Ground Lease (a) Ground Lessee and Borrower have executed this Instrument mortgaging their separate estates in the Property for the purpose of granting to the Lender such lien as would cause the fee simple title to the Property to be sold free and clear of the Ground Lease at foreclosure sale. Ground Lessee and Borrower hereby jointly and severally waive any right, arising at law or in equity, whether presently existing or subsequently accruing, whether to Ground Lessee, Borrower, or anyone holding or claiming under or through them, to have their separate estates sold separately upon foreclosure, whether under principles of marshalling or otherwise.
(b) Except as specified in Section 11.02, in any action commenced to enforce the Obligations created or arising under this Instrument, any resulting judgment or decree shall be enforceable against Ground Lessee only to the extent of Ground Lessee’s interest in the Property or other property subject to any security interest securing the Note. Subject to Section 11.01, (i) any execution on such judgment or decree, with respect to the assets of Ground Lessee, shall be limited to the Property or other property subject to any security interest securing the Note, and (ii) Ground Lessee shall not be personally liable for the payment of the indebtedness or other Obligations secured by this Instrument, nor shall execution on any judgment or decree resulting from any action to enforce the Obligations be or be caused to be a lien on any other asset of Ground Lessee other than the Property or other property subject to any security interest securing the Note.
(c) Ground Lessee and Borrower each agree that neither this Instrument nor any obligation of Ground Lessee and Borrower hereunder will be released, impaired or subordinated by any amendment to this Instrument or any other document or extension of time or waiver of right or remedy as to Ground Lessee, Borrower, or any other party, or any other act or thing which, but for this provision, would so release, impair, or subordinate.
(d) Ground Lessee and Ground Lessee’s interest in the Ground Lease and the Property shall be subject to all of the provisions of Section 5.01.
(e) Under no circumstances shall Lender or any of its successors or assigns have any obligation or liability of any kind or nature based upon or arising under the Ground Lease, regardless of whether such obligation or liability (i) is an obligation or liability of either ground lessee or ground lessor under the Ground Lease, or (ii) arises either before or after Lender acquired title to the Property.
(f) Ground Lessee and Borrower each hereby acknowledge and agree that all of the Ground Lessee’s rights and remedies under the Ground Lease, including without limitation any rights of first refusal or any purchase rights, are subject to and subordinate to this Instrument.
Operating Lease (i) Each Borrower shall (a) promptly perform and observe all of the covenants required to be performed and observed by it under the Operating Leases and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (b) promptly notify Lender of any material default under any Operating Lease of which it is aware; (c) promptly deliver to Lender a copy of any notice of default or other material notice under any Operating Lease delivered to any Operating Lessee by Borrower; (d) promptly give notice to Lender of any notice or information that Borrower receives which indicates that an Operating Lessee is terminating its Operating Lease or that any Operating Lessee is otherwise discontinuing its operation of the applicable Individual Property; and (e) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Operating Lessee under the applicable Operating Lease.
(ii) If at any time, (A) an Operating Lessee shall become insolvent or a debtor in a bankruptcy proceeding or (B) Lender or its designee has taken title to an Individual Property by foreclosure or deed in lieu of foreclosure, has become a mortgagee-in-possession, has appointed a receiver with respect to the applicable Individual Property or has otherwise taken title to such Individual Property, Lender shall have the absolute right to (and Borrower and Operating Lessee shall reasonably cooperate and not in any way hinder, delay or otherwise interfere with Lender’s right to), immediately terminate the applicable Operating Lease under and in accordance with the terms of the applicable Subordination, Attornment and Security Agreement.
(iii) Borrower shall not, without the prior written consent of Lender, which consent shall not be unreasonably withheld: (a) surrender, terminate or cancel any Operating Lease or otherwise replace any Operating Lessee or enter into any other operating lease with respect to any Individual Property, provided, however, at the end of the term of each Operating Lease, the applicable Borrower may renew such Operating Lease or enter into a replacement Operating Lease with Operating Lessee on substantially the same terms as the expiring Operating Lease except that Lender shall have the right to approve any material change thereto; (b) reduce or consent to the reduction of the term of any Operating Lease; or (c) enter into, renew, amend, modify, waive any provisions of, reduce Rents under, or shorten the term of any Operating Lease.
Ground Leases For purposes of this Exhibit C, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner. With respect to any Mortgage Loan where the Mortgage Loan is secured by a Ground Leasehold estate in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, based upon the terms of the Ground Lease and any estoppel or other agreement received from the ground lessor in favor of Mortgage Loan Seller, its successors and assigns (collectively, the “Ground Lease and Related Documents”), Mortgage Loan Seller represents and warrants that:
New Lease In the event that this Lease is rejected in any bankruptcy, insolvency or dissolution proceeding or is terminated by Landlord following a Tenant Event of Default other than due to a default that is subject to cure by a Permitted Leasehold Mortgagee under Section 17.1(d) and Section 17.1(e) above, Landlord shall provide each Permitted Leasehold Mortgagee with written notice that this Lease has been rejected or terminated (“Notice of Termination”), and, for the avoidance of doubt, upon delivery of such Notice of Termination, no Permitted Leasehold Mortgagee shall have the rights as described in Section 17.1(d) and Section 17.1(e) above, but rather such Permitted Leasehold Mortgagee instead shall have the rights described in this Section 17.1(f)). Following any such rejection or termination, Landlord agrees to enter into a new lease (“New Lease”) of the Leased Property with such Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee for the remainder of the term of this Lease, effective as of the date of termination, at the rent and additional rent, and upon the terms, covenants and conditions (including all then-remaining options to renew but excluding requirements which have already been fulfilled) of this Lease, provided:
(i) such Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee shall comply with the applicable terms of Section 22.2;
(ii) such Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee shall make a binding, written, irrevocable commitment to Landlord for such New Lease within thirty (30) days after the date such Permitted Leasehold Mortgagee receives Landlord’s Notice of Termination of this Lease given pursuant to this Section 17.1(f);
(iii) such Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee shall pay or cause to be paid to Landlord at the time of the execution and delivery of such New Lease, any and all sums which would at the time of execution and delivery thereof be due pursuant to this Lease but for such rejection or termination (including, for avoidance of doubt, any amounts that become due prior to and remained unpaid as of the date of the Notice of Termination) and, in addition thereto, all reasonable expenses, including reasonable documented attorney’s fees, which Landlord shall have incurred by reason of such rejection or such termination and the execution and delivery of the New Lease and which have not otherwise been received by Landlord from Tenant or other party in interest under Tenant; and
(iv) such Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee shall agree to remedy any of Tenant’s defaults of which said Permitted Leasehold Mortgagee was notified by Landlord’s Notice of Termination (or in any other written notice of Landlord) and which can be cured through the payment of money or, if such defaults cannot be cured through the payment of money, are reasonably susceptible of being cured by Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee.
Operating Leases Not permit the aggregate amount of all rental payments under Operating Leases made (or scheduled to be made) by the Loan Parties (on a consolidated basis) to exceed $1,000,000 in any Fiscal Year.
Tenant Leases Attached hereto as Exhibit D-1 is a list of all leases and any other licenses and occupancy agreements pursuant to which any person occupies, or has the right to occupy, space in the Project (which leases, agreements and other documents, together with the lease documents entered into with respect to the Project after the date hereof pursuant to Section 5 below, are herein referred to collectively as the "Tenant Leases"). Exhibit D-1 also includes a list of all security deposits currently being held by Seller in connection with the Tenant Leases. Seller has made true, correct and complete copies of the Tenant Leases available to Purchaser on the due diligence website created for this transaction. Except for the Tenant Leases, there are no other leases or other occupancy agreements affecting the Project. Seller has not granted any party any option to purchase the Project, rights of first refusal to purchase the Project or, except as set forth in the Tenants Leases, any licenses or other similar agreement with respect to the Project. To Seller's actual knowledge, except as shown on Exhibit D-2 attached hereto, there are no defaults under any of the Tenant Leases and the Tenant Leases are in full force and effect. There are no brokerage commissions or fees due now or payable in the future in connection with the Tenant Leases except for brokerage commissions that may be due Xxxxxxx & Xxxxxxxxx U.S., Inc. (C&W) for lease renewals pursuant to that certain Commission Agreement for Lease, signed by Seller on December 8, 2017, and by C&W on December 27, 2017 (the "C&W Commission Agreement"); and, except for the Outstanding TI Work, all tenant improvement costs and work applicable to the current term and space covered by the Tenant Leases have been paid completed and paid in full.
Space Leases (i) To Borrower’s best knowledge, Borrower has delivered a true, correct and complete schedule of all Space Leases as of the date hereof, which accurately and completely sets forth in all material respects, for each such Space Lease, the following (collectively, the “Rent Roll”): the name and address of the tenant; the lease expiration date, extension and renewal provisions; the base rent and percentage rent payable; and the security deposit held thereunder.
(ii) Each Space Lease constitutes the legal, valid and binding obligation of Borrower or, the Operating Tenant, as applicable, and, to the knowledge of Borrower, is enforceable against the tenant thereof. No default exists, or with the passing of time or the giving of notice would exist, which would, in the aggregate, have a Material Adverse Effect.
(iii) To Borrower’s best knowledge, no tenant under any Major Space Lease has, as of the date hereof, paid Rent more than thirty (30) days in advance, and the Rents under such Major Space Leases have not been waived, released, or otherwise discharged or compromised.
(iv) To Borrower’s best knowledge, except as disclosed in writing to Lender, all work to be performed by Borrower under the Space Leases has been substantially performed, all contributions to be made by Borrower to the tenants thereunder have been made except for any held-back amounts, and all other conditions precedent to each such tenant’s obligations thereunder have been satisfied.
(v) To Borrower’s best knowledge, except as previously disclosed to Lender in writing or contained in the Space Leases, there are no options to terminate any Space Lease.
(vi) To Borrower’s best knowledge, each tenant under a Major Space Lease or such tenant’s authorized subtenant is currently occupying the space demised by such Major Space Lease.
(vii) To Borrower’s best knowledge, Borrower has delivered to Lender true, correct and complete copies of all Space Leases described in the Rent Roll.
(viii) No Space Lease has been assigned or, to Borrower’s best knowledge, modified, supplemented or amended in any way.
(ix) To Borrower’s best knowledge, each tenant under each Space Lease is free from bankruptcy, reorganization or arrangement proceedings or a general assignment for the benefit of creditors.
(x) To Borrower’s best knowledge, no Space Lease provides any party with the right to obtain a lien or encumbrance upon the Property superior to the lien of this Security Instrument.
Master Lease A. All the obligations contained in the Master Lease conferred and imposed upon Sublessor (as Tenant therein) shall be borne by Sublessor and Sublessee in accordance with the Sublessor's Percentage and the Sublessee's Percentage, respectively, except as modified and amended by this Sublease, and all rights and privileges contained in the Master Lease conferred upon Sublessor (as Tenant therein), are hereby conferred and imposed upon Sublessee, to the extent of Sublessee's Percentage. Sublessor covenants and agrees it will make payment of the rentals reserved under the Master Lease as and when due, will perform Sublessor's insurance obligations under the Master Lease, and will otherwise fully and faithfully perform the terms and conditions of the Master Lease with respect to the Sublessor's Percentage. Sublessee covenants and agrees to otherwise fully and faithfully perform the terms and conditions of the Master Lease and the Sublease on its part to be performed. Neither the Sublessor nor Sublessee shall do or cause to be done any act which would or might cause the Master Lease, or the rights of Sublessor as tenant under the Master Lease to be endangered, cancelled, terminated, forfeited or surrendered, or which would or might cause Sublessor to be in default thereunder or liable for any damage, claim or penalty. Sublessee agrees, as an express inducement for Sublessor executing this Sublease, that if there is any conflict between the provisions of the Master Lease and this Sublease which would permit Sublessee to do or cause to be done any act which is prohibited by the Master Lease then the provisions of the Master Lease shall prevail.
B. Sublessee shall pay to Sublessor, within ten (10) days after demand therefor by Sublessor, Sublessee's Percentage of any and all sums (except fixed annual rent payable under the Master Lease) due pursuant to the Master Lease. Sublessor shall not demand such payment prior to the date which is thirty (30) days before the date any such sum shall be due and owing under the Master Lease.
C. Notwithstanding anything to the contrary herein contained, Sublessor shall have no duty itself to perform any obligations of the Master Landlord, nor shall such default of the Master Landlord affect this Sublease or waive or defer the performance of any of Sublessee' s obligations hereunder; provided, nevertheless, that in the event of any such default or failure of performance by Master Landlord, Sublessor agrees, upon notice from Sublessee, to make immediate demand upon Master Landlord to perform its obligations under the Master Lease.
New Leases Continue its present rental program and efforts at such Seller’s Property to rent vacant space in accordance with past practices; provided that, without the prior written consent of the Buyer, which consent may be granted or withheld in the Buyer’s sole discretion, such Seller shall not (i) execute any new lease, license or other occupancy agreement, (ii) amend, supplement, terminate, accept the surrender of, renew or otherwise modify any existing Lease, (iii) approve any assignment or sublease of any existing Lease, or (iv) waive any right or obligation thereunder; provided, however, that, in the case of any amendment, supplement, termination, surrender, renewal or modification of any existing Lease as set forth in clause (ii) above, if such existing Lease expressly and specifically sets forth the terms of any such amendment, supplement, termination, surrender, renewal or modification and requires the landlord under the Lease to acknowledge or counter-sign the same, in which case, the Buyer’s consent shall not be required, but Seller shall provide the Buyer with written notice of (and to the extent such amendment, supplement or modification modifies the rental terms of such Lease which rental amount is not specifically stated in such Lease, the Buyer shall have an opportunity to review and comment upon) such amendment, supplement, termination, surrender, renewal or modification at least five (5) Business Days prior to the date of execution. If such Seller enters into any new lease, license or other occupancy agreement, or renews any existing Lease (each such new lease, license, occupancy agreement and renewal, a “New Lease”) after the date hereof in accordance with the terms of this Section 3.2(d), then each such lease, license, occupancy agreement and renewal shall be included in the definition of “Leases” herein and added to Schedule 3.2(c) attached hereto, shall be assigned to and assumed by the Buyer at the Closing in accordance with this Agreement. If the Buyer does not reject or approve a new lease, license, occupancy agreement, renewal or a Lease amendment within five (5) Business Days after receipt of a copy thereof, then the Buyer shall be deemed to have approved such new lease, license, occupancy agreement, renewal or Lease amendment; provided that such notice includes specific reference to this Section 3.3(d) and the deemed approval provision hereof.
Lease Estoppels With respect to each Mortgage Loan secured by retail, office or industrial properties, the Mortgage Loan Seller requested the related Mortgagor to obtain estoppels from each commercial tenant with respect to the Certified Rent Roll (except for tenants for whom the related lease income was excluded from the Mortgage Loan Seller’s underwriting). With respect to each Mortgage Loan predominantly secured by a retail, office or industrial property leased to a single tenant, the Mortgage Loan Seller reviewed such estoppel obtained from such tenant no earlier than 90 days prior to the origination date of the related Mortgage Loan (or such longer period as Mortgage Loan Seller may deem reasonable and appropriate based on Mortgage Loan Seller’s practices in connection with the origination of similar commercial and multifamily loans intended for securitization), and to Mortgage Loan Seller’s knowledge, based solely on the related estoppel, (x) the related lease is in full force and effect and (y) there exists no material default under such lease, either by the lessee thereunder or by the lessor subject, in each case, to customary reservations of tenant’s rights, such as with respect to CAM and pass-through audits and verification of landlord’s compliance with co-tenancy provisions.