The Lease. (A) Seller has delivered to Purchaser a true, correct and complete copy of the Lease; (B) The Lease is in full force and effect, has not been amended, modified or supplemented, and constitutes the entire agreement between the Company and the Tenant concerning the Property; (C) There is no default by the Company or Tenant under the Lease or, to the best of Seller’s knowledge, there is no condition or event that, with the passage of time or giving of notice, or both, would constitute such a default. The Tenant is not entitled to any reduction in or refund of, and has no counterclaim or offset against, and is not otherwise disputing, any rents or other charges paid, payable or to become payable by the Tenant under the Lease or any of the Tenant’s other obligations under the Lease. There are no options or rights to renew, extend or terminate the Lease, except as expressly set forth in the Lease. The Tenant has not indicated to Company or Seller its intent to terminate or attempt to renegotiate its Lease prior to expiration of the term of such Lease. To the knowledge of Seller, the Tenant has not entered into any assignment or sublease with respect to the Lease; (D) Except as disclosed on Exhibit C, Tenant has not provided any security deposit in connection with the Lease; (E) There are no free rent, operating expense abatements, incomplete tenant improvements, rebates, allowances, or other unexpired concessions or landlord obligations under the Lease; (F) Other than the Lease, the Company has not entered into any leases or other occupancy agreements affecting all or any portion of the Property, and there are no tenants or other occupants of all or any part of the Property other than the Tenant under the Lease; (G) To the knowledge of Seller, the Tenant is not the subject of any bankruptcy, reorganization, insolvency or similar proceedings; (a) The commencement date of the Lease was ; the rent commencement date of the Lease was ; and the expiration date of the initial term of the Lease is ; (b) there are no options remaining unexercised on the part of the Tenant to renew the Lease except as follows (if none, so state): ; and (c) monthly basic rent is payable as and when set forth in the Lease; (a) Tenant has unconditionally taken possession of and is occupying all of the Property (to the extent that the Property is to be delivered to the Tenant pursuant to the Lease); (b) Landlord has completed all work to be performed by Landlord under the Lease in a good and workmanlike manner and in accordance with the Lease; (c) Landlord has not received any notice from Tenant of any defects in the Property or any related improvements or facilities; (d) Tenant has not delivered any notice alleging any defect or deficiency in the work relating to the Property or any related improvements or facilities; and (e) Landlord has satisfied any and all commitments made to induce Tenant to enter in to the Lease;
Appears in 3 contracts
Samples: Purchase Option Agreement (STAG Industrial, Inc.), Purchase Option Agreement (STAG Industrial, Inc.), Purchase Option Agreement (STAG Industrial, Inc.)
The Lease. (Aa) Seller has delivered to Purchaser a trueAs between Sublessor and Sublessee, correct and complete copy all of the Lease;
Articles of the Lease are incorporated into this Sublease as if fully set forth in this Sublease, except the following: Sections l,2,5,6,7(a) and (B) The d), 8, 15, 49, and 55. Where applicable, references in the Lease to Landlord will mean Sublessor and to Tenant will mean Sublessee, provided, however, Sublessor shall not be released thereby. Sublessor represents and warrants that it has full right, power and authority under the Lease to enter into this Sublease, subject to Lessor’s consent as provided therein. Sublessor further represents and warrants that the Lease is in full force and effect, effect and has not been amendedmodified, modified amended or supplemented, terminated except as stated in the Assignment. The copy of the Lease and constitutes Assignment attached hereto is a complete and accurate copy of the entire agreement between the Company Lease and the Tenant concerning the Property;
(C) There Assignment. Sublessor also represents and warrants that Sublessor is no not in default by the Company or Tenant under the terms of the Lease or, to the best of Seller’s knowledge, there is and no condition or event that, exists which with the giving of notice or passage of time or giving of noticetime, or both, would constitute such be a default. The Tenant is not entitled to any reduction in or refund of, and has no counterclaim or offset against, and is not otherwise disputing, any rents or other charges paid, payable or to become payable by the Tenant under the Lease or any of the Tenant’s other obligations default under the Lease. There are no options or rights to renew, extend Sublessor shall not modify or terminate the Leaseterms of the Lease without the written consent of the Sublessee.
(b) Sublessee acknowledges that it has reviewed and is familiar with all of the terms, except as covenants and conditions of the Lease that are incorporated herein and made a part hereof. Sublessee assumes and agrees to perform, observe and comply with all of the terms, covenants and conditions on the Lessee’s part to be performed, observed and complied with under the Lease and Assignment. This Sublease is expressly set forth in made subject and subordinate to all of the terms, covenants and conditions of the Lease. The Tenant has not indicated to Company or Seller its intent to terminate or attempt to renegotiate its Lease prior to expiration In the event of a conflict between the terms of the term of such Lease. To the knowledge of SellerLease and this Sublease, the Tenant has not entered into terms of the Lease as modified by the Assignment shall control. At all times where consent is required of the Lessor under the Lease for an act of Sublessor as Tenant, consent shall be required by Lessor for such act by Sublessee.
(c) Sublessor shall deliver a copy of any assignment or sublease notice of default received by Sublessor from Lessor with respect to the Lease;
(D) Except as disclosed on Exhibit C, Tenant has not provided Lease within two days of receipt thereof. Sublessor shall provide Sublessee an opportunity to cure any security deposit such default within the cure period proved in connection with the Lease;
(E) There are no free rent, operating expense abatementsif any, incomplete tenant improvements, rebates, allowances, or other unexpired concessions or landlord obligations but Sublessee shall not be obligated to do so. Nothing herein shall affect the rights of Lessor under the Lease;
(F) Other than the Lease, the Company has not entered into any leases or other occupancy agreements affecting all or any portion of the Property, and there are no tenants or other occupants of all or any part of the Property other than the Tenant under the Lease;
(G) To the knowledge of Seller, the Tenant is not the subject of any bankruptcy, reorganization, insolvency or similar proceedings;
(a) The commencement date of the Lease was ; the rent commencement date of the Lease was ; and the expiration date of the initial term of the Lease is ; (b) there are no options remaining unexercised on the part of the Tenant to renew the Lease except as follows (if none, so state): ; and (c) monthly basic rent is payable as and when set forth in the Lease;
(a) Tenant has unconditionally taken possession of and is occupying all of the Property (to the extent that the Property is to be delivered to the Tenant pursuant to the Lease); (b) Landlord has completed all work to be performed by Landlord under the Lease in a good and workmanlike manner and in accordance with the Lease; (c) Landlord has not received any notice from Tenant of any defects in the Property or any related improvements or facilities; (d) Tenant has not delivered any notice alleging any defect or deficiency in the work relating to the Property or any related improvements or facilities; and (e) Landlord has satisfied any and all commitments made to induce Tenant to enter in to the Lease;.
Appears in 2 contracts
Samples: Lease Agreement (Argos Therapeutics Inc), Lease Agreement (Argos Therapeutics Inc)
The Lease. Mortgagor represents and warrants and agrees as of the date hereof as follows:
(Aa) Seller Mortgagor has delivered to Purchaser Mortgagee a true, correct and complete copy of the Subject Lease;, including all amendments and modifications thereto existing as of the date hereof.
(Bb) The Lease is in full force and effectExcept as expressly permitted under the Loan Agreement, has Mortgagor shall not been amended, modified enter into any new leases of all or supplemented, and constitutes any portion of the entire agreement between the Company and the Tenant concerning the Property;Mortgaged Property except with Mortgagee’s prior written consent which consent shall not be unreasonably withheld or delayed.
(Cc) There is no No material default by the Company or Tenant now exists under the Lease or, to the best of SellerSubject Lease. To Mortgagor’s knowledge, there is no condition or event has occurred that, with the giving of notice or the passage of time or giving of notice, or both, would constitute such a default. The Tenant is material default or would entitle Mortgagor or any other party under the Subject Lease to cancel the same.
(d) Except for this Mortgage or other assignments in favor of Mortgagee, Mortgagor has not entitled to executed any reduction assignment or pledge of the Subject Lease or of Mortgagor’s right, title and interest in the same.
(e) This Mortgage does not constitute a violation or refund ofdefault under the Subject Lease, and has no counterclaim or offset againstis, and is not otherwise disputingshall at all times constitute a valid lien (subject only to matters permitted by this Mortgage) on Mortgagor’s interests in the Subject Lease.
(f) Mortgagor shall perform and observe, any rents or other charges paidin all material respects, payable or all terms, covenants, and conditions to become payable the extent required to be performed and observed by the Tenant Mortgagor as Lessee under the Lease or any of Subject Lease. Mortgagor shall enforce, in all material respects, the TenantLessor’s other obligations under the Subject Lease. There are no options .
(g) Mortgagor shall promptly deliver to Mortgagee a copy of any notice of default or rights to renew, extend or terminate termination that it receives from the Lease, except as expressly set forth in the Lease. The Tenant has not indicated to Company or Seller its intent to terminate or attempt to renegotiate its Lease prior to expiration of the term of such Lease. To the knowledge of Seller, the Tenant has not entered into any assignment or sublease Lessor with respect to the Subject Lease;. Mortgagor shall promptly notify Mortgagee of any written request that either party to the Subject Lease makes for arbitration pursuant to the Subject Lease and the guidelines of the institution of any such arbitration. Mortgagor shall promptly deliver to Mortgagee a copy of the arbitrators’ written determination in each such arbitration. Mortgagee may participate in any such arbitration in such manner as Mortgagee shall determine appropriate following an Event of Default and during the continuance thereof, to the exclusion of Mortgagor if so determined by Mortgagee in its reasonable discretion.
(Dh) Except Subject to the terms of the Loan Agreement, Mortgagor shall not, without Mortgagee’s consent, (i) enter into any modification or amendment of the Subject Lease or (ii) consent to any action requested by Lessor or any third party as disclosed required pursuant to the terms and provisions of such Lease, in each case, if the same would have a material adverse effect on Exhibit C, Tenant has not provided any security deposit in connection with Mortgagor’s day-to-day operations at the Lease;Mortgaged Property.
(Ei) There Mortgagor’s obligations under this Mortgage are no free rent, operating expense abatements, incomplete tenant improvements, rebates, allowances, or other unexpired concessions or landlord independent of and in addition to Mortgagor’s obligations under the Subject Lease;
(F) Other than the Lease, the Company has not entered into . Nothing in this Mortgage shall be construed to require Mortgagor or Mortgagee to take or omit to take any leases or other occupancy agreements affecting all or any portion of the Property, and there are no tenants or other occupants of all or any part of the Property other than the Tenant action that would cause a default under the Subject Lease;
(G) To the knowledge of Seller, the Tenant is not the subject of any bankruptcy, reorganization, insolvency or similar proceedings;
(a) The commencement date of the Lease was ; the rent commencement date of the Lease was ; and the expiration date of the initial term of the Lease is ; (b) there are no options remaining unexercised on the part of the Tenant to renew the Lease except as follows (if none, so state): ; and (c) monthly basic rent is payable as and when set forth in the Lease;
(a) Tenant has unconditionally taken possession of and is occupying all of the Property (to the extent that the Property is to be delivered to the Tenant pursuant to the Lease); (b) Landlord has completed all work to be performed by Landlord under the Lease in a good and workmanlike manner and in accordance with the Lease; (c) Landlord has not received any notice from Tenant of any defects in the Property or any related improvements or facilities; (d) Tenant has not delivered any notice alleging any defect or deficiency in the work relating to the Property or any related improvements or facilities; and (e) Landlord has satisfied any and all commitments made to induce Tenant to enter in to the Lease;.
Appears in 1 contract
The Lease. (A) Seller has delivered to Purchaser a true, correct and complete copy of the Lease;
(B) The Lease is in full force and effect, has not been amended, modified or supplemented, and constitutes the entire agreement between the Company and the Tenant concerning the Property;
(C) There is no default by the Company or Tenant under the Lease or, to the best of Seller’s knowledge, there is no condition or event that, with the passage of time or giving of notice, or both, would constitute such a default. The Tenant is not entitled to any reduction in or refund of, and has no counterclaim or offset against, and is not otherwise disputing, any rents or other charges paid, payable or to become payable by the Tenant under the Lease or any of the Tenant’s other obligations under the Lease. There are no options or rights to renew, extend or terminate the Lease, except as expressly set forth in the Lease. The Tenant has not indicated to Company or Seller its intent to terminate or attempt to renegotiate its Lease prior to expiration of the term of such Lease. To the knowledge of Seller, the Tenant has not entered into any assignment or sublease with respect to the Lease;
(D) Except as disclosed on Exhibit C, Tenant has not provided any security deposit in connection with the Lease;
(E) There are no free rent, operating expense abatements, incomplete tenant improvements, rebates, allowances, or other unexpired concessions or landlord obligations under the Lease;
(F) Other than the Lease, the Company has not entered into any leases or other occupancy agreements affecting all or any portion of the Property, and there are no tenants or other occupants of all or any part of the Property other than the Tenant under the Lease;
(G) To the knowledge of Seller, the Tenant is not the subject of any bankruptcy, reorganization, insolvency or similar proceedings;
(a) The commencement date Seller shall perform (i) all obligations of the Lease was ; the rent commencement date of the Lease was ; and the expiration date of the initial term of the Lease is ; (b) there are no options remaining unexercised on the part of the Tenant to renew the Lease except as follows (if none, so state): ; and (c) monthly basic rent is payable as and when set forth in the Lease;
(a) Tenant has unconditionally taken possession of and is occupying all of the Property (to the extent that the Property is to be delivered to the Tenant pursuant to the Lease); (b) Landlord has completed all work to be performed by Landlord under the Lease in a good to be performed on or before the Closing, and workmanlike manner (ii) all of Seller's Construction Obligations (hereinafter defined) to be performed before or after the Closing Date; and in accordance with Seller shall indemnify and hold Buyer harmless from and against all costs, expenses, claims, demands and liabilities which (1) accrue or arise prior to the Closing Date under the Lease; , and (2) accrue or arise at any time, before or after the Closing Date, from any failure to perform Seller's Construction Obligations. Buyer shall perform all obligations of the Landlord under the Lease to be performed after the Closing Date except Seller's Construction Obligations, and Buyer shall indemnify and hold Seller harmless from and against all costs, expenses, claims, demands and liabilities which accrue or arise after the Closing Date under the Lease except those which accrue or arise from any failure to perform Seller's Construction Obligations.
(b) All obligations of the Landlord under the Lease relating to construction, completion and delivery to the Tenant of the building and all other improvements to be constructed by the Landlord under the Lease (collectively, the "Improvements") and delivery to Tenant of construction-related items are herein collectively called "Seller's Construction Obligations." Seller shall be solely responsible, at Seller's sole cost and expense, for performance and completion of Seller's Construction Obligations, whether performed or to be performed before or after the Closing Date. Seller covenants and agrees with Buyer that Seller will diligently and timely perform all of Seller's Construction Obligations and will pay all costs and expenses thereof.
(c) Landlord has not received any notice As soon as possible after completion of the Improvements, Seller shall deliver to Buyer and the Title Company, final, unconditional lien waivers for all work and materials incorporated into the Improvements and such other documentation as may be reasonably required by Escrow Agent to allow for the deletion of the mechanics' lien exception from Tenant of any defects in the Property or any related improvements or facilities; Title Policy (defined below).
(d) Tenant has not delivered any notice alleging any defect or deficiency in the work relating Seller agrees to the Property or any related improvements or facilities; and (e) Landlord has satisfied any and assign all commitments made construction warranties to induce Tenant to enter in to the Lease;Buyer.
Appears in 1 contract
Samples: Real Estate Contract (Cole Credit Property Trust II Inc)
The Lease. (A) Seller has delivered On the Repricing Date Lessees shall deliver the Offering Memorandum to Purchaser a trueInitial Note Purchaser, correct Owner Participant, Owner Trustee and complete copy Indenture Trustee. On the Repricing Date, Owner Trustee shall notify Indenture Trustee of the Lease;Reset Rate and the Reset Date. On or prior to the Reset Date, Lessees and Owner Trustee shall execute and deliver a supplement to the Lease reflecting the adjustments described in the preceding paragraph, and Owner Trustee and Indenture Trustee shall execute and deliver a supplement to the Indenture reflecting such adjustments and setting forth the Reset Rate, in each case effective on the Reset Date. If Initial Note Purchaser and Lessees, acting on behalf of Owner Trustee, fail to set a Repricing Date within 10 Business Days after an initial Remarketing Date, then Initial Note Purchaser and Lessees, acting on behalf of Owner Trustee, may set one or more other Remarketing Dates in the manner described in the first paragraph of this Section 10.01 until the earlier to ------------- occur of the Reset Date or the day which is 120 days after the Delivery Date.
Section 10.02. Resales More than 120 Days After the Delivery Date. --------------------------------------------------
(Ba) The Lease is In the event that no Reset Rate has been established on or prior to the 120th day following the Delivery Date, on any date thereafter Initial Note Purchaser may in full force its sole discretion resell some or all of the Notes in one or more Unilateral Resales that are exempt from the registration requirements of the Securities Act; provided that only the first such Unilateral Resale shall -------- result in a reset of the interest rate on the Notes. In connection with the first such Unilateral Resale, each of the parties to this Participation Agreement agrees to effectuate the reset of the interest rate upon such Unilateral Resale on the terms and effectsubject to the conditions set forth in this Participation Agreement (including Annex A hereto) and, has not been amendedif such resale shall be, modified or supplementedat the request of Initial Note Purchaser, and constitutes in accordance with Rule 144A, each of the entire agreement between the Company and the Tenant concerning the Property;
(C) There is no default by the Company or Tenant under the Lease orparties agree, to the best of Seller’s knowledgeextent reasonably within its control, there is no condition or event thatto cause the conditions to such reset and resale herein (including Annex A) to be met. Initial Note Purchaser shall designate a Remarketing Date on five Business Days' notice to Lessees and Owner Trustee. Upon such Remarketing Date, with Lessees shall provide the passage of time or giving of noticePreliminary Offering Memorandum to the Initial Note Purchaser. After the Remarketing Date, or bothInitial Note Purchaser may designate a Repricing Date upon three Business Days' notice to Lessees, would constitute Owner Participant, Owner Trustee and Indenture Trustee. One Business Day prior to such a default. The Tenant is not entitled to any reduction in or refund ofRepricing Date, Initial Note Purchaser shall notify Lessees, Owner Participant, Owner Trustee and has no counterclaim or offset against, and is not otherwise disputing, any rents or other charges paid, payable or to become payable by the Tenant under the Lease or any Indenture Trustee of the Tenant’s other obligations under Reset Date and shall confirm the LeaseReset Rate which shall be the GM Equivalent Rate as of such Business Day. There are no options On or rights to renew, extend or terminate the Lease, except as expressly set forth in the Lease. The Tenant has not indicated to Company or Seller its intent to terminate or attempt to renegotiate its Lease prior to expiration the Repricing Date, Lessees and Owner Participant shall adjust the schedules of the term of such Lease. To the knowledge of SellerScheduled Rent, the Tenant has not entered into any assignment or sublease Lessor Interim Amount, Lessor Payment Amount, Stipulated Loss Value, Termination Value and EBO Amounts with respect to the Transponders and the amortization schedule for the Notes in accordance with Section 4 of the Lease;. On the Repricing Date, Lessees shall deliver the Offering Memorandum to Initial Note Purchaser. On or prior to the Reset Date, Lessees and Owner Trustee shall execute a supplement to the Lease reflecting the adjustments described in the preceding paragraph, and Owner Trustee and Indenture Trustee shall execute a supplement to the Indenture reflecting such adjustments and setting forth the Reset Rate, in each case effective on the Reset Date. If Initial Note Purchaser does not set a Repricing Date within 10 Business Days after an initial Remarketing Date, then Initial Note Purchaser may set not more than two subsequent Remarketing Dates in the manner described in the first paragraph of this Section 10.02 within 30 days after the initial ------------- Remarketing Date.
(Db) Except as disclosed on Exhibit C, Tenant has not provided any security deposit in In connection with the Lease;
(E) There are no free rent, operating expense abatements, incomplete tenant improvements, rebates, allowances, or other unexpired concessions or landlord obligations under the Lease;
(F) Other than the Lease, the Company has not entered into any leases or other occupancy agreements affecting all or any portion of the Property, and there are no tenants or other occupants of all or any part of the Property a Unilateral Resale other than the Tenant under the Lease;
(G) To the knowledge of Seller, the Tenant is not the subject of any bankruptcy, reorganization, insolvency or similar proceedings;
a resale made in accordance with Rule 144A as described in subsection (a) The commencement date of this Section ------- 10.02, if the Reset Rate has not theretofore been set, Initial Note Purchaser ----- shall designate, on five Business Days notice to Lessees, Owner Participant, Owner Trustee and Indenture Trustee, the Reset Date and shall confirm that on the Reset Date the Reset Rate will be the GM Equivalent Rate. Prior to such Reset Date, Lessees and Owner Participant shall adjust the schedules of Scheduled Rent, Stipulated Loss Value, Termination Value and each EBO Amount with respect to the Transponders and the amortization schedule of the Lease was ; the rent commencement date of the Lease was ; and the expiration date of the initial term of the Lease is ; (b) there are no options remaining unexercised on the part of the Tenant to renew the Lease except as follows (if noneNotes, so state): ; and (c) monthly basic rent is payable as and when set forth in the Lease;
(a) Tenant has unconditionally taken possession of and is occupying all of the Property (to the extent that the Property is to be delivered to the Tenant pursuant to the Lease); (b) Landlord has completed all work to be performed by Landlord under the Lease in a good and workmanlike manner and in accordance with Section 4 of the Lease; (c) Landlord has not received any notice from Tenant . On or prior to the Reset Date, upon the consummation of any defects the first such Unilateral Resale, Lessees and Owner Trustee shall execute and deliver a supplement to the Lease reflecting the adjustments described in the Property or any related improvements or facilities; (d) Tenant has not delivered any notice alleging any defect or deficiency in the work relating preceding paragraph, and Owner Trustee and Indenture Trustee shall execute and deliver a supplement to the Property or any related improvements or facilities; Indenture reflecting such adjustments and (e) Landlord has satisfied any and all commitments made to induce Tenant to enter setting forth the Reset Rate, in to each case effective on the Lease;Reset Date.
Appears in 1 contract
Samples: Participation Agreement (Magellan International Inc)
The Lease. Mortgagor represents and warrants and agrees as of the date hereof as follows:
(Aa) Seller Mortgagor has delivered to Purchaser Mortgagee a true, correct and complete copy of the Subject Lease;, including all amendments and modifications thereto existing as of the date hereof.
(B) The Lease is in full force and effect, has not been amended, modified or supplemented, and constitutes the entire agreement between the Company and the Tenant concerning the Property;
(C) There is no default by the Company or Tenant under the Lease or, to the best of Seller’s knowledge, there is no condition or event that, with the passage of time or giving of notice, or both, would constitute such a default. The Tenant is not entitled to any reduction in or refund of, and has no counterclaim or offset against, and is not otherwise disputing, any rents or other charges paid, payable or to become payable by the Tenant under the Lease or any of the Tenant’s other obligations under the Lease. There are no options or rights to renew, extend or terminate the Lease, except as expressly set forth in the Lease. The Tenant has not indicated to Company or Seller its intent to terminate or attempt to renegotiate its Lease prior to expiration of the term of such Lease. To the knowledge of Seller, the Tenant has not entered into any assignment or sublease with respect to the Lease;
(Db) Except as disclosed on Exhibit C, Tenant has not provided any security deposit in connection with the Lease;
(E) There are no free rent, operating expense abatements, incomplete tenant improvements, rebates, allowances, or other unexpired concessions or landlord obligations expressly permitted under the Lease;
(F) Other than the LeaseABL Loan Documents, the Company has Mortgagor shall not entered enter into any new leases or other occupancy agreements affecting of all or any portion of the Property, and there are no tenants Mortgaged Property except with Mortgagee’s prior written consent which consent shall not be unreasonably withheld or other occupants of all or any part of the Property other than the Tenant under the Lease;delayed.
(G) To the knowledge of Seller, the Tenant is not the subject of any bankruptcy, reorganization, insolvency or similar proceedings;
(a) The commencement date of the Lease was ; the rent commencement date of the Lease was ; and the expiration date of the initial term of the Lease is ; (b) there are no options remaining unexercised on the part of the Tenant to renew the Lease except as follows (if none, so state): ; and (c) monthly basic rent is payable as No material default now exists under the Subject Lease. To Mortgagor’s knowledge, no event has occurred that, with the giving of notice or the passage of time or both, 17 would constitute such a material default or would entitle Mortgagor or any other party under the Subject Lease to cancel the same.
(d) Except for this Mortgage or other assignments in favor of Mortgagee, Mortgagor has not executed any assignment or pledge of the Subject Lease or of Mortgagor’s right, title and when set forth interest in the Lease;same.
(ae) Tenant has unconditionally taken possession of This Mortgage does not constitute a violation or default under the Subject Lease, and is occupying is, and shall at all of times constitute a valid lien (subject only to matters permitted by this Mortgage) on Mortgagor’s interests in the Property Subject Lease.
(f) Mortgagor shall perform and observe, in all material respects, all terms, covenants, and conditions to the extent that the Property is required to be delivered performed and observed by Mortgagor as Lessee under the Subject Lease. Mortgagor shall enforce, in all material respects, the Lessor’s obligations under the Subject Lease.
(g) Mortgagor shall promptly deliver to Mortgagee a copy of any notice of default or termination that it receives from the Lessor with respect to the Tenant Subject Lease. Mortgagor shall promptly notify Mortgagee of any written request that either party to the Subject Lease makes for arbitration pursuant to the Subject Lease and the guidelines of the institution of any such arbitration. Mortgagor shall promptly deliver to Mortgagee a copy of the arbitrators’ written determination in each such arbitration. Mortgagee may participate in any such arbitration in such manner as Mortgagee shall determine appropriate following an Event of Default and during the continuance thereof, to the exclusion of Mortgagor if so determined by Mortgagee in its reasonable discretion.
(h) Subject to the terms of the ABL Loan Documents, Mortgagor shall not, without Mortgagee’s consent, (i) enter into any modification or amendment of the Subject Lease or (ii) consent to any action requested by Lessor or any third party as required pursuant to the terms and provisions of such Lease); , in each case, if the same would have a material adverse effect on Mortgagor’s day-to-day operations at the Mortgaged Property.
(bi) Landlord has completed all work Mortgagor’s obligations under this Mortgage are independent of and in addition to be performed by Landlord Mortgagor’s obligations under the Lease Subject Lease. Nothing in this Mortgage shall be construed to require Mortgagor or Mortgagee to take or omit to take any action that would cause a good and workmanlike manner and in accordance with default under the Subject Lease; (c) Landlord has not received any notice from Tenant of any defects in the Property or any related improvements or facilities; (d) Tenant has not delivered any notice alleging any defect or deficiency in the work relating to the Property or any related improvements or facilities; and (e) Landlord has satisfied any and all commitments made to induce Tenant to enter in to the Lease;.
Appears in 1 contract
The Lease. (Aa) Seller has delivered The Mortgagor shall:
(i) pay all rents, additional rents and other sums required to Purchaser a true, correct be paid by the Mortgagor under and complete copy pursuant to the provisions of the Lease;
(Bii) diligently perform and observe before the expiration of applicable cure periods all of the terms, covenants and conditions of the Lease on the part of the Mortgagor, as tenant thereunder, to be performed and observed, unless such performance or observance shall be waived or not required by the Landlord;
(iii) promptly advise the Mortgagee of any default under the Lease on the part of the Landlord or any successor landlord; and
(iv) upon written request of Mortgagee, use reasonable efforts to obtain a certificate of estoppel of the Landlord or any successor landlord at such intervals as the same may be obtained under the Lease.
(b) The Mortgagor shall not surrender the leasehold estate created by the Lease is or terminate or cancel the Lease or modify, change, supplement, alter or amend the Lease, in full any respect, either orally or in writing, and the Mortgagor hereby assigns to the Mortgagee, as further security for the payment and performance of the obligations and indebtedness secured hereby and for the performance and observance of the terms, covenants and conditions of this Mortgage, all of the rights, privileges and prerogatives of the Mortgagor, as tenant under the Lease, to surrender the leasehold estate created by the Lease or to terminate, cancel, modify, change, supplement, alter or amend the Lease, and any such surrender of the leasehold estate created by the Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Lease shall be void and of no force and effect. Simultaneously with the execution of this Mortgage, the Mortgagor has not delivered to the Mortgagee a true copy of an executed counterpart of the Lease, together with a true copy of an executed counterpart of any and all assignments thereof and amendments thereto and an executed counterpart of any memorandum of lease recorded in connection therewith, all of which shall be retained by the Mortgagee until the entire indebtedness secured hereby has been amendedpaid in full.
(c) If the Mortgagor shall default in the performance or observance of any term, modified covenant or supplementedcondition of the Lease on the part of the Mortgagor, as tenant thereunder, to be performed or observed, then, without limiting the generality of the other provisions of this Mortgage, and constitutes without waiving or releasing the entire agreement between Mortgagor from any of its obligations hereunder, the Company Mortgagee shall have the 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 Tenant concerning terms, covenants and conditions of the Property;
(C) There is no default by Lease on the Company part of the Mortgagor, as tenant thereunder, to be promptly performed or Tenant observed on behalf of the Mortgagor, to the end that the rights of the Mortgagor in, to and under the Lease orshall be kept unimpaired and free from default. If the Mortgagee shall make any payment or perform any act or take action in accordance with the preceding sentence, the Mortgagee will use its diligent efforts to notify the Mortgagor of the making of any such payment, the performance of any such act, or taking of any such action. All sums so paid and expended by the Mortgagee and the interest thereon shall be secured by the lien of this Mortgage. In any such event, the Mortgagee and any person designated by the Mortgagee 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.
(d) If the Landlord shall deliver to the best Mortgagee a copy of Seller’s knowledgeany notice of default sent by the Landlord to the Mortgagor, there is no condition as tenant under the Lease, such notice shall constitute full protection to the Mortgagee for any action taken or event thatomitted to be taken by the Mortgagee, in good faith, in reliance thereon.
(e) The Mortgagor shall, from time to time, use reasonable efforts to obtain from the Landlord such certificates of estoppel with respect to compliance by the Mortgagor with the passage terms of time or giving the Lease as may be requested by the Mortgagee.
(f) If the Lease is for any reason whatsoever terminated prior to the natural expiration of noticeits term, or bothand if, would constitute such a default. The Tenant is not entitled pursuant to any reduction in or refund of, and has no counterclaim or offset against, and is not otherwise disputing, any rents or other charges paid, payable or to become payable by the Tenant under provision of the Lease or otherwise, the Mortgagee or its designee shall acquire from the Landlord a new lease of the Premises, the Mortgagor shall have no right, title or interest in or to such new lease or the leasehold estate created thereby.
(g) No release or forbearance of any of the "Tenant’s other " obligations under the Lease. There are no options , pursuant to the Lease or rights otherwise, shall release the Mortgagor from any of its obligations under this Mortgage.
(h) In the event of any arbitration or court proceedings pursuant to renew, extend or terminate the Lease, except the Mortgagor hereby authorizes the Mortgagee to participate in such arbitration or court proceedings in order to protect the Mortgagee's interests hereunder and provided same shall not be exercised prior to an Event of Default hereby irrevocably appoints the Mortgagee its agent and attorney-in-fact (which appointment shall be deemed to be an agency coupled with an interest) to exercise all of its rights in connection with such arbitration or court proceedings, including the right to appoint arbitrators and to conduct arbitration proceedings on its behalf, after the occurrence of any event of default, but nothing contained herein shall obligate the Mortgagee to participate in any such arbitration or court proceedings.
(i) The Mortgagor shall not, without the Mortgagee's prior written consent, elect to treat the Lease or the leasehold estate created thereby as expressly set forth terminated under Subsection 365(h)(1) of the Bankruptcy Code, after rejection or disaffirmance of the Lease by the Landlord thereunder or by any trustee of such party, and any such election made without such consent shall be void and ineffective.
(ii) The Mortgagor hereby unconditionally assigns, transfers and sets over to the Mortgagee all of the Mortgagor's claims and rights to the payment of damages that may hereafter arise as a result of any rejection or disaffirmance of the Lease by the Landlord thereunder or by any trustee of such party, pursuant to the Bankruptcy Code. The Mortgagee shall have and is hereby granted the right to proceed, in its own name or in the name of the Mortgagor, in respect of any claim, suit, action or proceeding relating to the rejection or disaffirmance of the Lease (including, without limitation, the right to file and prosecute, to the exclusion of the Mortgagor, any proofs of claim, complaint, motions, applications, notices and other documents) in any case in respect of the Landlord under the Bankruptcy Code. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until all of the indebtedness and obligations secured by this Mortgage shall have been satisfied and discharged in full. Any amounts received by the Mortgagee as damages arising out of any such rejection of the Lease shall be applied first to all reasonable costs and expenses of the Mortgagee (including, without limitation, reasonable legal fees) in connection with the exercise of its rights under this paragraph and then, in such manner as the Mortgagee shall determine, to the reduction and payment of the indebtedness secured by this Mortgage, and thereafter any balance shall be remitted to the Mortgagor.
(iii) The Mortgagee shall not, pursuant to Subsection 365(h)(2) of the Bankruptcy Code, offset against the rent payable under the Lease the amount of any damages caused by the nonperformance by the Landlord of such party's obligations under the Lease after rejection or disaffirmance thereof under the Bankruptcy Code, without the prior written consent of the Mortgagee if such offset would result in a forfeiture of the Lease. The Tenant has not indicated Mortgagee shall have the right to Company or Seller its intent object to terminate or attempt to renegotiate its Lease prior to expiration of the term of such Lease. To the knowledge of Seller, the Tenant has not entered into any assignment or sublease with respect to the Lease;
(D) Except as disclosed on Exhibit C, Tenant has not provided any security deposit in connection with the Lease;
(E) There are no free rent, operating expense abatements, incomplete tenant improvements, rebates, allowances, or other unexpired concessions or landlord obligations under the Lease;
(F) Other than the Lease, the Company has not entered into any leases or other occupancy agreements affecting all or any portion of the Property, and there are no tenants or other occupants of all or any part of such offset, and, in the Property other than event of such objection, the Tenant Mortgagor shall not effect any offset of the amounts so objected to by the Mortgagee. The Mortgagor shall indemnify and hold the Mortgagee harmless from and against any and all claims, demands, actions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever (including, without limitation, reasonable legal fees) arising from or relating to any such offset by the Mortgagor.
(iv) The Mortgagor shall, promptly after obtaining knowledge thereof, give written notice to the Mortgagee of any actual filing by or against the Landlord of a petition under the Lease;Bankruptcy Code. The aforesaid written notice shall set forth any information possessed by the Mortgagor concerning the date of such filing and the court in which such petition was filed.
(Gv) To In the knowledge of Sellerevent that any action, the Tenant is not the subject of any bankruptcyproceeding, reorganization, insolvency motion or similar proceedings;
(a) The commencement date notice shall be commenced or filed in respect of the Lease was ; the rent commencement date of the Lease was ; and the expiration date of the initial term of the Lease is ; (b) there are no options remaining unexercised on the part of the Tenant to renew the Lease except as follows (if none, so state): ; and (c) monthly basic rent is payable as and when set forth in the Lease;
(a) Tenant has unconditionally taken possession of and is occupying all of the Property (to the extent that the Property is to be delivered to the Tenant pursuant to the Lease); (b) Landlord has completed all work to be performed by Landlord under the Lease in a good and workmanlike manner and in accordance with or the Lease; (c) Landlord has not received any notice from Tenant of any defects in the Mortgaged Property or any related improvements part thereof, in connection with any case under the Bankruptcy Code, following an Event of Default hereunder the Mortgagee shall have, and is hereby granted, the option, to the exclusion of the Mortgagor, exercisable upon notice from the Mortgagee to the Mortgagor, to conduct and control any such litigation with counsel of the Mortgagee's choice. The Mortgagee may proceed, in its own name or facilities; (d) Tenant has not delivered any notice alleging any defect or deficiency in the work relating name of the Mortgagor, in connection with any such litigation, and the Mortgagor agrees to the Property or any related improvements or facilities; and (e) Landlord has satisfied execute any and all commitments powers, authorizations, consents and other documents required by the Mortgagee in connection therewith. The Mortgagor shall, upon demand, pay to the Mortgagee all reasonable costs and expenses (including, without limitation, reasonable legal fees) paid or incurred by the Mortgagee in connection with the prosecution or conduct of any such proceedings, and, to the extent permitted by law, such costs and expenses shall be added to the indebtedness secured by this Mortgage. The Mortgagor shall not, without the prior written consent of the Mortgagee, commence any action, suit, proceeding or case, or file any application or make any motion, in respect of the Lease in any such case under the Bankruptcy Code.
(vi) In the event that a petition under the Bankruptcy Code shall be filed by or against the Mortgagor, and the Mortgagor or any trustee of the Mortgagor shall decide to reject the Lease pursuant to Section 365(a) of the Bankruptcy Code or the Lease shall be subject to rejection pursuant to Section 365(d)(4) of the Bankruptcy Code, the Mortgagor shall give the Mortgagee at least ten (10) days' prior written notice of the date on which application shall be made to induce Tenant the court for authority to enter in reject the Lease. The Mortgagee shall have the right, but not the obligation, to serve upon the Mortgagor or such trustee within such ten (10) day period a notice stating that (A) the Mortgagee demands that the Mortgagor or such trustee assume and assign the Lease to the Mortgagee pursuant to Section 365 of the Bankruptcy Code, and (B) the Mortgagee covenants to cure, or provide adequate assurance of prompt cure of, all defaults and provide adequate assurance of future performance under the Lease;. In the event that the Mortgagee serves such notice upon the Mortgagor or such trustee, neither the Mortgagor nor such trustee shall seek to reject the Lease, and the Mortgagor and such trustee shall comply with such demand within thirty (30) days after such notice shall have been given, subject to the Mortgagee's performance of such covenant.
(vii) In the event that a petition under the Bankruptcy Code shall be filed by or against the Mortgagor, neither the Mortgagor nor any trustee of the Mortgagor shall seek to extend any of the deadlines set forth in Section 365 of the Bankruptcy Code without the written consent of the Mortgagee.
(viii) The Mortgagor hereby assigns, transfers and sets over to the Mortgagee a nonexclusive right to apply to the Bankruptcy Court under Subsection 365(d)(4) of the Bankruptcy Code for an order extending the period during which the Lease may be rejected or assumed after the entry of any order for relief in respect to the Mortgagor under Chapter 7 or Chapter 11 of the Bankruptcy Code.
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The Lease. (A) Seller has delivered to Purchaser a true, correct and complete copy It is agreed that in the event Tenant defaults in respect of the Lease;
(B) The Lease is in full force and effect, has not been amended, modified or supplemented, and constitutes the entire agreement between the Company and the Tenant concerning the Property;
(C) There is no default by the Company or Tenant under the Lease or, to the best of Seller’s knowledge, there is no condition or event that, with the passage of time or giving of notice, or both, would constitute such a default. The Tenant is not entitled to any reduction in or refund of, and has no counterclaim or offset against, and is not otherwise disputing, any rents or other charges paid, payable or to become payable by the Tenant under the Lease or any of the Tenant’s other obligations under Obligations beyond the Lease. There are no options or rights to renew, extend or terminate the Lease, except as expressly set forth in the Lease. The Tenant has not indicated to Company or Seller its intent to terminate or attempt to renegotiate its Lease prior to expiration of any applicable notice and grace period, Landlord may use, apply or retain the term of such Lease. To the knowledge of Seller, the Tenant has not entered into any assignment or sublease with respect to the Lease;
(D) Except as disclosed on Exhibit C, Tenant has not provided any security deposit in connection with the Lease;
(E) There are no free rent, operating expense abatements, incomplete tenant improvements, rebates, allowances, or other unexpired concessions or landlord obligations under the Lease;
(F) Other than the Lease, the Company has not entered into any leases or other occupancy agreements affecting all or any portion of the Property, and there are no tenants or other occupants of all whole or any part of the Property other than the Tenant under the Lease;
(G) To the knowledge of Seller, the Tenant is not the subject of any bankruptcy, reorganization, insolvency or similar proceedings;
(a) The commencement date of the Lease was ; the rent commencement date of the Lease was ; and the expiration date of the initial term of the Lease is ; (b) there are no options remaining unexercised on the part of the Tenant to renew the Lease except as follows (if none, security so state): ; and (c) monthly basic rent is payable as and when set forth in the Lease;
(a) Tenant has unconditionally taken possession of and is occupying all of the Property (deposited to the extent that the Property is required to fulfill such Obligation or for any sum which Landlord may expend or may be delivered required to the Tenant pursuant to the Lease); (b) Landlord has completed all work to be performed expend by Landlord under the Lease reason of Tenant’s default in a good and workmanlike manner and in accordance with the Lease; (c) Landlord has not received any notice from Tenant respect of any defects in the Property or such Obligations, including but not limited to, any related improvements or facilities; (d) Tenant has not delivered any notice alleging any defect damages or deficiency in the work relating reletting of the Premises, whether such damages or deficiency accrued before or after summary proceedings or other re-entry by Landlord. In the event Landlord shall apply the whole or any part of the security deposited hereunder, Guarantor shall immediately deliver to Landlord an amount equal to the Property sum applied by Landlord in accordance therewith so that Landlord shall have as the security hereunder an amount equal to $1,000,000.00. Any unapplied security deposited shall be returned to Guarantor within ten (10) days after the date fixed as the end of the Lease and after delivery of possession of the entire Premises to Landlord and all billed Obligations have been paid. In the event of a sale of the land and Building or any related improvements leasing of the entire Building, Landlord shall transfer the security to the vendee or facilitieslessee (the “New Landlord”); and (e) provided such New Landlord has satisfied any shall expressly assume, in writing for the benefit of Guarantor, all such obligations, Landlord shall thereupon be released by Guarantor from all liability for the return of such security; and all commitments made to induce Tenant to enter in Guarantor shall look to the Lease;New Landlord solely for the return of said security deposited. It is agreed that the provisions hereof shall apply to every transfer or assignment made of the security to a New Landlord. Guarantor further covenants that it will not assign or encumber or attempt to assign or encumber the monies deposited herein as security and that neither Landlord nor its successors or assigns shall be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance. Guarantor represents that its IRS Employer Identification number is 00-0000000. In the event that the provisions of this Section 9b. become applicable because the Conditions are not satisfied and Guarantor subsequently satisfies the Conditions, Landlord shall upon demand return to Guarantor any sums (or the letter of credit described in c. below) so deposited.
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