Assignment of Leases and Property Income. (a) Borrower hereby absolutely, presently, unconditionally and irrevocably assigns, transfers and sets over to Lender all of the right, title and interest of Borrower in and to the Leases and the Property Income. Except in connection with the Permitted Subordinated Financing, Borrower shall not otherwise assign, transfer or encumber in any manner the Leases or the Property Income or any portion thereof. Borrower shall have a license, revocable by Lender, to collect and use the Property Income as the same becomes due and payable so long as no Event of Default has occurred which had not been cured to Lender’s satisfaction as evidenced by a prior written agreement from Lender acknowledging Lender’s acceptance of said cure, but may not collect any Property Income more than 30 days in advance of the date the same becomes due. The assignment in this Section 2.19 shall constitute an absolute, irrevocable and present assignment of the Leases and the Property Income, and not an additional assignment for security, and the existence or exercise of Borrower’s revocable license to collect Property Income shall not operate to subordinate this assignment to any subsequent assignment. The exercise by Lender of any of its rights or remedies under this Section 2.19 shall not be deemed or construed to make Lender: (i) a mortgagee-in-possession; (ii) responsible for the payment of any taxes or assessments with respect to the Premises; (iii) liable to perform any obligation of the lessor under any Lease(s) or under applicable law; (iv) liable to any person for any dangerous or defective condition in the Premises or for any negligence in the management, upkeep, repair, or control of the Premises resulting in loss or injury or death to any Person; or (v) be liable in any manner for the remediation of any environmental impairment. (b) Except as permitted by Section 2.19(d) and other than residential Leases relating to residential multifamily property, all Leases and amendments, modifications and renewals of existing Leases, shall be subject to the prior review and approval of Lender and its counsel, at Borrower’s expense. Except as otherwise consented to by Lender, all Leases shall be written on the standard form of lease, which shall have been approved by Lender. No material changes may be made to the Lender-approved standard lease form without the prior consent of Lender. All Leases shall be at rental rates and on terms comparable to existing local market rates and terms and shall be arms-length transactions with bona fide, independent third party tenants. All Leases shall provide that they are subordinate to this Deed of Trust and that the lessee agrees to attorn to Lender. Borrower shall furnish Lender with executed copies of all Leases, amendments, modifications and renewals of existing Leases within 20 days after execution thereof. (c) Borrower shall perform all obligations as lessor under all Leases and shall enforce all of the terms, covenants and conditions therein contained upon the part of the lessee to be performed or observed, short of termination thereof. Additionally, Borrower shall not take any action which would cause any Lease to cease to be in full force and effect. Except with the prior consent of Lender or as permitted by Section 2.19(d) and 2.19(e) hereof, Borrower shall not: (i) cancel, terminate (with the exception of a residential Lease relating to a multifamily property carried out in the manner of a prudent landlord in the ordinary course of business), surrender, sublet or assign any Lease or consent to any cancellation, termination (with the exception of a residential Lease relating to a multifamily property carried out in the manner of a prudent landlord in the ordinary course of business), surrender, subletting or assignment thereof; (ii) subordinate any Lease to any mortgage, deed of trust or other security interest that is subordinate to this Deed of Trust; (iii) enter into any new Lease or amend, modify or renew any existing Lease (except as permitted in Section 2.19(d)); (iv) waive any default under or breach of any Lease; (v) consent to or accept any prepayment or discount of rent or advance rent under any Lease; (vi) take any other action in connection with any Lease which may impair or jeopardize the validity of such Lease or Lender’s interest therein; or (vii) alter, modify or change the terms of any guaranty, letter of credit or other credit support with respect to any of the Leases or cancel or terminate such guaranty, letter of credit or other credit support without the prior consent of Lender. (d) Notwithstanding Section 2.19(b), Lender’s prior consent shall not be required for entering into any new Lease or renewing, amending or modifying any existing Lease covering 3,000 square feet of net rentable area or less (after taking into account such amendment or modification), or a residential Lease relating to a residential multifamily property, provided that: (i) the Lease utilized is on a standard form previously approved by Lender, without material modification; (ii) the Lease (including any amendments or modifications) represents an arm’s- length transaction with a bona fide, independent third party tenant and provides for rental rates and terms comparable to existing local market rates and terms; (iii) neither the Lease (including any amendments or modifications) nor the activity of the tenant will violate any provision of any other Lease or restriction or covenant affecting the Premises or this Deed of Trust or any other Loan Document, including Section 2.20(b); (iv) the Lease contains no purchase options; (v) the Lease contains no rights of first refusal, no rights to lease other space, or expansion rights, so that the total space would exceed 3,000 net rentable square feet. Except for residential Leases relating to a multifamily property, notice and copies of which shall be furnished only upon request, Borrower shall give Lender notice of any Lease, renewal, amendment or modification thereof described in this Section 2.19(d), together with a fully executed and complete copy of such Lease, renewal, amendment or modification not later than 10 days after the execution thereof. In determining under this subsection (d) whether a Lease is for more than 3,000 square feet of net rentable area of the Premises, all space leased to any one tenant (whether pursuant to one or more Lease) shall be aggregated. If Lender and its loan servicer, Babson Capital Management LLC (Babson Capital Management LLC or any successor servicer thereof, the “Servicer”), both fail to respond to a request to approve or disapprove any proposed Lease (including any Lease modifications, amendments and extensions) within ten (10) Business Days following Borrower’s delivery to Lender and the Servicer, in accordance with the notice requirements set forth in this Deed of Trust, of (i) a true, correct and complete copy of any proposed final Lease (or Lease amendment, modification or extension, as the case may be), (ii) a blacklined copy of the final lease showing differences from the standard lease form previously approved by Lender, (iii) a lease summary letter describing in reasonable detail all of the material terms of the lease, (iv) a written description of all financial and operational information relating to the proposed tenant, including a description of tenant’s business, industry, operations and owners, (v) income statements, balance sheets and cash flow statements for the tenant for the last 2 years, (vi) a credit report for the tenant (if available) and (vii) a written request delivered to Lender requesting its approval of such Lease (or Lease amendment, modification or extension, as the case may be), then Lender shall be deemed to have approved of such Lease, or Lease amendment, modification or extension, as the case may be. (e) Notwithstanding anything in Section 2.19 to the contrary, Borrower may terminate any Lease without Lender’s prior consent unless a termination fee of $200,000 or more is to be collected by Borrower, in which event Lender’s prior written consent to such termination shall be required. (f) In addition to the foregoing, Borrower shall comply with all terms and provisions of the Assignment. (g) Upon Lender’s request, Borrower shall deliver to Lender any or all of the tenant security deposits, including any letters of credit, under the Leases, together with: (i) any assignment of the proceeds of such security deposits; (ii) any assignment and transfer of such letters of credit or the proceeds thereof; and (iii) any tenants’ consents to assignment of such security deposits and assignment and transfer of such letters of credit, as Lender shall reasonably request. All security deposits delivered to Lender shall be held without interest and may be commingled with Lender’s other funds (unless the payment of interest thereon and a separate account therefor is required under applicable tenant leases or by law). (h) Borrower hereby agrees that Lender may authorize and direct the tenants named in the Leases and all Lease guarantors, to pay over to Lender or such other party as Lender may direct, all Property Income upon receipt from Lender of written notice to the effect that an Event of Default exists, and to continue to do so until the tenants and Lease guarantors are otherwise notified by Lender. (i) Upon the occurrence of an Event of Default, Lender may, with or without exercising any other rights or remedies: (i) give or require Borrower to give notice to any or all tenants under the Leases authorizing and directing them to pay all Property Income under the Leases directly to Lender; and (ii) without regard to any waste, adequacy of the security or solvency of Borrower, apply for the appointment of a receiver of the Mortgaged Property to which appointment Borrower hereby consents, whether or not foreclosure proceedings have been commenced under this Deed of Trust and whether or not a foreclosure sale has occurred. (j) If any tenant is required to pay a lease termination fee as a result of such tenant terminating its Lease, upon such Lease termination, the amount so required to be paid by such tenant shall be collaterally assigned to Lender as additional collateral for the Loan and deposited with Lender in an interest bearing account (the “Lease Termination Escrow Account”), with interest accruing for the benefit of Borrower. Once the space vacated as a result of the Lease termination is occupied and the new tenant is paying rent, the portion of the Lease Termination Escrow Account relating to the Lease termination payment for the applicable space (inclusive of interest attributable thereto) shall be refunded to Borrower. Should an Event of Default occur, the funds so deposited may be applied in payment of the charges for which such funds shall have been deposited or to the payment of the Indebtedness or any other charges affecting the Mortgaged Property, as Lender in its sole discretion may determine, but no such application shall be deemed to have been made by operation of law or otherwise until actually made by Lender as herein provided.
Appears in 1 contract
Samples: Deed of Trust and Security Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Assignment of Leases and Property Income. (a) Borrower hereby absolutely, presently, absolutely and unconditionally assigns and irrevocably assigns, transfers and sets over to Lender all of the right, title and interest of Borrower in and to the Leases and the Property Income. Except in connection with the Permitted Subordinated Financing, Borrower shall not otherwise assign, transfer or encumber in any manner the Leases or the Property Income or any portion thereof. Borrower shall have a license, revocable by Lender, license to collect and use the Property Income as the same becomes due and payable payable, revocable by Lender, so long as no Event of Default has occurred which had not been cured to Lender’s satisfaction as evidenced by a prior written agreement from Lender acknowledging Lender’s acceptance of said cureoccurred, but may not collect any Property Income more than 30 days in advance of the date the same becomes due. The assignment in this Section 2.19 shall constitute an absolute, irrevocable absolute and present assignment of the Leases and the Property Income, and not an additional assignment for security, and the existence or exercise of the Borrower’s 's revocable license to collect Property Income shall not operate to subordinate this assignment to any subsequent assignment. The exercise by Lender of any of its rights or remedies under this Section 2.19 shall not be deemed or construed to make Lender: (i) Lender a mortgagee-in-possession; (ii. The assignments contained in this Section 2.19(a) responsible for shall automatically terminate and be null and void ab initio upon the payment of any taxes or assessments with respect to the Premises; (iii) liable to perform any obligation repayment of the lessor under any Lease(s) Indebtedness or under applicable law; (iv) liable to any person for any dangerous or defective condition in the Premises or for any negligence in the management, upkeep, repair, or control release of the Premises resulting in loss or injury or death to any Person; or (v) be liable in any manner for the remediation this Deed of any environmental impairmentTrust.
(b) Except as permitted by Section 2.19(d) and other than residential Leases relating to residential multifamily property, Borrower shall furnish Lender with executed copies of all Leases and amendments, modifications within 10 days after execution thereof. All proposed Leases and renewals of existing Leases, shall be subject to the prior review and approval of Lender and its counsel, at Borrower’s expense. Except as otherwise consented to by Lender, all Leases shall be written on the standard form of lease, which shall have been approved by Lender. No material changes may be made to the Lender-approved standard lease form without the prior consent of Lender. All Leases shall be at rental rates and on terms comparable to existing local market rates and terms and shall be arms-length transactions with bona fide, independent third party tenants; provided, however, that renewals of existing Leases may be made with the existing parties thereto and upon substantially the same terms as such existing Leases. All new Leases shall provide that they are subordinate to this Deed of Trust and that the lessee agrees to attorn to Lender. Borrower shall furnish Lender with executed copies of all Leases, amendments, modifications All proposed Leases and renewals of existing Leases within 20 days after execution thereof(other than Leases described in Subsection 2.19(d)) shall be subject to the prior review and reasonable approval of Lender and its counsel, at Borrower's expense.
(c) Borrower shall perform all obligations as lessor under all Leases and shall enforce all of the terms, covenants and conditions therein contained in upon the part of the lessee thereunder to be performed or observed, short of termination thereof. Additionally, Borrower shall not take any action which would cause any Lease to cease to be in full force and effect. Except with the prior consent of Lender or as permitted by Section 2.19(d) and 2.19(e) hereofLender, not to be unreasonably withheld, Borrower shall not: not (i) cancel, terminate (with other than exercising Borrower's rights to terminate any Lease upon a lessee's default thereunder and subject to the exception terms of a residential Lease relating to a multifamily property carried out in the manner of a prudent landlord in the ordinary course of businessSection 2.25(d) hereof), surrender, sublet or assign any Lease or consent to any cancellation, termination (with the exception of a residential Lease relating to a multifamily property carried out in the manner of a prudent landlord in the ordinary course of business)termination, surrender, subletting or assignment thereof; (ii) amend, modify or subordinate any Lease to any mortgage, deed of trust or other security interest that is subordinate to this Deed of Trust; (iii) enter into any new Lease or amend, modify or renew any existing Lease (except as permitted in Section 2.19(d)); (iv) waive any default under or breach of any Lease; (v) consent to or accept any prepayment or discount of rent or advance rent under any Lease; (vi) take any other action in connection with any Lease which may impair or jeopardize the validity of such Lease or Lender’s interest therein; or (vii) alter, modify or change the terms of any guaranty, letter of credit or other credit support with respect to any of the Leases or cancel or terminate such guaranty, letter of credit or other credit support without the prior consent of Lender.
(d) Notwithstanding Section 2.19(b), Lender’s prior consent shall not be required for entering into any new Lease or renewing, amending or modifying any existing Lease covering 3,000 square feet of net rentable area or less (after taking into account such amendment or modification), or a residential Lease relating to a residential multifamily property, provided that: (i) the Lease utilized is on a standard form previously approved by Lender, without material modification; (ii) the Lease (including any amendments or modifications) represents an arm’s- length transaction with a bona fide, independent third party tenant and provides for rental rates and terms comparable to existing local market rates and terms; (iii) neither the Lease (including any amendments or modifications) nor the activity of the tenant will violate any provision of any other Lease or restriction or covenant affecting the Premises or this Deed of Trust or any other Loan Document, including Section 2.20(b); (iv) the Lease contains no purchase options; (v) the Lease contains no rights of first refusal, no rights to lease other space, or expansion rights, so that the total space would exceed 3,000 net rentable square feet. Except for residential Leases relating to a multifamily property, notice and copies of which shall be furnished only upon request, Borrower shall give Lender notice of any Lease, renewal, amendment or modification thereof described in this Section 2.19(d), together with a fully executed and complete copy of such Lease, renewal, amendment or modification not later than 10 days after the execution thereof. In determining under this subsection (d) whether a Lease is for more than 3,000 square feet of net rentable area of the Premises, all space leased to any one tenant (whether pursuant to one or more Lease) shall be aggregated. If Lender and its loan servicer, Babson Capital Management LLC (Babson Capital Management LLC or any successor servicer thereof, the “Servicer”), both fail to respond to a request to approve or disapprove any proposed Lease (including any Lease modifications, amendments and extensions) within ten (10) Business Days following Borrower’s delivery to Lender and the Servicer, in accordance with the notice requirements set forth in this Deed of Trust, of (i) a true, correct and complete copy of any proposed final Lease (or Lease amendment, modification or extension, as the case may be), (ii) a blacklined copy of the final lease showing differences from the standard lease form previously approved by Lender, (iii) a lease summary letter describing in reasonable detail all of the material terms of the lease, (iv) a written description of all financial and operational information relating to the proposed tenant, including a description of tenant’s business, industry, operations and owners, (v) income statements, balance sheets and cash flow statements for the tenant for the last 2 years, (vi) a credit report for the tenant (if available) and (vii) a written request delivered to Lender requesting its approval of such Lease (or Lease amendment, modification or extension, as the case may be), then Lender shall be deemed to have approved of such Lease, or Lease amendment, modification or extension, as the case may be.
(e) Notwithstanding anything in Section 2.19 to the contrary, Borrower may terminate any Lease without Lender’s prior consent unless a termination fee of $200,000 or more is to be collected by Borrower, in which event Lender’s prior written consent to such termination shall be required.
(f) In addition to the foregoing, Borrower shall comply with all terms and provisions of the Assignment.
(g) Upon Lender’s request, Borrower shall deliver to Lender any or all of the tenant security deposits, including any letters of credit, under the Leases, together with: (i) any assignment of the proceeds of such security deposits; (ii) any assignment and transfer of such letters of credit or the proceeds thereof; and (iii) any tenants’ consents to assignment of such security deposits and assignment and transfer of such letters of credit, as Lender shall reasonably request. All security deposits delivered to Lender shall be held without interest and may be commingled with Lender’s other funds (unless the payment of interest thereon and a separate account therefor is required under applicable tenant leases or by law).
(h) Borrower hereby agrees that Lender may authorize and direct the tenants named in the Leases and all Lease guarantors, to pay over to Lender or such other party as Lender may direct, all Property Income upon receipt from Lender of written notice to the effect that an Event of Default exists, and to continue to do so until the tenants and Lease guarantors are otherwise notified by Lender.
(i) Upon the occurrence of an Event of Default, Lender may, with or without exercising any other rights or remedies: (i) give or require Borrower to give notice to any or all tenants under the Leases authorizing and directing them to pay all Property Income under the Leases directly to Lender; and (ii) without regard to any waste, adequacy of the security or solvency of Borrower, apply for the appointment of a receiver of the Mortgaged Property to which appointment Borrower hereby consents, whether or not foreclosure proceedings have been commenced under this Deed of Trust and whether or not a foreclosure sale has occurred.
(j) If any tenant is required to pay a lease termination fee as a result of such tenant terminating its Lease, upon such Lease termination, the amount so required to be paid by such tenant shall be collaterally assigned to Lender as additional collateral for the Loan and deposited with Lender in an interest bearing account (the “Lease Termination Escrow Account”), with interest accruing for the benefit of Borrower. Once the space vacated as a result of the Lease termination is occupied and the new tenant is paying rent, the portion of the Lease Termination Escrow Account relating to the Lease termination payment for the applicable space (inclusive of interest attributable thereto) shall be refunded to Borrower. Should an Event of Default occur, the funds so deposited may be applied in payment of the charges for which such funds shall have been deposited or to the payment of the Indebtedness or any other charges affecting the Mortgaged Property, as Lender in its sole discretion may determine, but no such application shall be deemed to have been made by operation of law or otherwise until actually made by Lender as herein provided.is
Appears in 1 contract
Samples: Deed of Trust and Security Agreement (Felcor Lodging Trust Inc)
Assignment of Leases and Property Income. (a) Borrower hereby absolutely, presently, absolutely and unconditionally assigns and irrevocably assigns, transfers and sets over to Lender all of the right, title and interest of Borrower in and to the Leases and the Property Income. Except in connection with the Permitted Subordinated Financing, Borrower shall not otherwise assign, transfer or encumber in any manner the Leases or the Property Income or any portion thereof. Borrower shall have a license, revocable by Lender, license to collect and use the Property Income as the same becomes due and payable payable, revocable by Lender, so long as no Event of Default has occurred which had not been cured to Lender’s satisfaction as evidenced by a prior written agreement from Lender acknowledging Lender’s acceptance of said cureoccurred, but may not collect any Property Income more than 30 days in advance of the date the same becomes due. The assignment in this Section 2.19 shall constitute an absolute, irrevocable absolute and present assignment of the Leases and the Property Income, and not an additional assignment for security, and the existence or exercise of the Borrower’s 's revocable license to collect Property Income shall not operate to subordinate this assignment to any subsequent assignment. The exercise by Lender of any of its rights or remedies under this Section 2.19 shall not be deemed or construed to make Lender: (i) Lender a mortgagee-in-possession; (ii. The assignments contained in this Section 2.19(a) responsible for shall automatically terminate and be null and void ab initio upon the payment of any taxes or assessments with respect to the Premises; (iii) liable to perform any obligation repayment of the lessor under any Lease(s) Indebtedness or under applicable law; (iv) liable to any person for any dangerous or defective condition in the Premises or for any negligence in the management, upkeep, repair, or control release of the Premises resulting in loss or injury or death to any Person; or (v) be liable in any manner for the remediation this -- ------ Deed of any environmental impairmentTrust.
(b) Except as permitted by Section 2.19(d) and other than residential Leases relating to residential multifamily property, Borrower shall furnish Lender with executed copies of all Leases and amendments, modifications within 10 days after execution thereof. All proposed Leases and renewals of existing Leases, shall be subject to the prior review and approval of Lender and its counsel, at Borrower’s expense. Except as otherwise consented to by Lender, all Leases shall be written on the standard form of lease, which shall have been approved by Lender. No material changes may be made to the Lender-approved standard lease form without the prior consent of Lender. All Leases shall be at rental rates and on terms comparable to existing local market rates and terms and shall be arms-length transactions with bona fide, independent third party tenants; provided, however, that renewals of existing Leases may be made with the existing parties thereto and upon substantially the same terms as such existing Leases. All new Leases shall provide that they are subordinate to this Deed of Trust and that the lessee agrees to attorn to Lender. Borrower shall furnish Lender with executed copies of all Leases, amendments, modifications All proposed Leases and renewals of existing Leases within 20 days after execution thereof(other than Leases described in Subsection 2.19(d)) shall be subject to the prior review and reasonable approval of Lender and its counsel, at Borrower's expense.
(c) Borrower shall perform all obligations as lessor under all Leases and shall enforce all of the terms, covenants and conditions therein contained in upon the part of the lessee thereunder to be performed or observed, short of termination thereof. Additionally, Borrower shall not take any action which would cause any Lease to cease to be in full force and effect. Except with the prior consent of Lender or as permitted by Section 2.19(d) and 2.19(e) hereofLender, not to be unreasonably withheld, Borrower shall not: not (i) cancel, terminate (with other than exercising Borrower's rights to terminate any Lease upon a lessee's default thereunder and subject to the exception terms of a residential Lease relating to a multifamily property carried out in the manner of a prudent landlord in the ordinary course of businessSection 2.25(d) hereof), surrender, sublet or assign any Lease or consent to any cancellation, termination (with the exception of a residential Lease relating to a multifamily property carried out in the manner of a prudent landlord in the ordinary course of business)termination, surrender, subletting or assignment thereof; (ii) amend, modify or subordinate any Lease to any mortgage, deed of trust or other security interest that is subordinate to this Deed of Trust; (iii) enter into any new Lease or amend, modify or renew any existing Lease (except as permitted in Section 2.19(d)) below); (iv) waive any default under or breach of any Lease; (v) consent to or accept any prepayment or discount of rent or advance rent under any Lease; (vi) take any other action in connection with any Lease which may impair or jeopardize the validity of such Lease or Lender’s interest therein; or (vii) alter, modify or change the terms of any guaranty, letter of credit or other credit support with respect to any of the Leases or cancel or terminate such guaranty, letter of credit or other credit support without the prior consent of Lender.
(d) Notwithstanding Section 2.19(b), Lender’s prior consent shall not be required for entering into any new Lease or renewing, amending or modifying any existing Lease covering 3,000 square feet of net rentable area or less (after taking into account such amendment or modification), or a residential Lease relating to a residential multifamily property, provided that: (i) the Lease utilized is on a standard form previously approved by Lender, without material modification; (ii) the Lease (including any amendments or modifications) represents an arm’s- length transaction with a bona fide, independent third party tenant and provides for rental rates and terms comparable to existing local market rates and terms; (iii) neither the Lease (including any amendments or modifications) nor the activity of the tenant will violate any provision of any other Lease or restriction or covenant affecting the Premises or this Deed of Trust or any other Loan Document, including Section 2.20(b); (iv) the Lease contains no purchase options; (v) the Lease contains no rights of first refusal, no rights to lease other space, or expansion rights, so that the total space would exceed 3,000 net rentable square feet. Except for residential Leases relating to a multifamily property, notice and copies of which shall be furnished only upon request, Borrower shall give Lender notice of any Lease, renewal, amendment or modification thereof described in this Section 2.19(d), together with a fully executed and complete copy of such Lease, renewal, amendment or modification not later than 10 days after the execution thereof. In determining under this subsection (d) whether a Lease is for more than 3,000 square feet of net rentable area of the Premises, all space leased to any one tenant (whether pursuant to one or more Lease) shall be aggregated. If Lender and its loan servicer, Babson Capital Management LLC (Babson Capital Management LLC or any successor servicer thereof, the “Servicer”), both fail to respond to a request to approve or disapprove any proposed Lease (including any Lease modifications, amendments and extensions) within ten (10) Business Days following Borrower’s delivery to Lender and the Servicer, in accordance with the notice requirements set forth in this Deed of Trust, of (i) a true, correct and complete copy of any proposed final Lease (or Lease amendment, modification or extension, as the case may be), (ii) a blacklined copy of the final lease showing differences from the standard lease form previously approved by Lender, (iii) a lease summary letter describing in reasonable detail all of the material terms of the lease, (iv) a written description of all financial and operational information relating to the proposed tenant, including a description of tenant’s business, industry, operations and owners, (v) income statements, balance sheets and cash flow statements for the tenant for the last 2 years, (vi) a credit report for the tenant (if available) and (vii) a written request delivered to Lender requesting its approval of such Lease (or Lease amendment, modification or extension, as the case may be), then Lender shall be deemed to have approved of such Lease, or Lease amendment, modification or extension, as the case may be.
(e) Notwithstanding anything in Section 2.19 to the contrary, Borrower may terminate any Lease without Lender’s prior consent unless a termination fee of $200,000 or more is to be collected by Borrower, in which event Lender’s prior written consent to such termination shall be required.
(f) In addition to the foregoing, Borrower shall comply with all terms and provisions of the Assignment.
(g) Upon Lender’s request, Borrower shall deliver to Lender any or all of the tenant security deposits, including any letters of credit, under the Leases, together with: (i) any assignment of the proceeds of such security deposits; (ii) any assignment and transfer of such letters of credit or the proceeds thereof; and (iii) any tenants’ consents to assignment of such security deposits and assignment and transfer of such letters of credit, as Lender shall reasonably request. All security deposits delivered to Lender shall be held without interest and may be commingled with Lender’s other funds (unless the payment of interest thereon and a separate account therefor is required under applicable tenant leases or by law).
(h) Borrower hereby agrees that Lender may authorize and direct the tenants named in the Leases and all Lease guarantors, to pay over to Lender or such other party as Lender may direct, all Property Income upon receipt from Lender of written notice to the effect that an Event of Default exists, and to continue to do so until the tenants and Lease guarantors are otherwise notified by Lender.
(i) Upon the occurrence of an Event of Default, Lender may, with or without exercising any other rights or remedies: (i) give or require Borrower to give notice to any or all tenants under the Leases authorizing and directing them to pay all Property Income under the Leases directly to Lender; and (ii) without regard to any waste, adequacy of the security or solvency of Borrower, apply for the appointment of a receiver of the Mortgaged Property to which appointment Borrower hereby consents, whether or not foreclosure proceedings have been commenced under this Deed of Trust and whether or not a foreclosure sale has occurred.
(j) If any tenant is required to pay a lease termination fee as a result of such tenant terminating its Lease, upon such Lease termination, the amount so required to be paid by such tenant shall be collaterally assigned to Lender as additional collateral for the Loan and deposited with Lender in an interest bearing account (the “Lease Termination Escrow Account”), with interest accruing for the benefit of Borrower. Once the space vacated as a result of the Lease termination is occupied and the new tenant is paying rent, the portion of the Lease Termination Escrow Account relating to the Lease termination payment for the applicable space (inclusive of interest attributable thereto) shall be refunded to Borrower. Should an Event of Default occur, the funds so deposited may be applied in payment of the charges for which such funds shall have been deposited or to the payment of the Indebtedness or any other charges affecting the Mortgaged Property, as Lender in its sole discretion may determine, but no such application shall be deemed to have been made by operation of law or otherwise until actually made by Lender as herein provided.;
Appears in 1 contract
Assignment of Leases and Property Income. (a) Borrower Trustor hereby absolutely, presently, absolutely and unconditionally assigns and irrevocably assigns, transfers and sets over to Lender all of the right, title and interest of Borrower in and to the Leases and the Property Income. Except in connection with the Permitted Subordinated Financing, Borrower Trustor shall not otherwise assign, transfer or encumber in any manner the Leases or the Property Income or any portion thereof. Borrower shall have a license, revocable by Lender, license to collect and use the Property Income as the same becomes due and payable payable, revocable by Lender, so long as no Event of Default has occurred which had not been cured to Lender’s satisfaction as evidenced by a prior written agreement from Lender acknowledging Lender’s acceptance of said cureoccurred, but may not collect any Property Income more than 30 days in advance of the date the same becomes due. The assignment in this Section 2.19 shall constitute an absolute, irrevocable absolute and present assignment of the Leases and the Property Income, and not an additional assignment for security, and the existence or exercise of the Borrower’s 's revocable license to collect Property Income shall not operate to subordinate this assignment to any subsequent assignment. The exercise by Lender of any of its rights or remedies under this Section 2.19 shall not be deemed or construed to make Lender: (i) Lender a mortgagee-in-possession; (ii. The assignments contained in this Section 2.19(a) responsible for shall automatically terminate and be null and void ab initio upon the payment of any taxes or assessments with respect to the Premises; (iii) liable to perform any obligation repayment of the lessor under any Lease(s) Indebtedness or under applicable law; (iv) liable to any person for any dangerous or defective condition in the Premises or for any negligence in the management, upkeep, repair, or control release of the Premises resulting in loss or injury or death to any Person; or (v) be liable in any manner for the remediation this Deed of any environmental impairmentTrust.
(b) Except as permitted by Section 2.19(d) and other than residential Leases relating to residential multifamily property, Trustor shall furnish Lender with executed copies of all Leases and amendments, modifications within 10 days after execution thereof. All proposed Leases and renewals of existing Leases, shall be subject to the prior review and approval of Lender and its counsel, at Borrower’s expense. Except as otherwise consented to by Lender, all Leases shall be written on the standard form of lease, which shall have been approved by Lender. No material changes may be made to the Lender-approved standard lease form without the prior consent of Lender. All Leases shall be at rental rates and on terms comparable to existing local market rates and terms and shall be arms-length transactions with bona fide, independent third party tenants; provided, however, that renewals of existing Leases may be made with the existing parties thereto and upon substantially the same terms as such existing Leases. All new Leases shall provide that they are subordinate to this Deed of Trust and that the lessee agrees to attorn to Lender. Borrower shall furnish Lender with executed copies of all Leases, amendments, modifications All proposed Leases and renewals of existing Leases within 20 days after execution thereof(other than Leases described in Subsection 2.19(d)) shall be subject to the prior review and reasonable approval of Lender and its counsel, at Borrower's expense.
(c) Borrower Trustor shall perform all obligations as lessor under all Leases and shall enforce all of the terms, covenants and conditions therein contained in upon the part of the lessee thereunder to be performed or observed, short of termination thereof. Additionally, Borrower Trustor shall not take any action which would cause any Lease to cease to be in full force and effect. Except with the prior consent of Lender or as permitted by Section 2.19(d) and 2.19(e) hereofLender, Borrower not to be unreasonably withheld, Trustor shall not: not (i) cancel, terminate (with other than exercising Trustor's rights to terminate any Lease upon a lessee's default thereunder and subject to the exception terms of a residential Lease relating to a multifamily property carried out in the manner of a prudent landlord in the ordinary course of businessSection 2.25(d) hereof), surrender, sublet or assign any Lease or consent to any cancellation, termination (with the exception of a residential Lease relating to a multifamily property carried out in the manner of a prudent landlord in the ordinary course of business)termination, surrender, subletting or assignment thereof; (ii) amend, modify or subordinate any Lease to any mortgage, deed of trust or other security interest that is subordinate to this Deed of Trust; (iii) enter into any new Lease or amend, modify or renew any existing Lease (except as permitted in Section 2.19(d)) below); (iv) waive any default under or breach of any Lease; (v) consent to or accept any prepayment or discount of rent or advance rent under any Lease; (vi) other than exercising Trustor's rights to terminate any Lease upon a lessee's default thereunder (and subject to the terms of Section 2.25(d) hereof), take any other action in connection with any Lease which may impair or jeopardize the validity of such Lease or the Lender’s 's interest therein; or (vii) alter, modify or change the terms of any guaranty, letter of credit or other credit support with respect to any of the Leases or cancel or terminate such guaranty, letter of credit or other credit support without the prior written consent of Lender.
(d) Notwithstanding Section 2.19(b), Lender’s 's prior consent shall not be required for entering into any new Lease or renewing, amending or modifying any existing Lease covering 3,000 1,000 square feet of net rentable area or less (after taking into account such amendment or modification)less, or a residential Lease relating to a residential multifamily property, provided that: (i) the Lease utilized is on a standard form previously approved by Lender, without material modification; (ii) the Lease (including any amendments or modifications) represents an arm’s- length transaction with a bona fide, independent third party tenant and provides for rental rates and terms comparable to existing local market rates and terms; (iii) neither the Lease (including any amendments or modifications) nor the activity of the tenant will violate any provision of any other Lease or restriction or covenant affecting the Premises or this Deed of Trust or any other Loan Document, including Section 2.20(b); (iv) the Lease contains no purchase options; (v) the Lease contains no rights of first refusal, no rights to lease other space, or expansion rights, so that the total space would exceed 3,000 net rentable square feet. Except for residential Leases relating to a multifamily property, notice and copies of which shall be furnished only upon request, Borrower shall give Lender notice of any Lease, renewal, amendment or modification thereof described in this Section 2.19(d), together with a fully executed and complete copy of such Lease, renewal, amendment or modification not later than 10 days after the execution renewals thereof. In determining under this subsection (d) whether a Lease is for more than 3,000 square feet of net rentable area of the Premises, all space leased to any one tenant (whether pursuant to one or more Lease) shall be aggregated. If Lender and its loan servicer, Babson Capital Management LLC (Babson Capital Management LLC or any successor servicer thereof, the “Servicer”), both fail to respond to a request to approve or disapprove any proposed Lease (including any Lease modifications, amendments and extensions) within ten (10) Business Days following Borrower’s delivery to Lender and the Servicer, in accordance with the notice requirements set forth in this Deed of Trust, of (i) a true, correct and complete copy of any proposed final Lease (or Lease amendment, modification or extension, as the case may be), (ii) a blacklined copy of the final lease showing differences from the standard lease form previously approved by Lender, (iii) a lease summary letter describing in reasonable detail all of the material terms of the lease, (iv) a written description of all financial and operational information relating to the proposed tenant, including a description of tenant’s business, industry, operations and owners, (v) income statements, balance sheets and cash flow statements for the tenant for the last 2 years, (vi) a credit report for the tenant (if available) and (vii) a written request delivered to Lender requesting its approval of such Lease (or Lease amendment, modification or extension, as the case may be), then Lender shall be deemed to have approved of such Lease, or Lease amendment, modification or extension, as the case may be.
(e) Notwithstanding anything in Section 2.19 to the contrary, Borrower may terminate any Lease without Lender’s prior consent unless a termination fee of $200,000 or more is to be collected by Borrower, in which event Lender’s prior written consent to such termination shall be required.
(f) In addition to the foregoing, Borrower shall comply with all terms and provisions of the Assignment.
(g) Upon Lender’s request, Borrower shall deliver to Lender any or all of the tenant security deposits, including any letters of credit, under the Leases, together with: (i) any assignment of the proceeds of such security deposits; (ii) any assignment and transfer of such letters of credit or the proceeds thereof; and (iii) any tenants’ consents to assignment of such security deposits and assignment and transfer of such letters of credit, as Lender shall reasonably request. All security deposits delivered to Lender shall be held without interest and may be commingled with Lender’s other funds (unless the payment of interest thereon and a separate account therefor is required under applicable tenant leases or by law).
(h) Borrower hereby agrees that Lender may authorize and direct the tenants named in the Leases and all Lease guarantors, to pay over to Lender or such other party as Lender may direct, all Property Income upon receipt from Lender of written notice to the effect that an Event of Default exists, and to continue to do so until the tenants and Lease guarantors are otherwise notified by Lender.
(i) Upon the occurrence of an Event of Default, Lender may, with or without exercising any other rights or remedies: (i) give or require Borrower to give notice to any or all tenants under the Leases authorizing and directing them to pay all Property Income under the Leases directly to Lender; and (ii) without regard to any waste, adequacy of the security or solvency of Borrower, apply for the appointment of a receiver of the Mortgaged Property to which appointment Borrower hereby consents, whether or not foreclosure proceedings have been commenced under this Deed of Trust and whether or not a foreclosure sale has occurred.
(j) If any tenant is required to pay a lease termination fee as a result of such tenant terminating its Lease, upon such Lease termination, the amount so required to be paid by such tenant shall be collaterally assigned to Lender as additional collateral for the Loan and deposited with Lender in an interest bearing account (the “Lease Termination Escrow Account”), with interest accruing for the benefit of Borrower. Once the space vacated as a result of the Lease termination is occupied and the new tenant is paying rent, the portion of the Lease Termination Escrow Account relating to the Lease termination payment for the applicable space (inclusive of interest attributable thereto) shall be refunded to Borrower. Should an Event of Default occur, the funds so deposited may be applied in payment of the charges for which such funds shall have been deposited or to the payment of the Indebtedness or any other charges affecting the Mortgaged Property, as Lender in its sole discretion may determine, but no such application shall be deemed to have been made by operation of law or otherwise until actually made by Lender as herein provided.,
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Samples: Deed of Trust and Security Agreement (Felcor Lodging Trust Inc)