintenance, repair or alteration is in violation of applicable local, state or federal laws and regulations including, without limitation, environmental laws and regulations. Lessor shall indemnify and hold Lessee harmless from and against any and all loss, cost, expense or liability (including reasonable attorneys’ fees) incurred by Lessee that may arise from or be exercisedconnected with any claim or demand made or action taken against Lessee by the lessor under the Ground Lease pursuant to any of said Sections 5.4, 5.5 and 5.7 when Lessee has no liability under any of said Sections pursuant to the terms of this subparagraph (c).
(d) Lessee shall not be responsible for paying the cost of any Site Assessment requested by the lessor under the Ground Lease pursuant to Section 5.6 of the Ground Lease unless such Site Assessment determines that there are Hazardous Materials or Hazardous Materials contamination (as said terms are used and defined in the Ground Lease) on the Demised Premises in violation of any environmental laws and regulations and the presence of such Hazardous Materials or Hazardous Materials contamination in violation of any environmental laws and regulations was occasioned by any act or omission of Lessee.
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Samples: Lease Agreement (Lmi Aerospace Inc)
The Ground Lease. The provisions of this Article 28 shall apply and be controlling notwithstanding anything to the contrary contained herein if Lessor owns its interest in the Land or Improvements through a ground or building lease. All of the terms of the lease or leases (aif any) With respect described in Exhibit "A" attached hereto (collectively referred to herein as the "GROUND LEASE") are hereby incorporated into and made a part of this Lease as if stated at length herein. The parties hereto agree that wherever the word "LAND" appears in this Lease, the same shall be deemed to mean the premises demised by the Ground Lease. Lessee shall have the benefit of each and every covenant and agreement made by the lessor under the Ground Lease ("GROUND LESSOR"), to Lessor under the Ground Lease and Lessee accepts this Lease subject to, all of the terms, covenants, conditions and agreements contained in the Ground Lease. In the event that the consent of the Ground Lessor is required in connection with the transactions contemplated by the Master Hotel Agreement and/or this Lease, and such consent has not been obtained effective as of the Commencement Date, then Lessor shall have the option to terminate this Lease, without payment of a Termination Fee or other premium or penalty, immediately (and effective as of the earliest date required to avoid any default under the Ground Lease by Lessor) upon (i) notice to Lessee that the Ground Lessor has declared Lessor to be in default under the Ground Lease and (ii) execution of a management agreement with Lessee (or its Manager, at Lessee's request) upon such terms as are required to provide Lessee (or Manager, as the case may be) with the same Net Economic Benefit (as defined in the Master Hotel Agreement) as would have this Lease in accordance with its terms, other than this sentence. Lessor shall pay directly to Ground Lessor all rent due from Lessor to Ground Lessor under the terms of the Ground Lease when due. In the event of conflicts between the terms of this Lease and the terms of the Ground Lease, Pledgor the terms of the Ground Lease shall cause Mortgage Borrower control. To the extent any of the provisions of the Ground Lease impose a greater obligation on Lessor than the corresponding provisions of this Lease, then Lessor shall be obligated to comply with the provisions of the Ground Lease (other than obligations for which Lessee is specifically responsible hereunder). To the extent any of the provisions of the Ground Lease impose a greater obligation on Lessee than the corresponding provisions of this Lease, then Lessee shall be obligated to comply with the provisions of the Ground Lease (other than obligations for which Lessor is specifically responsible hereunder). Any obligations set forth in the Ground Lease not specifically allocated by this Lease shall be apportioned according to the relative responsibilities of Lessor and Lessee hereunder. Notwithstanding the generality of the foregoing, Lessor and Lessee agree that nothing in this Lease shall be deemed to affect or modify any requirements of the Ground Lease with regard to (i) pay all rents, additional rents necessary consents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to approvals of the provisions of each Ground Lease, Lessor or (ii) diligently perform requirements of records retention as set forth in the Ground Lease. Lessee and observe all Lessor covenant and agree with each other that neither shall do anything which shall have the effect of creating a breach on the part of Lessor, its successors and assigns, of any of the terms, covenants and conditions of each the Ground Lease. Notwithstanding the foregoing, in the event that Ground Lessor shall fail or refuse to comply with any of the respective provisions of the Ground Lease despite Lessor's good faith reasonable efforts to obtain such compliance and Lessor is not in default under the Ground Lease, Lessor shall have no liability on account of any such failure or refusal, provided that Lessee shall have the option to request that Lessor assign to Lessee, and Lessee shall have, the right to exercise in its own name (and not that of Lessor) all of the rights to enforce compliance on the part of Mortgage BorrowerGround Lessor as are available to Lessor. Lessor hereby agrees to cooperate with and execute and deliver, as tenant thereunderall at Lessee's expense, (iii) promptly notify Lender of the giving of any notice all instruments and information reasonably required by the landlord under the applicable Ground Lease Lessee in order to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each enforce such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Pledgor’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receiptcompliance. Pledgor shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any Ground Lease or modify, change, supplement, alter or amend any Ground Lease, either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise. Pledgor shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code. If Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of any Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor shall permit Lender to have the right 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 Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Pledgor, to the end that the rights of Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any notice of default under such Ground 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. Pledgor shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised.91
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The Ground Lease. The provisions of this Article 28 shall apply and be controlling notwithstanding anything to the contrary contained herein if Lessor owns its interest in the Land or Improvements through a ground or building lease. All of the terms of the lease or leases (aif any) With respect described in Exhibit "A" attached hereto (collectively referred to herein as the "GROUND LEASE") are hereby incorporated into and made a part of this Lease as if stated at -82- 91 length herein. The parties hereto agree that wherever the word "LAND" appears in this Lease, the same shall be deemed to mean the premises demised by the Ground Lease. Lessee shall have the benefit of each and every covenant and agreement made by the lessor under the Ground Lease ("GROUND LESSOR"), to Lessor under the Ground Lease and Lessee accepts this Lease subject to, all of the terms, covenants, conditions and agreements contained in the Ground Lease. In the event that the consent of the Ground Lessor is required in connection with the transactions contemplated by the Master Hotel Agreement and/or this Lease, and such consent has not been obtained effective as of the Commencement Date, then Lessor shall have the option to terminate this Lease, without payment of a Termination Fee or other premium or penalty, immediately (and effective as of the earliest date required to avoid any default under the Ground Lease by Lessor) upon (i) notice to Lessee that the Ground Lessor has declared Lessor to be in default under the Ground Lease and (ii) execution of a management agreement with Lessee (or its Manager, at Lessee's request) upon such terms as are required to provide Lessee (or Manager, as the case may be) with the same Net Economic Benefit (as defined in the Master Hotel Agreement) as would have this Lease in accordance with its terms, other than this sentence. Lessor shall pay directly to Ground Lessor all rent due from Lessor to Ground Lessor under the terms of the Ground Lease when due. In the event of conflicts between the terms of this Lease and the terms of the Ground Lease, Pledgor the terms of the Ground Lease shall cause Mortgage Borrower control. To the extent any of the provisions of the Ground Lease impose a greater obligation on Lessor than the corresponding provisions of this Lease, then Lessor shall be obligated to comply with the provisions of the Ground Lease (other than obligations for which Lessee is specifically responsible hereunder). To the extent any of the provisions of the Ground Lease impose a greater obligation on Lessee than the corresponding provisions of this Lease, then Lessee shall be obligated to comply with the provisions of the Ground Lease (other than obligations for which Lessor is specifically responsible hereunder). Any obligations set forth in the Ground Lease not specifically allocated by this Lease shall be apportioned according to the relative responsibilities of Lessor and Lessee hereunder. Notwithstanding the generality of the foregoing, Lessor and Lessee agree that nothing in this Lease shall be deemed to affect or modify any requirements of the Ground Lease with regard to (i) pay all rents, additional rents necessary consents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to approvals of the provisions of each Ground Lease, Lessor or (ii) diligently perform requirements of records retention as set forth in the Ground Lease. Lessee and observe all Lessor covenant and agree with each other that neither shall do anything which shall have the effect of creating a breach on the part of Lessor, its successors and assigns, of any of the terms, covenants and conditions of each the Ground Lease. Notwithstanding the foregoing, in the event that Ground Lessor shall fail or refuse to comply with any of the respective provisions of the Ground Lease despite Lessor's good faith reasonable efforts to obtain such compliance and Lessor is not in default under the Ground Lease, Lessor shall have no liability on account of any such failure or refusal, provided that Lessee shall have the option to request that Lessor assign to Lessee, and Lessee shall have, the right to exercise in its own name (and not that of Lessor) all of the rights to enforce compliance on the part of Mortgage BorrowerGround Lessor as are available to Lessor. Lessor hereby agrees to cooperate with and execute and deliver, as tenant thereunderall at Lessee's expense, (iii) promptly notify Lender of the giving of any notice all instruments and information reasonably required by the landlord under the applicable Ground Lease Lessee in order to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each enforce such notice within five (5) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Pledgor’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Pledgor shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any Ground Lease or modify, change, supplement, alter or amend any Ground Lease, either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise. Pledgor shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code. If Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of any Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor shall permit Lender to have the right 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 Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Pledgor, to the end that the rights of Mortgage Borrower in, to and under such Ground Lease shall be kept unimpaired and free from default; provided, however, that Lender shall have no such obligation to perform any such actions. If the landlord under the applicable Ground Lease shall deliver to Lender a copy of any notice of default under such Ground 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. Pledgor shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercisedcompliance.
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The Ground Lease. (a) With respect to each The Portsmouth Borrower as lessee under the Ground Lease, Pledgor Lease (“Ground Tenant”) shall cause Mortgage Borrower to (i) pay all rents, additional rents and other sums Ground Rent required to be paid by Mortgage BorrowerGround Tenant, as tenant under and pursuant to the provisions of each the Ground Lease, as and when such rent or other charge is payable, (ii) diligently perform and observe all of the terms, covenants and conditions of each the Ground Lease on the part of Mortgage BorrowerGround Tenant, as tenant thereunder, to be performed and observed, prior to the expiration of any applicable grace period therein provided, and (iii) promptly notify Lender of the giving of any written notice by the landlord under the applicable Ground Lease Lessor to Mortgage Borrower Ground Tenant of any default by Mortgage BorrowerGround Tenant in the performance or observance of any of the terms, covenants or conditions of the Ground Lease on the part of Ground Tenant, as tenant thereunder, to be performed or observed, and deliver to Lender a true copy of each such notice within five (5notice. Subject to Section 5.2.11(b) Business Days of receipt and (iv) promptly notify Lender of any bankruptcybelow, reorganization or insolvency of the landlord under the applicable Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Pledgor’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Pledgor in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Pledgor Tenant shall not, without the prior consent of Lender, (x) cause Mortgage Borrower to surrender the leasehold estate created by the applicable Ground Lease or terminate or cancel any the Ground Lease or modify, change, supplement, alter or amend any the Ground Lease, in any material respect, either orally or in writing, or (y) consent to, acquiesce in, or fail and Ground Tenant hereby assigns to object to, any attempt by any Fee OwnerLender, as debtor in possession or by a trustee further security for such Fee Ownerthe payment and performance of the Obligations and for the performance and observance of the terms, covenants and conditions of the related Mortgage, this Agreement and the other Loan Documents, all of the rights, privileges and prerogatives of Ground Tenant, as tenant under the Ground Lease, to sell or transfer surrender the Fee Estate with respect to any leasehold estate created by the Ground Lease free or to terminate, cancel, modify, change, supplement, alter or amend the Ground Lease in any material respect, and clear any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease under section 363(f) in any material adverse respect without the prior consent of the Bankruptcy Code or otherwise. Pledgor Lender shall cause Mortgage Borrower to object to any such attempt by such Fee Owner, as debtor in possession or by a trustee for such Fee Owner, to sell or transfer the Fee Estate with respect to any Ground Lease free be void and clear of the Ground Lease under section 363(f) of the Bankruptcy Code or otherwise, no force and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Codeeffect. If Mortgage Borrower Ground Tenant shall default in the performance or observance of any material term, covenant or condition of any the Ground Lease on the part of Mortgage BorrowerGround Tenant, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of the related Mortgage, this Agreement and the other Loan Documents, and without waiving or releasing Borrower from any of its Obligations hereunder, Lender shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Pledgor shall permit Lender to have the right right, 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 material terms, covenants and conditions of such the Ground Lease on the part of Mortgage Borrower Ground Tenant, as tenant thereunder, to be performed or observed or to be promptly performed or observed on behalf of PledgorGround Tenant, to the end that the rights of Mortgage Borrower Ground Tenant in, to and under such the Ground Lease shall be kept unimpaired as a result thereof and free from default; provided, however, that even though the existence of such event of default or the nature thereof be questioned or denied by Ground Tenant or by any party on behalf of Ground Tenant. If Lender shall have no such obligation to make any payment or perform any act or take action in accordance with the preceding sentence, Lender will notify Ground Tenant three (3) days after the making of any such actionspayment, the performance of any such act or the taking of any such action, unless a shorter period is required to preserve the Ground Lease. In any such event, subject to the rights of Tenants, subtenants and other occupants under the Leases or of parties to any reciprocal easement agreement, Lender and any Person designated as Lender’s agent by Lender shall have, and are hereby granted, the right to enter upon the related Individual Property at any reasonable time, on reasonable notice (which may be given verbally) and from time to time for the purpose of taking any such action. Lender may pay and expend such sums of money as Lender reasonably deems necessary for any such purpose and upon so doing shall be subrogated to any and all rights of Ground Lessor under the Ground Lease. Ground Tenant hereby agrees to pay to Lender within five (5) days after demand, all such sums so paid and expended by Lender, together with interest thereon from the day of such payment at the Default Rate. All sums so paid and expended by Lender and the interest thereon shall be secured by the legal operation and effect of the related Mortgage. If the landlord under the applicable Ground Lease Lessor shall deliver to Lender a copy of any notice of default sent by Ground Lessor to Ground Tenant, as tenant under such the Ground 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. Pledgor Ground Tenant shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of each the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and if Ground Tenant shall fail to do so, Ground Tenant hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Ground Tenant, which power of attorney shall be irrevocable, shall be deemed to be coupled with an interest with full power of substitution. Ground Tenant will not subordinate or consent to the subordination of the Ground Lease to any mortgage, security deed, lease or other interest on or in Ground Lessor’s interest in all or any part of the Individual Property, unless, in each such case, the written consent of Lender shall have been first had and obtained.
(b) It is hereby agreed that the fee estate in the Portsmouth Property and the leasehold estates created by the Ground Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of said estates in the XXX of the Portsmouth Property, Portsmouth Borrower or a third party, whether by purchase or otherwise, and Lender shall continue to have and enjoy all of the rights and privileges of the Lender as to the separate estates; provided that the fee and leasehold estates of the Portsmouth Property may be merged at the option of Borrower, subject to this Section 5.2.11(b) and provided Lender receives a first priority security interest in the fee estate subject to no title exceptions other than Permitted Encumbrances and, which security interest shall not be subject or subordinate to the Ground Lease. If Portsmouth Borrower acquires the fee title or any other estate, title or interest in the portion of the Portsmouth Property demised by the Ground Lease, or any part thereof, the lien of the Mortgage relating the Portsmouth Property shall attach to, cover and be a lien upon such acquired estate, title or interest and same shall thereupon be and become a part of the Portsmouth Property with the same force and effect as if specifically encumbered herein. Borrower agrees to execute all instruments and documents which Lender may reasonably require to ratify, confirm and further evidence Lender’s lien on the acquired estate, title or interest for the full value of the Portsmouth Property. Furthermore, provided an Event of Default is continuing, Borrower hereby appoints Lender its true and lawful attorney-in-fact to execute and deliver all such instruments and documents in the name and on behalf of Borrower. This power, being coupled with an interest, shall be irrevocable as long as the Debt remains unpaid. Portsmouth Borrower may purchase any or all of the fee estate in the Portsmouth Property upon ten (10) Business Days’ prior notice to Lender, provided the fee estate in the Portsmouth Property is acquired with funds contributed to Borrower as equity, and not with borrowed funds, and such acquisition does not have a Material Adverse Effect.
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