Common use of Encumbered Property Clause in Contracts

Encumbered Property. (a) Except in the ordinary course of business or as otherwise permitted in the Credit Agreement, no Improvements will be altered in any material respect or demolished or removed in whole or 203367025 v9 in part by the Grantors without the prior written consent of the Collateral Agent. No Personal Property shall be removed by the Grantors, except that the Grantors shall have the right to remove and dispose of, free of the Lien of the Collateral Documents, such Personal Property as may, from time to time, become worn out or obsolete in the normal course of business. The Grantors will maintain and keep the Encumbered Property in good condition and repair, reasonable wear and tear and damage by casualty excepted, and will not commit any waste on the Encumbered Property or make any alteration to, or change in the use of, the Encumbered Property that will materially diminish the utility thereof for the operation of the business conducted thereon or increase the risk of fire or other hazard and in no event shall any such alteration or change be contrary to the terms of any insurance policy required to be kept pursuant to the Credit Agreement. Subject to the terms of the Credit Agreement, the Grantors shall promptly repair, replace or rebuild any part of the Encumbered Property that becomes damaged or worn. (b) To the extent the same exist on the date hereof or are obtained in connection with future permitted alterations, each Grantor shall maintain a complete set of final plans, specifications, blueprints and drawings for the Improvements either at the Encumbered Property or in a particular office at the headquarters of such Grantor to which the Collateral Agent shall have access upon reasonable advance notice. The Mortgagor shall promptly notify the Mortgagee of any proposed zoning reclassification, variance, conditional or special use permit, subdivision plat or annexation affecting the Land. Each Grantor shall at all times comply in all material respects with, and is currently in compliance in all material respects with, all of its obligations under all recorded restrictions, conditions, easements and covenants (“Restrictive Covenants”) encumbering the Land and shall duly enforce its rights under all Restrictive Covenants encumbering other property for the benefit of the Premises. If any Grantor receives any notice (whether oral or written) that any Restrictive Covenant has been violated, then such Grantor shall promptly notify the Collateral Agent and take such steps as the Collateral Agent may reasonably require to correct such violation.

Encumbered Property. (a) Except 2.12.1 Grantor shall pay or cause to be paid all rent and other charges required under the Ground Lease as and when the same are due and shall promptly and faithfully perform or cause to be performed all other material terms, obligations, covenants, conditions, agreements, indemnities and liabilities of Grantor under the Ground Lease. Grantor shall observe all applicable covenants, easements and other restrictions of record with respect to the Site, the Easements or to any other part of the Encumbered Property, in all material respects. 2.12.2 Grantor shall do, or cause to be done, all things necessary to preserve and keep unimpaired all rights of Grantor as lessee under the Ground Lease, and to prevent any default under the Ground Lease, or any termination, surrender, cancellation, forfeiture, subordination or impairment thereof. ▇▇▇▇▇▇▇ does hereby authorize and irrevocably appoint and constitute Beneficiary as its true and lawful attorney-in-fact, which appointment is coupled with an interest, in its name, place and stead, to take any and all actions deemed necessary or desirable by Beneficiary to perform and comply with all the obligations of Grantor under the Ground Lease, and to do and take upon the occurrence and during continuation of an Event of Default, but without any obligation so to do or take, any action which Beneficiary deems reasonably necessary to prevent or cure any default by Grantor under the Ground Lease, to enter into and upon the Real Property and Improvements or any part thereof as provided in the ordinary course Secured Debt Documents in order to prevent or cure any default of business Grantor pursuant thereto, to the end that the rights of Grantor in and to the leasehold estate created by the Ground Lease shall be kept free from default. 2.12.3 Grantor shall use all reasonable efforts to enforce the obligations of the lessor under the Ground Lease in a commercially reasonable manner. 2.12.4 Grantor shall not voluntarily surrender its leasehold estate and interest under the Ground Lease or modify, change, supplement, alter or amend the Ground Lease or affirmatively waive any provisions thereof, either orally or in writing, except as otherwise permitted in the Credit AgreementSecured Debt Documents, no Improvements will be altered in and any material respect or demolished or removed in whole or 203367025 v9 in attempt on the part by of Grantor to do any of the Grantors foregoing without the prior written consent of the Collateral Agent. No Personal Property Beneficiary shall be removed null and void. 2.12.5 If any action or proceeding shall be instituted to evict Grantor or to recover possession of the Encumbered Property or any part thereof or interest therein from Grantor or any action or proceeding otherwise affecting the Encumbered Property or this Deed of Trust shall be instituted, then Grantor shall, immediately after receipt, deliver to Beneficiary a true and complete copy of each petition, summons, complaint, notice of motion, order to show cause and all other pleadings and papers, however designated, served in any such action or proceeding. 2.12.6 Grantor covenants and agrees that the fee title to the Real Property and Improvements and the leasehold estate created under the Ground Lease shall not merge but shall always remain separate and distinct, notwithstanding the union of said estates either in Grantor or a third party by purchase or otherwise and, in case Grantor acquires the fee title or any other estate, title or interest in and to the Real Property and Improvements, the lien of this Deed of Trust shall, without further conveyance, simultaneously with such acquisition, be spread to cover and attach to such acquired estate and as so spread and attached shall be prior to the lien of any deed of trust placed on the acquired estate after the date of this Deed of Trust. 2.12.7 No release or forbearance of any of Grantor's obligations under the Ground Lease by the Grantorslessor thereunder, except shall release Grantor from any of its obligations under this Deed of Trust. 2.12.8 Grantor shall, within ten days after written demand from Beneficiary, deliver to Beneficiary proof of payment of all items that are required to be paid by Grantor under the Grantors Ground Lease, including, without limitation, rent, taxes, operating expenses and other charges. 2.12.9 The lien of this Deed of Trust shall attach to all of Grantor's rights and remedies at any time arising under or pursuant to bankruptcy or insolvency law, including, without limitation, all of Grantor's rights to remain in possession of the Encumbered Property. Grantor shall not elect to treat the Ground Lease as terminated under bankruptcy or insolvency law, and any such election shall be void. 2.12.9.1 If pursuant to bankruptcy or insolvency law, Grantor shall seek to offset against the rent reserved in the Ground Lease the amount of any damages caused by the nonperformance by the lessor or any other party of any of their respective obligations thereunder after the rejection by the lessor or such other party of the Ground Lease under any bankruptcy or insolvency law, then Grantor shall, prior to effecting such offset, notify Beneficiary of its intent to do so, setting forth the amount proposed to be so offset and the basis therefor. Beneficiary shall have the right to remove and dispose of, free object to all or any part of such offset that would constitute a breach of the Lien Ground Lease, and in the event of such objection, Grantor shall not effect any offset of the Collateral Documentsamounts found objectionable by Beneficiary. Neither Beneficiary's failure to object as aforesaid nor any objection relating to such offset shall constitute an approval of any such offset by Beneficiary. 2.12.9.2 If any action, proceeding, motion or notice shall be commenced or filed in respect of the lessor under the Ground Lease or any other party or in respect of the Ground Lease in connection with any case under any bankruptcy or insolvency law, then Beneficiary shall have the option to intervene in any such Personal Property as maylitigation with counsel of Beneficiary's choice. Beneficiary may proceed in its own name in connection with any such litigation, from time and ▇▇▇▇▇▇▇ agrees to timeexecute any and all powers, become worn out authorizations, consents or obsolete other documents required by Beneficiary in connection therewith. 2.12.9.3 Grantor shall, after obtaining knowledge thereof, promptly notify Beneficiary of any filing by or against the normal course of business. The Grantors will maintain and keep lessor or other party with an interest in the Encumbered Property of a petition under any bankruptcy or insolvency law. Grantor shall promptly deliver to Beneficiary, following receipt, copies of any and all notices, summonses, pleadings, applications and other documents received by Grantor in good condition connection with any such petition and repair, reasonable wear and tear and damage any proceedings relating thereto. 2.12.9.4 If there shall be filed by casualty exceptedor against Grantor a petition under any bankruptcy or insolvency law, and will Grantor, as lessee under the Ground Lease, shall determine to reject the Ground Lease pursuant to any bankruptcy or insolvency law, then Grantor shall give Beneficiary a notice of the date on which Grantor shall apply to the bankruptcy court for authority to reject the Ground Lease (such notice to be no later than twenty (20) days prior to such date). Beneficiary shall have the right, but not commit the obligation, to serve upon Grantor at any waste time prior to the date on which Grantor shall so apply to the bankruptcy court a notice stating that Beneficiary demands that Grantor assume and assign the Ground Lease to Beneficiary pursuant to any bankruptcy or insolvency law. If Beneficiary shall serve upon Grantor the notice described in the preceding sentence, to the extent permitted by law or Governmental Authority Grantor shall not seek to reject the Ground Lease and shall comply with the demand provided for in the preceding sentence. In addition, effective upon the entry of an order for relief with respect to Grantor under any bankruptcy or insolvency law, Grantor hereby assigns and transfers to Beneficiary a non-exclusive right to apply to the bankruptcy court under any bankruptcy or insolvency law for an (a) promptly notify Beneficiary of any default by Grantor in the performance or observance of any of the terms, covenants or conditions on the Encumbered Property part of Grantor to be performed or make any alteration to, or change in observed under the use of, the Encumbered Property that will materially diminish the utility thereof for the operation Ground Lease and of the business conducted thereon or increase giving of any written notice by the risk lessor thereunder to Grantor of fire or other hazard and in no event shall any such alteration or change be contrary to the terms of any insurance policy required to be kept pursuant to the Credit Agreement. Subject to the terms of the Credit Agreementdefault, the Grantors shall promptly repair, replace or rebuild any part of the Encumbered Property that becomes damaged or worn. and (b) To promptly cause a copy of each written notice given to Grantor by the extent lessor under the same exist Ground Lease to be delivered to Beneficiary. Beneficiary may rely on any notice received by it from any such lessor of any default by Grantor under the date hereof Ground Lease and may take such action as may be permitted by law or are obtained in connection with future permitted alterations, each Grantor shall maintain a complete set of final plans, specifications, blueprints and drawings for Governmental Authority to cure such default even though the Improvements either at the Encumbered Property or in a particular office at the headquarters existence of such default or the nature thereof shall be questioned or denied by Grantor to which the Collateral Agent shall have access upon reasonable advance notice. The Mortgagor shall promptly notify the Mortgagee of or by any proposed zoning reclassification, variance, conditional or special use permit, subdivision plat or annexation affecting the Land. Each Grantor shall at all times comply in all material respects with, and is currently in compliance in all material respects with, all of Person on its obligations under all recorded restrictions, conditions, easements and covenants (“Restrictive Covenants”) encumbering the Land and shall duly enforce its rights under all Restrictive Covenants encumbering other property for the benefit of the Premises. If any Grantor receives any notice (whether oral or written) that any Restrictive Covenant has been violated, then such Grantor shall promptly notify the Collateral Agent and take such steps as the Collateral Agent may reasonably require to correct such violationbehalf.

Encumbered Property. (a) Except On the Petition Date, no Grantor owns any fee interest in real estate and, thus, no Grantor owns any asset that constitutes “Premises” or “Encumbered Property”. (b) Upon entry of the Orders, each Grantor has good, marketable, insurable, indefeasible, fee simple title to the Land and Improvements owned by such Grantor, subject to Permitted Encumbrances. Each Grantor has good and marketable title to or valid leasehold interests in all of the other Encumbered Property held by such Grantor. (c) Each Grantor has good and lawful right and full power and authority to encumber or grant a security interest in the ordinary course of business or as otherwise permitted in the Credit Agreement, no Improvements will be altered in any material respect or demolished or removed in whole or 203367025 v9 in part Encumbered Property held by the Grantors without the prior written consent such Grantor. The possession of the Encumbered Property has been peaceful and undisturbed and title thereto has not been disputed or questioned to the best of such Grantor’s knowledge. Each Grantor will forever warrant, defend and preserve its title to the Encumbered Property, the rights of the Secured Parties therein under the Collateral Agent. No Personal Property shall be removed by Documents and the Grantors, except that the Grantors shall have the right to remove validity and dispose of, free priority of the Lien of the Collateral Documents, such Personal Property as may, from time Documents thereon against the claims of all persons and parties except those having rights under the Permitted Encumbrances to time, become worn out the extent of those rights. (d) The Permitted Encumbrances do not and will not materially and adversely affect (i) the ability of the relevant Grantor to perform its obligations hereunder and the other Loan Documents to which it is a party or obsolete in (ii) the normal course use of business. The Grantors will maintain and keep the Encumbered Property in good condition and repair, reasonable wear and tear and damage by casualty excepted, and will not commit any waste on the Encumbered Property or make any alteration to, or change in for the use ofcurrently being made thereof, the Encumbered Property that will materially diminish the utility thereof for the operation of the business conducted thereon Encumbered Property as currently being operated or increase the risk value of fire or other hazard the Encumbered Property. (e) The Encumbered Property has adequate rights of access to public ways and in no event shall any such alteration or change be contrary is served by adequate water, sewer, sanitary sewer and storm drain facilities. All public utilities necessary to the terms of any insurance policy required to be kept pursuant to the Credit Agreement. Subject to the terms of the Credit Agreement, the Grantors shall promptly repair, replace or rebuild any part continued use and enjoyment of the Encumbered Property that becomes damaged or worn. (b) To as presently used and enjoyed are located in the extent public right-of-way abutting the same exist on the date hereof or Encumbered Property, and all such utilities are obtained in connection with future permitted alterations, each Grantor shall maintain a complete set of final plans, specifications, blueprints and drawings for the Improvements either at connected so as to serve the Encumbered Property without passing over other property. All roads necessary for the full utilization of the Encumbered Property for its current purpose have been completed and dedicated to public use and accepted by all governmental authorities or in a particular office at are the headquarters subject of such Grantor to which the Collateral Agent shall have access upon reasonable advance notice. The Mortgagor shall promptly notify the Mortgagee of any proposed zoning reclassification, variance, conditional or special use permit, subdivision plat or annexation affecting the Land. Each Grantor shall at all times comply in all material respects with, and is currently in compliance in all material respects with, all of its obligations under all recorded restrictions, conditions, easements and covenants (“Restrictive Covenants”) encumbering the Land and shall duly enforce its rights under all Restrictive Covenants encumbering other property for the benefit of the Premises. If any Grantor receives any notice (whether oral or written) that any Restrictive Covenant has been violated, then such Grantor shall promptly notify the Collateral Agent and take such steps as the Collateral Agent may reasonably require to correct such violationEncumbered Property.

Encumbered Property. Such Grantor is not a beneficiary or assignee under any letter of credit as of the Closing Date other than the letters of credit described on Schedule 4.11. Each letter of credit listed on Schedule 4.11 constitutes a Supporting Obligation for another item of the Collateral. (a) Except in On the ordinary course of business or as otherwise permitted in the Credit AgreementPetition Date, no Grantor owns any fee interest in real estate and, thus, no Grantor owns any asset that constitutes “Premises” or “Encumbered Property”. (b) Upon entry of the Financing Orders, each Grantor has good, marketable, insurable, indefeasible, fee simple title to any Land and Improvements will be altered owned by such Grantor, subject to Permitted Encumbrances. Each Grantor has good and marketable title to or valid leasehold interests in any material respect other Encumbered Property held by such Grantor. (c) Each Grantor has good and lawful right and full power and authority to encumber or demolished grant a security interest in any Encumbered Property held by such Grantor. The possession of any Encumbered Property has been peaceful and undisturbed and title thereto has not been disputed or removed in whole or 203367025 v9 in part by questioned to the Grantors without best of such Grantor’s knowledge. Each Grantor will forever warrant, defend and preserve any title to any Encumbered Property, the prior written consent rights of the Collateral Agent. No Personal Property shall be removed by Secured Parties therein under the Grantors, except that Security Documents and the Grantors shall have the right to remove validity and dispose of, free priority of the Lien of the Collateral Documents, such Personal Property as may, from time to time, become worn out or obsolete in Security Documents thereon against the normal course claims of business. all persons and parties. (d) The Grantors will maintain and keep the Encumbered Property in good condition and repair, reasonable wear and tear and damage by casualty excepted, Permitted Encumbrances do not and will not commit materially and adversely affect (i) the ability of the relevant Grantor to perform its obligations hereunder and the other Loan Documents to which it is a party or (ii) the use of any waste on the Encumbered Property or make any alteration to, or change in for the use ofcurrently being made thereof, the Encumbered Property that will materially diminish the utility thereof for the operation of any Encumbered Property as currently being operated or the business conducted thereon or increase the risk of fire or other hazard and in no event shall any such alteration or change be contrary to the terms value of any insurance policy required to be kept pursuant to the Credit Agreement. Subject to the terms of the Credit Agreement, the Grantors shall promptly repair, replace or rebuild any part of the Encumbered Property that becomes damaged or wornProperty. (be) To Any Encumbered Property has adequate rights of access to public ways and is served by adequate water, sewer, sanitary sewer and storm drain facilities. All public utilities necessary to the extent continued use and enjoyment of any Encumbered Property as presently used and enjoyed are located in the same exist on public right-of-way abutting any Encumbered Property, and all such utilities are connected so as to serve any Encumbered Property without passing over other property. All roads necessary for the date hereof full utilization of any Encumbered Property for its current purpose have been completed and dedicated to public use and accepted by all governmental authorities or are obtained in connection with future permitted alterations, each Grantor shall maintain a complete set the subject of final plans, specifications, blueprints and drawings for the Improvements either at the Encumbered Property or in a particular office at the headquarters of such Grantor to which the Collateral Agent shall have access upon reasonable advance notice. The Mortgagor shall promptly notify the Mortgagee of any proposed zoning reclassification, variance, conditional or special use permit, subdivision plat or annexation affecting the Land. Each Grantor shall at all times comply in all material respects with, and is currently in compliance in all material respects with, all of its obligations under all recorded restrictions, conditions, easements and covenants (“Restrictive Covenants”) encumbering the Land and shall duly enforce its rights under all Restrictive Covenants encumbering other property for the benefit of such Encumbered Property. (f) Any Premises consists of a single tax lot or multiple tax lots, no portion of said tax lot(s) covers property other than such Premises or a portion of such Premises and no portion of the PremisesPremises lies in any other tax lot. If Any Premises consists of one or more legally subdivided lots. (g) There are no pending or, to the knowledge of the Grantors, proposed special or other assessments for public improvements or otherwise affecting any Grantor receives Encumbered Property, nor, to the knowledge of the Grantor, are there any notice contemplated improvements to any Encumbered Property that may result in such special or other assessments. (whether oral or writtenh) that any Restrictive Covenant has been violatedTo the best of the Grantors’ knowledge, then such Grantor shall promptly notify except as disclosed on the current survey of the Premises delivered to the Collateral Agent prior to the date hereof, no Improvements on any Land are located in a flood hazard area as defined by the Director of the Federal Emergency Management Agency. (i) No Premises is subject to any Leases other than the Leases described in Schedule 4.14. No tenant, person, party, firm, corporation or other entity has an option to purchase any Encumbered Property, any portion thereof or any interest therein. (j) Any Encumbered Property has not been damaged by fire, water, wind or other cause of loss, or any previous damage to any Encumbered Property has been fully restored. No part of any property subject to the Collateral Documents has been taken in condemnation or other like proceeding nor, to the Grantors’ knowledge, is any proceeding pending, threatened or known to be contemplated for the partial or total condemnation or taking of any Encumbered Property. The foregoing representations and take such steps as warranties will be true and correct in all respects with respect to any additional Collateral or additional specific descriptions of certain Collateral delivered to the Collateral Agent may reasonably require in the future by any Grantor. The failure of any of these representations or warranties or any description of Collateral therein to correct be accurate or complete shall not impair the security interest in any such violationCollateral.

Encumbered Property. (a) Except in the ordinary course of business or as otherwise permitted in the Credit Agreement, no Improvements will be altered in any material respect or demolished or removed in whole or 203367025 v9 in part by the Grantors without the prior written consent of the Collateral Agent. No Personal Property shall be removed by the Grantors, except that the Grantors shall have the right to remove and dispose of, free of the Lien of the Collateral Documents, such Personal Property as may, from time to time, become worn out or obsolete in the normal course of business; and the Grantors may otherwise conduct Dispositions not prohibited by the Credit Agreement. The Grantors will maintain and keep the any Encumbered Property in good condition and repair, reasonable wear and tear and damage by casualty excepted, and will not commit any waste on the any Encumbered Property or make any alteration to, or change in the use of, the any Encumbered Property that will materially diminish the utility thereof for the operation of the business conducted thereon or increase the risk of fire or other hazard and in no event shall any such alteration or change be contrary to the terms of any insurance policy required to be kept pursuant to the Credit Agreement. Subject to the terms of the Credit Agreement, the Grantors shall promptly repair, replace or rebuild any part of the any Encumbered Property that becomes damaged or worn. (b) To the extent the same exist on the date hereof or are obtained in connection with future permitted alterations, each Grantor shall maintain a complete set of final plans, specifications, blueprints and drawings for the Improvements either at the any Encumbered Property or in a particular office at the headquarters of such Grantor to which the Collateral Agent shall have access upon reasonable advance notice. The Mortgagor Grantors shall promptly notify the Mortgagee Collateral Agent of any proposed zoning reclassification, variance, conditional or special use permit, subdivision plat or annexation affecting the any Land. Each Grantor shall at all times comply in all material respects with, and is currently in compliance in all material respects with, all of its obligations under all recorded restrictions, conditions, easements and covenants (“Restrictive Covenants”) encumbering the any Land and shall duly enforce its rights under all Restrictive Covenants encumbering other property for the benefit of the Premises. If any Grantor receives any notice (whether oral or written) that any Restrictive Covenant has been violated, then such Grantor shall promptly notify the Collateral Agent and take such steps as the Collateral Agent may reasonably require to correct such violation.