Leases and Rents. (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection. (b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender. (c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection. (d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 11 contracts
Samples: Mortgage and Security Agreement (Corporate Property Associates 15 Inc), Mortgage and Security Agreement (Corporate Property Associates 15 Inc), Deed of Trust and Security Agreement (Corporate Property Associates 15 Inc)
Leases and Rents. (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides Borrower absolutely and unconditionally assigns to Lender, Borrower’s right, title and interest in all current and future Leases and Rents as collateral for the Loan, it being intended by Borrower that this assignment constitutes a present, absolute assignment and not an assignment for additional security only. Such assignment to Lender shall not be construed to bind Lender to the performance of any of the covenants, conditions or provisions contained in any such Lease or otherwise impose any obligation upon Lender. Borrower shall execute and deliver to Lender such additional instruments, in form and substance reasonably satisfactory to Lender, as may hereafter be reasonably requested in writing by Lender to further evidence and confirm such assignment. Nevertheless, subject to the terms of this Section 5.1(z), Lender grants to Borrower a license to lease, maintain, operate and manage the Mortgaged Property and to collect, use and apply the Rents in accordance with the terms hereof and otherwise act as the landlord under the Leases, which license shall be deemed automatically revoked upon the occurrence and during the continuance of an Event of Default under this Agreement. Any portion of the Rents held by Borrower shall be held in trust for the benefit of Lender for use in the payment of the Indebtedness. Upon the occurrence of an Event of Default and during the continuance thereof, the license granted to Borrower herein shall automatically be revoked, and Lender shall immediately be entitled to possession of all Rents, whether or not Lender enters upon or takes control of the Mortgaged Property. Lender is hereby granted and assigned by Borrower the right, at its option, upon revocation of the license granted herein, to enter upon the Mortgaged Property in person, by agent or by court-appointed receiver to collect the Rents. Any Rents collected after the revocation of the license shall be applied toward payment of the Indebtedness as set forth in Section 2.8 hereof.
(ii) All Leases entered into by Borrower shall provide for rental rates and terms comparable to then-existing local market rates and terms and conditions commercially reasonable and consistent with then-prevailing local market terms and conditions for similar type properties, and in no event shall Borrower, absent Lender’s prior written consent, which consent shall not be unreasonably withheld or delayed, enter into any Leases (taking into account the type a) other than leases of Homesites to owners and quality occupants of the tenantresidential manufactured homes or mobile homes having lease terms not in excess of two years, and (b) with any Affiliates of Borrower, except as of the date such Lease is executed by indicated in Schedule 7 attached hereto. Borrower shall furnish Lender with (unless, 1) detailed term sheets in advance in the case of a Renewal Leaseany Leases, the rent payable during such renewalmodifications, amendments or a formula or other method to compute such rent, renewals for which Lender’s consent is provided for required and (2) in the original Lease)case of any other Leases, (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value executed copies of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is such Leases upon written on the standard form of lease approved by Lenderrequest. All proposed renewals or amendments or modifications of Leases which that do not satisfy the requirements set forth in of the first sentence of this Subsection 3.8(aSection 5.1(z)(ii) shall be subject to the prior approval of Lender, which approval shall not be unreasonably withheld or delayed. All Leases entered into after the Closing Date with new tenants (i.e. not renewals of existing tenants as of the Closing Date) shall be written on the standard lease form for new tenants previously approved by Lender and its counselwhich form as of the Closing Date is set forth on Schedule 10 attached hereto; provided that notwithstanding the foregoing, at Borrower's expense. the Borrower may modify any standard lease form without such approval to the extent necessary to conform such form to any applicable Legal Requirements (and, upon reasonable request of the Lender, the Borrower shall promptly deliver notify the Lender in writing with respect to Lender copies of all Leases such modification). The Borrower shall not materially change the standard lease form without Lender’s prior written consent, which are entered into pursuant consent shall not be unreasonably withheld or delayed, or except as necessary to this Subsection together comply with applicable Legal Requirements. Borrower's certification that it has satisfied all of the conditions of this Subsection.,
(b) Borrower (iA) shall observe and perform all of the material obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to materially impair the value of any of the Leases as security for the Debt; Indebtedness;
(iiB) upon request, shall promptly send copies to Lender not execute any other assignment of all notices lessor’s interest in any of default which Borrower shall send the Leases or receive thereunder; Rents;
(iiiC) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performedperformed and shall effect a termination or diminution of the obligations of tenants under leases, only in a manner that a prudent owner of a similar property to the Mortgaged Property would enforce such terms covenants and conditions or effect such termination or diminution in the ordinary course of business;
(ivD) except as otherwise set forth in the Monthly Statement submitted to Lender, shall not collect any of the Rents more than one (1) month in advance advance; and
(except security deposits shall not be deemed Rents collected in advance); (vE) shall not execute any other assignment convey or transfer or suffer or permit a conveyance or transfer of the lessor's Mortgaged Property or of any interest in any therein so as to effect a merger of the Leases estates and rights of, or a termination or diminution of the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their termsobligations of, without the prior written consent of Lenderlessees thereunder.
(ciii) Borrower mayshall deposit security deposits of lessees which are turned over to or for the benefit of Borrower or otherwise collected by or on behalf of Borrower, without into the consent Security Deposit Account and shall not commingle such funds with any other funds of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit Borrower. Any bond or other credit support with respect theretoinstrument which Borrower is permitted to hold in lieu of cash security deposits under any applicable Legal Requirements shall be maintained in full force and effect unless replaced by cash deposits as hereinabove described, shall, if permitted pursuant to Legal Requirements, name Lender as payee or mortgagee thereunder (or at Lender’s option, be fully assignable to Lender) provided that such action (taking into accountand shall, in the case all respects, comply with any applicable Legal Requirements and otherwise be reasonably satisfactory to Lender. Borrower shall, upon request, provide Lender with evidence reasonably satisfactory to Lender of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in Borrower’s compliance with the requirements foregoing. Upon the occurrence and during the continuance of this Security Instrument any Event of Default, Borrower shall, upon Lender’s request, if permitted by any applicable Legal Requirements, turn over to Lender the security deposits (and any subordinate agreement binding upon Lender interest theretofore earned thereon) with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value all or any portion of the Property taken as a whole. Any amendmentMortgaged Property, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall to be held by Lender subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all terms of the conditions of this SubsectionLeases.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 10 contracts
Samples: Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc)
Leases and Rents. (a) Except as otherwise consented to by Lender, all Leases shall be written on a standard form of lease which shall have been approved by Lender. Upon request, Borrower shall furnish Lender with executed copies of all Leases. No material changes may enter into a proposed Lease (including be made to the renewal or extension of an existing Lease (a "Renewal Lease")) Lender-approved standard lease without the prior written consent of Lender, provided such proposed Lease which consent shall not be unreasonably withheld or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lenderdelayed. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) leases shall be subject to the prior approval of Lender and its counselexcept that all proposed leases which (i) are on the same form of lease which has been approved by Lender, at Borrower's expense. Borrower shall promptly deliver (ii) are the result of an arms-length transaction, (iii) which provide for rental rates comparable to Lender copies existing market rates, (iv) where space to be leased does not exceed more than ten percent (10%) of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all total rentable space of the conditions Property, (v) where the proposed tenant is an independent third party not affiliated with the Borrower, and (vi) do not contain any terms which would materially affect Lender's rights under this Security Instrument, the Note or the Other Security Documents, shall not be subject to the prior approval of this Subsection.
Lender. Notwithstanding subsections (bii), (iii) and (v) above, Borrower may lease units to employees of Borrower, but the aggregate number of units leased to such employees shall not exceed 1.5% of the total number of units at the Property. Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases if the failure to perform or observe the same would materially and adversely affect the value of the Property taken as a whole and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce in a commercially reasonable manner all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performed; provided, however, with respect to multifamily residential property, a residential Lease may be terminated in the event of a default by the tenant thereunder; (iv) shall not collect any of the Rents more than one (1) month in advance (except provided that a security deposits deposit shall not be deemed Rents rent collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; (vi) shall not (A) materially alter, modify or change the terms of the Leases without the prior written consent of Lender, which consent shall not be unreasonably withheld or delayed if the alteration, modification or change does not materially and adversely affect the value of the Property taken as a whole and provided further that such Lease, as altered, modified or changed, is otherwise in compliance with the requirements of this Security Instrument, or (B) cancel or terminate any Lease (except for defaults thereunder) of more than ten (10%) percent of the rentable space of the Property or accept a surrender thereof or convey or transfer or suffer or permit a conveyance or transfer of the Land or of any interest therein so as to effect a merger of the estates and rights of, or a termination or diminution of the obligations of, lessees thereunder; (vii) shall not alter, modify or change the terms of any guaranty, letter of credit or other credit support with respect to the Leases (the "Lease Guaranty") or cancel or terminate such Lease Guaranty without the prior written consent of Lender; and (viviii) shall not consent to any assignment of or subletting under any the Leases not in accordance with their terms, without the prior written consent of Lender.
. Notwithstanding the foregoing, subdivisions (cii), (vi), (vii) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease and (including any guaranty, letter of credit or other credit support with respect theretoviii) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has apply to residential Leases for space in a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectionmultifamily residential property.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 6 contracts
Samples: Mortgage and Security Agreement (Pennsylvania Real Estate Investment Trust), Mortgage and Security Agreement (Pennsylvania Real Estate Investment Trust), Mortgage and Security Agreement (Pennsylvania Real Estate Investment Trust)
Leases and Rents. (ai) All Leases entered into by First Mortgage Borrower may shall provide for rental rates comparable to then-existing local market rates and terms and conditions commercially reasonable and consistent with then-prevailing local market terms and conditions for similar type properties, including commercially reasonable leasing commissions. Borrower shall not enter into a proposed Major Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of the Lender, provided such proposed Lease which consent shall not be unreasonably withheld or Renewal Lease delayed. Borrower shall furnish Lender with (i1) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, detailed term sheets in advance in the case of a Renewal Leaseany Leases, the rent payable during such renewalmodifications, amendments or a formula or other method to compute such rent, renewals for which Lender’s consent is provided for required and (2) in the original Lease)case of any other Leases, (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value executed copies of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is such Leases upon written on the standard form of lease approved by Lenderrequest. All proposed renewals or amendments or modifications of Leases which that do not satisfy the requirements set forth in of the first sentence of this Subsection 3.8(aSection 5.1(s)(i) shall be subject to the prior approval of Lender. All Leases shall be written on the standard lease form previously approved by Lender which form shall not be materially changed without Lender’s prior written consent. All Leases executed after the date hereof shall provide that they are subordinate to the First Mortgage, and its counsel, at Borrower's expensethat the lessee agrees to attorn to First Mortgage Lender. Borrower shall, or shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.cause First Mortgage Borrower to,
(bA) Borrower (i) shall observe and perform all of the material obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to materially impair the value of any of the Leases as security for the Debt; Indebtedness;
(iiB) upon request, shall promptly send copies to Lender of all written notices of default which First Mortgage Borrower shall send or receive thereunder; ;
(iiiC) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performedperformed and shall effect a termination or diminution of the obligations of tenants under leases, only in a manner that a prudent owner of a similar property to the Mortgaged Property would enforce such terms covenants and conditions or effect such termination or diminution in the ordinary course of business;
(ivD) shall not collect any of the Rents more than one (1) month in advance advance;
(except security deposits shall not be deemed Rents collected in advance); (vE) shall not execute any other assignment of the lessor's ’s interest in any of the Leases or the Rents; and
(F) not convey or transfer or suffer or permit a conveyance or transfer of the Mortgaged Property or of any interest therein so as to effect a merger of the estates and rights of, or a termination or diminution of the obligations of, lessees thereunder.
(viii) Borrower shall not consent cause First Mortgage Borrower to any assignment deposit security deposits of lessees which are turned over to or subletting under any Leases not for the benefit of First Mortgage Borrower or otherwise collected by or on behalf of First Mortgage Borrower into one or more Eligible Accounts in accordance with their termsthe First Mortgage Loan Agreement, without the prior written consent and not to commingle such funds with any other funds of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit First Mortgage Borrower. Any bond or other credit support with respect theretoinstrument which First Mortgage Borrower is permitted to hold in lieu of cash security deposits under any applicable Legal Requirements shall be maintained in full force and effect unless replaced by cash deposits as hereinabove described, shall, if permitted pursuant to Legal Requirements, name Lender as payee or mortgagee thereunder (or at Lender’s option, be fully assignable to Lender) provided that such action (taking into accountand shall, in the case all respects, comply with any applicable Legal Requirements and otherwise be reasonably satisfactory to Lender. Borrower shall, upon request, provide Lender with evidence reasonably satisfactory to Lender of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in Borrower’s compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectionforegoing.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 5 contracts
Samples: Loan Agreement (Thomas Properties Group Inc), Loan Agreement (Thomas Properties Group Inc), Loan Agreement (Thomas Properties Group Inc)
Leases and Rents. Trustor hereby irrevocably, absolutely, presently ---------------- and unconditionally assigns to Beneficiary the Leases and Rents of the Property. Beneficiary shall have the right to apply the Rents (aafter payment of all necessary expenses) Borrower to the Obligations. THIS IS AN ABSOLUTE ASSIGNMENT, NOT AN ASSIGNMENT FOR SECURITY ONLY. Subject to the terms of this paragraph, Beneficiary and Trustee waive the right to enter the Property for the purpose of collecting the Rents, and grant Trustor the right to collect the Rents. Trustor shall hold the Rents, or an amount sufficient to cover the payment of all operating expenses of the Property and to discharge all current sums due on the Obligations, in trust for use in payment of such current operating expenses and current sums due on the Obligations. The right of Trustor to collect the Rents may enter into be revoked by Beneficiary upon any default by Trustor under the terms of the Note or this Deed of Trust by giving notice of such revocation to Trustor. Following such notice Beneficiary or Trustee may retain and apply the Rents toward payment of the Obligations in such order, priority and proportions as Beneficiary, in its discretion, shall deem proper, or to the operation, maintenance and repair of the Property, and irrespective of whether Beneficiary or Trustee shall have commenced a proposed Lease (including foreclosure of this Deed of Trust or a sale of the renewal Property pursuant to the provisions of this Deed of Trust or extension shall have applied or arranged for the appointment of an existing Lease (a "Renewal Lease")) receiver. Trustor shall not, without the prior written consent of LenderBeneficiary, provided such proposed Lease make, or Renewal Lease suffer to be made, any Leases or modify or cancel (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality except based upon a material default of the tenant) as any Leases or accept prepayments of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any installments of the Rents for a period of more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute or further assign the whole or any other assignment part of the lessor's interest Rents. Trustor shall (a) fulfill or perform each and every provision of the Leases on the part of Trustor to be fulfilled or performed, (b) promptly send copies of all notices of default which Trustor shall send or receive under the Leases to Beneficiary, and (c) enforce, short of termination of the Leases, the performance or observance of the provisions thereof by the tenants thereunder. In addition to the rights which Beneficiary may have herein, in the event of any default under this Deed of Trust, Beneficiary, at its option, may require Trustor to pay monthly in advance to Beneficiary, Trustee or any receiver appointed to collect the Rents, the fair and reasonable rental value for the use and occupation of such part of the Property as may be in possession of Trustor. Upon default in any such payment, Trustor will vacate and surrender possession of the Property to Beneficiary, Trustee or to such receiver and, in default thereof, Trustor may be evicted by summary proceedings or otherwise. Nothing contained in this paragraph shall be construed as imposing on Beneficiary or Trustee any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use obligations of the affected space) does not have a materially adverse effect on lessor under the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this SubsectionLeases.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 5 contracts
Samples: Deed of Trust (Sizzler International Inc), Deed of Trust (Sizzler International Inc), Deed of Trust (Sizzler International Inc)
Leases and Rents. (a) Borrower may enter into Mortgagor does hereby absolutely and unconditionally assign to Mortgagee, all Mortgagor’s right, title and interest in all current and future Leases and Rents, it being intended by Mortgagor that this assignment constitutes a proposed Lease (including present, absolute assignment and not an assignment for additional security only. Such assignment to Mortgagee shall not be construed to bind Mortgagee to the renewal performance of any of the covenants, conditions or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided provisions contained in any such proposed Lease or Renewal Lease (i) provides for rental rates otherwise impose any obligation upon Mortgagee. Mortgagor agrees to execute and terms comparable deliver to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date Mortgagee such Lease is executed by Borrower (unlessadditional instruments, in form and substance reasonably satisfactory to Mortgagee, as may hereafter be reasonably requested by Mortgagee to further evidence and confirm such assignment. Notwithstanding the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions provisions of this Subsection.
(b) Borrower (i) Section 7, so long as no Event of Default shall observe have occurred and perform all be continuing under the obligations imposed upon Loan Documents, Mortgagor shall have the lessor sole but revocable right and license to act as landlord under the Leases and shall not do or permit to be done anything to impair enforce the value of any covenants of the Leases as security for Leases. Upon the Debt; (ii) upon request, shall promptly send copies to Lender occurrence and during the continuance of all notices an Event of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their termsDefault, without the prior written consent need for notice or demand, the license granted to Mortgagor herein shall automatically be revoked. Mortgagee is hereby granted and assigned by Mortgagor the right, at its option, upon revocation of Lender.
(c) Borrower maythe license granted herein, without to enter upon the consent Mortgaged Property in person, by agent or by court-appointed receiver to collect the Rents. Any Rents collected after the revocation of Lenderthe license shall be applied by Mortgagee as determined by Mortgagee in its discretion. Mortgagor expressly understands that any and all proposed leases are included in the definition of “Lease” or “Leases” as such terms may be used throughout this Mortgage, amend, modify or waive the Note and the other Loan Documents. In the event of any conflict between the provisions of any Lease or terminate, reduce rents under, accept a surrender this Section 7 and the terms and conditions of space under, or shorten the term of, any Lease (including any guaranty, letter that certain Assignment of credit or other credit support with respect thereto) provided that such action (taking into account, in the case Leases and Rents from Mortgagor to Mortgagee of a termination, reduction in rent, surrender of space or shortening of termeven date herewith, the planned alternative use terms and conditions of the affected space) does not have a materially adverse effect on the value Assignment of the Property taken as a whole, Leases and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods Rents shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectioncontrol.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 4 contracts
Samples: Open End Mortgage, Assignment of Leases and Rents and Security Agreement, Open End Mortgage, Assignment of Leases and Rents and Security Agreement (Griffin Industrial Realty, Inc.), Open End Mortgage, Assignment of Leases and Rents and Security Agreement (Griffin Industrial Realty, Inc.)
Leases and Rents. (a) Borrower Except as otherwise consented to by Lender in writing, all Leases shall be written on the standard form of lease which shall have been approved by Lender. No material changes may enter into a proposed Lease (including be made to the renewal or extension Lender approved standard form of an existing Lease (a "Renewal Lease")) lease without the prior written consent of Lender. Except as otherwise consented to by Lender in writing, provided such proposed Lease or Renewal Lease all Leases and all renewals of Leases executed after the date hereof shall (i) provides provide for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease)similar properties, (ii) is an arms-length transaction be on commercially reasonable terms with a bona fideunaffiliated, independent third party tenantparties (unless otherwise consented to by Lender), (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) provide that such Lease is subject and subordinate to the Security Instrument and that the lessee thereunder agrees to will attorn to Lender, Lender and any purchaser at a foreclosure sale and (viv) is written on the standard form of lease approved by Lendernot contain any terms which would have a Material Adverse Effect. All proposed Major Leases which do not satisfy and all renewals, amendments and modifications thereof executed after the requirements set forth in this Subsection 3.8(a) date hereof shall be subject to the Lender’s prior approval, which approval of Lender and its counselshall not be unreasonably withheld, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectionconditioned, or delayed.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debtin a commercially reasonable manner; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performedperformed in a commercially reasonable manner, provided, however, Borrower shall not terminate or accept a surrender of a Major Lease without Lender’s prior approval; (iviii) shall not collect any of the Rents more than one (1) month in advance (except other than security deposits deposits); (iv) shall not be deemed execute any assignment of lessor’s interest in the Leases or the Rents collected in advance(except as contemplated by the Loan Documents); (v) shall not execute not, without Lender’s prior written consent, alter, modify or change any other assignment Lease so as to change the amount of or payment date for rent, change the expiration date, grant any option for additional space or term, materially reduce the obligations of the lessee or increase the obligations of lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting hold all security deposits under any all Leases not in accordance with their termsLegal Requirements. Upon request, without the prior written consent Borrower shall furnish Lender with executed copies of Lenderall Leases.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall notnot willfully withhold from Lender any information regarding renewal, without the prior written consent extension, amendment, modification, waiver of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminatetermination, reduce rents underrental reduction of, accept a surrender of space underof, or shorten shortening of the term of, any Lease during the term of the Loan. Borrower further agrees to provide Lender with written notice of a Major Tenant “going dark” under such Tenant’s Major Lease within five (5) Business Days after such Major Tenant “goes dark” and Borrower’s failure to provide such notice shall constitute an Event of Default.
(d) Borrower shall notify Lender in writing, within two (2) Business Days following receipt thereof, of Borrower’s receipt of any Termination Fee paid by any Tenant under any Lease. The term "Major Lease" shall mean , and Borrower further covenants and agrees that, if at any Lease between Borrower as landlord and a third party as tenant demising time during any calendar year, such Termination Fees realized in such calendar year are, in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) aggregate, in excess of the total rentable square feet at Termination Fee Threshold, Borrower shall hold any such Termination Fees in trust for the benefit of Lender and that any use of such Termination Fees shall be subject in all respects to Lender’s prior written consent in Lender’s sole discretion (which consent may include, without limitation, a requirement by Lender that such Termination Fees be placed in reserve with Lender to be disbursed by Lender for tenant improvement and leasing commission costs with respect to the Property and/or for payment of the Debt or otherwise in connection with the Loan evidenced by the Note and/or the Property, as so determined by Lender).
(e) To the extent that the Deemed Approval Requirements are fully satisfied in connection with any Borrower request for Lender consent under this Section and Lender thereafter fails to respond, Lender’s approval shall be deemed given with respect to the matter for which approval was requested.
Appears in 4 contracts
Samples: Loan Agreement (Independence Realty Trust, Inc), Loan Agreement (Independence Realty Trust, Inc), Loan Agreement (Independence Realty Trust, Inc)
Leases and Rents. (ai) Borrower absolutely and unconditionally assigns to Lender, Borrower’s right, title and interest in all current and future Leases and Rents as collateral for the Loan, it being intended by Borrower that this assignment constitutes a present, absolute assignment and not an assignment for additional security only. Such assignment to Lender shall not be construed to bind Lender to the performance of any of the covenants, conditions or provisions contained in any such Lease or otherwise impose any obligation upon Lender. Borrower shall execute and deliver to Lender such additional instruments, in form and substance reasonably satisfactory to Lender, as may hereafter be reasonably requested in writing by Lender to further evidence and confirm such assignment. Nevertheless, subject to the terms of this Section 5.1(z), Lender grants to Borrower a license to lease, maintain, operate and manage the Mortgaged Property and to collect, use and apply the Rents in accordance with the terms hereof and otherwise act as the landlord under the Leases. Any portion of the Rents held by Borrower shall be held in trust for the benefit of Lender for use in the payment of the Indebtedness. Upon the occurrence of an Event of Default and during the continuance thereof, the license granted to Borrower herein shall automatically be revoked, and Lender shall immediately be entitled to possession of all Rents, whether or not Lender enters upon or takes control of the Mortgaged Property. Lender is hereby granted and assigned by Borrower the right, at its option, upon revocation of the license granted herein, to enter upon the Mortgaged Property in person, by agent or by court-appointed receiver to collect the Rents. Any Rents collected after the revocation of the license shall be applied toward payment of the Indebtedness as set forth in Section 2.8 hereof.
(ii) All Leases entered into by Borrower shall provide for rental rates comparable to (or more favorable to Borrower than) then-existing local market rates and terms and conditions commercially reasonable and consistent with (or more favorable to Borrower than) then-prevailing local market terms and conditions for similar type properties. With respect to any Lease for more than 15% of the rentable square footage of the Mortgaged Property, Borrower shall not enter into a proposed such Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease . Borrower shall furnish Lender with (i1) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, detailed term sheets in advance in the case of a Renewal Leaseany Leases, the rent payable during such renewalmodifications, amendments or a formula or other method to compute such rent, renewals for which Lender’s consent is provided for required and (2) in the original Lease)case of any other Leases, (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value executed copies of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is such Leases upon written on the standard form of lease approved by Lenderrequest. All proposed renewals or amendments or modifications of Leases which that do not satisfy the requirements set forth in of the first sentence of this Subsection 3.8(aSection 5.1(z)(ii) shall be subject to the prior approval of Lender. All Leases shall be written on the standard lease form previously approved by Lender which form shall not be materially changed without Lender’s prior written consent which consent shall not be unreasonably withheld. All Leases executed after the date hereof shall provide that they are subordinate to the Mortgage, and its counsel, at Borrower's expense. Borrower shall promptly deliver that the lessee agrees to attorn to Lender copies upon Lender’s non-disturbance of all Leases which are entered into pursuant to this Subsection together with such tenant so long as such tenant is not in default under its Lease. Borrower's certification that it has satisfied all of the conditions of this Subsection.,
(b) Borrower (iA) shall observe and perform all of the material obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to materially impair the value of any of the Leases as security for the Debt; Indebtedness;
(iiB) upon request, shall promptly send copies to Lender of all written notices of default which Borrower shall send or receive thereunder; ;
(iiiC) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performedperformed and shall effect a termination or diminution of the obligations of tenants under leases, only in a manner that a prudent owner of a similar property to the Mortgaged Property would enforce such terms covenants and conditions or effect such termination or diminution in the ordinary course of business;
(ivD) shall not collect any of the Rents more than one (1) month in advance advance;
(except security deposits shall not be deemed Rents collected in advance); (vE) shall not execute any other assignment of the lessor's ’s interest in any of the Leases or the Rents; and and
(viF) shall not convey or transfer or suffer or permit a conveyance or transfer of the Mortgaged Property or of any interest therein so as to effect a merger of the estates and rights of, or a termination or diminution of the obligations of, lessees thereunder. Borrower shall submit any Lease, modification, amendment or renewal for which Lender’s consent is required (together with all applicable information and documents, if any, relating thereto as Lender may reasonably require in connection with its determination) to any assignment of Lender in writing sent by recognized overnight delivery service or subletting under any Leases not by registered or certified mail (and simultaneously shall contact the Lender by telephone and by electronic mail) in accordance with their termsthe terms of this Agreement (the “First Notice”), without requesting Lender’s approval of such Lease, modification, amendment or renewal. Lender shall use reasonable efforts to deliver to Borrower its written approval or disapproval of the prior proposed Lease, modification, amendment or renewal within ten (10) Business Days after Lender shall have received the First Notice. Unless Lender shall have approved the Lease, modification, amendment or renewal contained in the First Notice, Lender’s approval shall be deemed to be withheld. If Borrower does not receive Lender’s response by the end of such ten (10) Business Days period, Borrower may resubmit its written consent of Lenderrequest to Lender (the “Second Notice”). The Second Notice shall make reference to the First Notice and shall bear the following legend in capital letters: “LENDER’S FAILURE TO RESPOND TO THIS REQUEST FOR APPROVAL WITHIN FIVE (5) BUSINESS DAYS FOLLOWING RECEIPT SHALL BE DEEMED TO CONSTITUTE LENDER’S CONSENT TO THE [LEASE] [MODIFICATION] [AMENDMENT] [RENEWAL] DESCRIBED HEREIN.” If Lender does not approve or disapprove the proposed Lease, modification, amendment or renewal within five (5) Business Days after Lender shall have received Borrower’s Second Notice, Lender shall be deemed to have approved the proposed Lease, modification, amendment or renewal.
(ciii) Borrower mayshall within five Business Days of receipt deposit cash Security Deposits of lessees which are turned over to or for the benefit of Borrower or otherwise collected by or on behalf of Borrower, without into the consent Security Deposit Account and shall not commingle such funds with any other funds of Borrower, and shall deliver all instruments evidencing non-cash Security Deposits and all related documents to Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit . Any bond or other credit support instrument which Borrower is permitted to hold in lieu of cash Security Deposits under any applicable Legal Requirements shall be maintained in full force and effect unless replaced by cash deposits as hereinabove described, shall, if permitted pursuant to Legal Requirements, name Lender as payee or mortgagee thereunder (or at Lender’s option, be fully assignable to Lender) and shall, in all respects, comply with any applicable Legal Requirements and otherwise be reasonably satisfactory to Lender; provided, however, that so long as no Event of Default exists and Borrower delivers such bond or other instrument to Lender to hold under this Agreement, Lender may elect not to require Borrower to cause the Lender to be named as payee thereunder, in which event if an Event of Default occurs, Borrower shall take all actions as are necessary in order to cause Lender or to be named as payee thereunder and take such other actions as Lender may reasonably require with respect thereto) provided that such action (taking into account, and Borrower hereby constitutes and appoints Lender, during the continuance of an Event of Default, its true and lawful attorney-in-fact with full power of substitution to take in the case name of Borrower any and all actions necessary to take such actions, including causing Lender to be named as payee thereunder. Such power of attorney shall be deemed to be a terminationpower coupled with an interest and cannot be revoked. Borrower shall, reduction in rentupon request, surrender provide Lender with evidence reasonably satisfactory to Lender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in Borrower’s compliance with the requirements foregoing. Upon the occurrence and during the continuance of this any Event of Default, to the extent permitted by applicable Legal Requirements, Borrower shall, upon Lender’s request, turn over to Lender any Security Instrument Deposits (and any subordinate agreement binding upon interest theretofore earned thereon) not yet deposited into the Security Deposit Account or delivered to Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value all or any portion of the Property taken as a whole. Any amendmentMortgaged Property, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall to be held by Lender subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all terms of the conditions of this SubsectionLeases.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 3 contracts
Samples: Loan Agreement (Digital Realty Trust, Inc.), Loan Agreement (Digital Realty Trust, Inc.), Loan Agreement (Digital Realty Trust, Inc.)
Leases and Rents. (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of LenderSubject to Section 1.02 hereof and, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Leaseif applicable, the rent payable during such renewalLoan Agreement, all existing and future leases, subleases, subsubleases, lettings, licenses, concessions or other agreements made a part thereof (whether written or oral and whether now or hereafter in effect) affecting the use, enjoyment, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies occupancy of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder Land and/or the Improvements heretofore or hereafter entered into and all extensions, amendments, modifications or other agreements relating to be observed or performedsuch leases, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their termssubleases, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space undersubsubleases, or shorten the term ofother agreements entered into in connection with such leases, any Lease (including any guarantysubleases, subsubleases, or other agreements and every guarantee, letter of credit or any other credit support of the performance and observance of the covenants, conditions and agreements to be performed and observed by the other party thereto, and the right, title and interest of Mortgagor, its successors and assigns, therein, whether before or after the filing by or against Mortgagor of any petition for relief under the Bankruptcy Code (the “Leases”) and all right, title and interest of Mortgagor, its successors and assigns therein and thereunder, including, without limitation, any guaranties of the lessees’ obligations thereunder (“Lease Guaranties”), cash or securities deposited thereunder to secure the performance by the lessees of their obligations thereunder and all rents, additional rents, rent equivalents, payments in connection with respect thereto) provided that such action (taking into account, in the case of a any termination, reduction in rent, cancellation or surrender of space any Lease, revenues, issues and profits (including, without limitation, all oil and gas or shortening other mineral royalties and bonuses) from the Land and/or the Improvements whether paid or accruing before or after the filing by or against Mortgagor of term, any petition for relief under the planned alternative use Bankruptcy Code and all proceeds from the sale or other disposition of the affected spaceLeases (the “Rents”) does not have a materially adverse effect on and the value right to receive and apply the Rents to the payment of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.Secured Obligations;
Appears in 3 contracts
Samples: Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Blyth Inc), Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Blyth Inc), Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Blyth Inc)
Leases and Rents. (a) Borrower Subject to the terms of this paragraph, the Mortgagee waives the right to enter the Mortgaged Property for the purpose of collecting the Rents, and grants the Mortgagor the right to collect the Rents. The Mortgagor shall hold the Rents, or an amount sufficient to discharge all current sums due on the Debt, in trust for use in payment of the Debt. The right of the Mortgagor to collect the Rents may enter into be revoked by the Mortgagee upon an Event of Default by giving notice of such revocation to the Mortgagor. Following such notice the Mortgagee may retain and apply the Rents toward payment of the Debt in such order, priority and proportions as the Mortgagee, in its discretion, shall deem proper, or to the operation, maintenance and repair of the Mortgaged Property, and irrespective of whether the Mortgagee shall have commenced a proposed Lease (including foreclosure of this Mortgage or shall have applied or arranged for the renewal or extension appointment of an existing Lease (a "Renewal Lease")) receiver. The Mortgagor shall not, without the prior written consent of Lenderthe Mortgagee, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewalmake, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit suffer to be done anything to impair the value made, any Leases or modify or cancel any Leases or accept prepayments of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any installments of the Rents for a period of more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute or further assign the whole or any other assignment part of the lessor's interest in any Rents. The Mortgagor shall
(a) fulfill or perform each and every provision of the Leases on the part of the Mortgagor to be fulfilled or performed, (b) promptly send copies of all notices of default which the Rents; Mortgagor shall send or receive under the Leases to the Mortgagee, and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower mayenforce, without short of termination of the consent Leases, the performance or observance of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten thereof by the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectiontenants thereunder.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 3 contracts
Samples: Open Ended Mortgage, Security Agreement and Assignment of Leases and Rents (Igi Inc), Open Ended Mortgage, Security Agreement and Assignment of Leases and Rents (Igi Inc), Open Ended Mortgage, Security Agreement and Assignment of Leases and Rents (Igi Inc)
Leases and Rents. (a) All Leases and all renewals of Leases executed after the date hereof shall (i) provide for rental rates comparable to existing local market rates for similar properties, if available, (ii) be on commercially reasonable terms with unaffiliated, third parties (unless otherwise consented to by Lender), (iii) provide that such Lease is subordinate to the Security Instrument and that the lessee will attorn to Lender and any purchaser at a foreclosure sale, (iv) not contain any terms which would have a Material Adverse Effect and (v) shall be subject to Lender’s prior written approval as provided herein. Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) shall not, without the prior written consent of Lender, provided such proposed Lease grant any approval under (or Renewal Lease permit any approval to be deemed granted under), permit any sublease of, enter into, enter into any agreement with respect to (including, without limitation, any non-disturbance agreement), renew, extend, amend, modify, permit any assignment of, waive any provisions of (other than a waiver of immaterial provisions that do not have a Material Adverse Effect), release any party to, terminate, exercise any recapture or enforcement rights with respect to (including, without limitation, any exercise of rights after a Tenant default), reduce rents under, accept a surrender of space under, or shorten the term of, in each case, any Lease. Notwithstanding the foregoing or anything contained herein to the contrary, Borrower may enter into one or more subleases at any Individual Property, without Lender’s consent, provided, that (i) provides for rental rates and the applicable Tenant remains fully liable under the terms comparable to existing local market rates and terms (taking into account the type and quality of the tenantapplicable Lease, (ii) the aggregate subleases at an Individual Property do not exceed forty-nine percent (49%) of the total rentable area of the applicable Individual Property, and (iii) there is no downgrade, withdrawal or qualification of the long term unsecured debt rating of the applicable Tenant below its long term unsecured debt rating as of the date such Lease is executed by Borrower (unlesshereof. Further, notwithstanding the foregoing or anything contained herein to the contrary, the prior written consent of Lender shall not be required in the case connection with an amendment or modification of a Renewal any Lease, the rent payable during if such renewal, amendment or a formula or other method to compute such rent, modification is provided for in the original Lease), (ii) is an arms-length transaction immaterial and Borrower furnishes Lender with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value copy of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectionsame after execution thereof.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debtin all material respects in a commercially reasonable manner; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performedperformed in a commercially reasonable manner, provided, however, Borrower shall not terminate or accept a surrender of a Lease without Lender’s prior approval; (iviii) shall not collect any of the Rents more than one (1) month in advance (except other than security deposits shall not be deemed Rents collected in advancedeposits); (viv) shall not execute any other assignment of the lessor's ’s interest in any of the Leases or the RentsRents (except as contemplated by the Loan Documents); and (viv) shall not consent to any assignment of or subletting hold all security deposits under any all Leases not in accordance with their termsApplicable Law. Upon request, without the prior written consent Borrower shall furnish Lender with executed copies of Lenderall Leases.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall notnot willfully withhold from Lender any information regarding renewal, without the prior written consent extension, amendment, modification, waiver of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminatetermination, reduce rents underrental reduction of, accept a surrender of space underof, or shorten shortening of the term of, any Major LeaseLease during the term of the Loan. The term "Major Lease" Borrower further agrees to provide Lender with written notice of a Tenant “going dark” under such Tenant’s Lease within five (5) Business Days after such Tenant “goes dark” and Borrower’s failure to provide such notice shall mean constitute an Event of Default.
(d) Borrower shall notify Lender in writing, within two (2) Business Days following receipt thereof, of Borrower’s receipt of any termination fee or payment (“Lease Payment”) paid by any Tenant under any Lease between in consideration of any termination, modification or amendment or settlement of any Lease or any release or discharge of any Tenant under any Lease from any obligation thereunder (a “Lease Payment Event”). Borrower as landlord further covenants and a third party as tenant demising in the aggregate more than the lesser of agrees that (i) 15,000 rentable square feet or Borrower shall hold any such Lease Payment in trust for the benefit of Lender and (ii) fifteen percent (15%A) in the event such Lease Payment is less than $100,000 and such Lease Payment Event does not have a Material Adverse Effect, such Lease Payment shall be payable to Borrower or (B) in the event such Lease Payment equals or exceeds $100,000 or such Lease Payment Event has a Material Adverse Effect, such Lease Payment shall be placed by Borrower in reserve with Lender, to be disbursed by Lender for tenant improvement and leasing commission costs with respect to the Property and/or for payment of the total rentable square feet at Debt or otherwise in connection with the Loan and/or the Property, as so determined by Lender, in its sole discretion.
(e) If Borrower shall default in the performance or observance of any term, covenant or condition of any Lease and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Lease on the part of Borrower to be performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under such Lease shall be kept unimpaired and free from default. If any party to any Lease shall deliver to Lender a copy of any notice of default under such Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon.
(f) Notwithstanding anything to the contrary contained herein, to the extent Lender’s prior approval is required for any leasing matters set forth in this Section 4.14, Lender shall have ten (10) Business Days from receipt of written request and all required information and documentation relating thereto in which to approve or disapprove such matter, provided that such request to Lender is marked in bold lettering with the following language: “LENDER’S RESPONSE IS REQUIRED WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER” and the envelope containing the request must be marked “PRIORITY”. In the event that Lender fails to respond to the leasing matter in question within such time, Lender’s approval shall be deemed given for all purposes. Borrower shall provide Lender with such information and documentation as may be reasonably required by Lender, including, without limitation, lease comparables and other market information as reasonably required by Lender.
(g) In the event of any conflict or inconsistency between the terms and provisions of this Section 4.14 and the balance of the provisions hereof and/or any of the other Loan Documents, the terms and conditions set forth in this Section 4.14 shall control and be binding.
Appears in 3 contracts
Samples: Loan Agreement (American Realty Capital Trust III, Inc.), Loan Agreement (American Realty Capital Trust III, Inc.), Loan Agreement (American Realty Capital Trust III, Inc.)
Leases and Rents. (a) Borrower may The Mortgagor hereby absolutely and unconditionally assigns to the Lender, the Leases, the Rents, and, upon an Event of Default hereunder, the right to enter into the Mortgaged Property for the purpose of enforcing the Lender’ interest in the Leases and Rents (such assignment constituting a proposed present, absolute assignment of the Leases and the Rents and not merely the passing of a security interest therein). Nevertheless, subject to the terms of this Section 15, the Lender grant to the Mortgagor a revocable license to collect the Rents. The Mortgagor shall hold the Rents, as well as the right and license to receive the same, as a trust fund to be applied, and the Mortgagor hereby covenants to so apply same: first, to the payment of any sums the non-payment of which might result in the imposition of criminal penalties or criminal liability upon the Mortgagor; second, to the payment of taxes and other charges in connection with the Premises before penalty or interest are due thereon; third, to the cost of such insurance and of such maintenance and repairs as is required by the terms of this Mortgage; fourth, to satisfaction of all obligations under the Leases; and, fifth, to the payment of interest and principal becoming due pursuant to the Note and this Mortgage before using any part of the same for any other purposes.
(b) Upon or at any time after an Event of Default, the license granted herein to the Mortgagor shall be automatically revoked, and the Lender may (i) enter upon the Mortgaged Property, and (with or without such entry) collect, retain and apply the Rents toward payment of the Debt in such priority and proportions as the Lender in their discretion shall deem proper; and (iii) exercise any of the rights and remedies otherwise granted to the Lender herein. Any Rents received by the Mortgagor after an Event of Default shall be held in trust and shall not be commingled with the funds and property of the Mortgagor but shall be promptly paid over to the Lender.
(c) The Mortgagor shall furnish the Lender with executed copies or certified true copies of all Leases, together with all guaranties and other documents executed in connection with such Lease, upon execution of any Lease, and at any other time if requested by the Lender. If any new Lease is the result of a change in tenancy, the Mortgagor shall deliver to the Lender a copy of such new Lease within one hundred eighty (including 180) days prior to expiration of the renewal or extension current Lease. Furthermore, Mortgagor shall promptly obtain and deliver to the Lender, upon the Lender’s request, a certificate of an existing estoppel of any Tenant under any Lease.
(d) The Mortgagor shall furnish the Lender with executed copies of all extensions and/or renewals of each Lease within one hundred eighty (a "Renewal 180) days prior to the expiration of such Lease").
(e) The Mortgagor shall not, without first obtaining the prior written consent of Lender, provided the Lender in each such proposed Lease or Renewal Lease instance:
(i) provides for rental rates and terms comparable mortgage, convey or xxxxx x xxxx subordinate to existing local market rates and terms (taking into account this Mortgage on the type and quality Mortgaged Property, or on any or all of the tenantImprovements, Equipment or appurtenances of which it is comprised;
(ii) as collect any Rents for a period of more than one (1) month in advance other than the security deposited in connection with a Lease;
(iii) further pledge, transfer, mortgage or otherwise encumber or assign the Leases and Rents;
(iv) lease voluntarily the whole or any part of the date Mortgaged Property to the United States of America, or any of its agencies, or to any person or entity having diplomatic immunity;
(v) waive, excuse, condone, discount, set-off, compromise, cancel, terminate or in any manner release or discharge any tenant under any Lease (a “Tenant”) of and from any obligations, covenants, conditions and agreements by such Lease is executed by Borrower (unlessTenant to be kept, observed and performed, including the obligation to pay the Rents thereunder, in the case manner and at the place and time specified therein;
(vi) cancel, terminate or consent to any surrender of any Lease, except as may be provided in the Lease, or commence an action of ejectment or any summary proceedings for dispossession of a Renewal Tenant or execute any right to recapture, as provided in any Lease;
(vii) execute or permit to exist any Lease except for occupancy by the Tenant thereunder and pursuant to a written Lease in form and substance satisfactory to the Lender and with a Tenant satisfactory to the Lender;
(viii) enter into, modify, amend, extend or renew any Lease, or permit the rent payable during Tenant under any Lease to assign the tenancy thereunder;
(ix) relocate any Tenant nor consent to any modification of the express purposes for which such renewalspace has been leased, nor consent to any subletting of all or any portion of the Mortgaged Property or to an assignment of any Lease or a formula further subletting of any sublease, except as may be provided in any Lease;
(x) consent or agree to accept a subordination of any Lease to any mortgage or other method encumbrance (other than this Mortgage) now or hereafter affecting the Mortgaged Property; or
(xi) create or permit to compute exist any easement or restrictive covenant affecting the Mortgaged Property. Unless the Lender consent thereto in advance and in writing, any act prohibited by this subsection shall be void. Consent to one such rent, is provided for in the original Lease), (ii) is an arms-length transaction with shall not be deemed to be a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value waiver of the Property taken as a whole, right to require such consent to future or successive transactions.
(ivf) is subject and All Leases shall provide that they are subordinate to this Mortgage and that the Security Instrument and the lessee thereunder Tenant agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy shall also provide that the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counselTenant thereunder must, at Borrower's its own cost and expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together , comply with Borrower's certification that it has satisfied all of the conditions of this SubsectionISRA (as such term is hereinafter defined).
(bg) Borrower The Mortgagor shall: (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to the Lender of all notices of default which Borrower the Mortgagor shall send or and/or receive thereunderunder the Leases and all notices of the commencement of summary proceedings which the Mortgagor brings against any Tenant under any Lease; (iii) shall notify and direct in writing each present or future Tenant that any deposit delivered to the Mortgagor has been retained by the Mortgagor or assigned and delivered to the Lender, as the case may be; (iv) enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performed, performed (iv) shall not collect any of the Rents more other than one (1) month in advance (except security deposits shall immaterial obligations that it would not be deemed Rents collected in advanceprudent to enforce); (v) shall not execute appear in and defend any other assignment action or proceeding arising under, occurring out of the lessor's interest or in any of manner connected with the Leases or the Rentsobligations, duties or liability of Mortgagor and any Tenant thereunder and, upon request of Xxxxxx, to do so in the name of and on behalf of the Lender at Xxxxxxxxx’s expense; (vi) maintain all security deposits under the Leases to be held in an account at the Lender; and (vivii) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without execute and deliver at the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use request of the affected space) does not have a materially adverse effect on the value of the Property taken as a wholeLender all such further assurances, confirmations and provided that such Lease, as amended, modified or waived, is otherwise assignments in compliance connection with the requirements of this Security Instrument and any subordinate agreement binding upon Mortgaged Property as the Lender with respect shall from time to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectiontime require.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 3 contracts
Samples: Mortgage and Security Agreement (Avalon GloboCare Corp.), Mortgage and Security Agreement (Avalon GloboCare Corp.), Mortgage and Security Agreement (Avalon GloboCare Corp.)
Leases and Rents. Subject to the terms of this paragraph, Mortgagee waives the right to enter the Mortgaged Property for the purpose of collecting the Rents, and grants Mortgagor the right to collect the Rents. Mortgagor shall collect and hold the Rents, or an amount sufficient to discharge all current sums due on the Debt, in trust for use in payment of the Debt. The right of Mortgagor to collect the Rents may be revoked by Mortgagee upon the occurrence of any Event of Default by giving notice of such revocation to Mortgagor. Following such notice and as long as such Event of Default is continuing (a) Borrower may enter into a proposed Lease (including it being understood that the renewal decision whether or extension not to accept the cure of an existing Lease (a "Renewal Lease"Event of Default shall be in the sole and absolute discretion of Mortgagee)) without , Mortgagee may retain and apply the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality Rents toward payment of the tenant) Debt in such order, priority and proportions as Mortgagee, in its discretion, shall deem proper, or to the operation, maintenance and repair of the date such Lease is executed by Borrower (unlessMortgaged Property, in and irrespective of whether Mortgagee shall have commenced a foreclosure of this Mortgage or shall have applied or arranged for the case appointment of a Renewal Leasereceiver. In addition, Mortgagee shall have the rent payable absolute and unconditional right following the occurrence and during such renewal, or a formula or other method the continuance of an Event of Default to compute such rent, is provided for in notify the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor tenants under the Leases that all Rents should be paid directly to Mortgagee. In addition to the rights which Mortgagee may have herein, if an Event of Default shall occur and shall not do be continuing Mortgagee, at its option, may require Mortgagor to pay monthly in advance to Mortgagee, or permit any receiver appointed to collect the Rents, the fair and reasonable rental value for the use and occupation of such part of the Mortgaged Property as may be done anything in possession of Mortgagor. Upon default in any such payment, Mortgagor will vacate and surrender possession of the Mortgaged Property to impair the value of Mortgagee, or to such receiver and, in default thereof, Mortgagor may be evicted by summary proceedings or otherwise. Nothing contained in this paragraph shall be construed as imposing on Mortgagee any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all obligations of the material terms, covenants and conditions contained in landlord under the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of LenderLeases.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 3 contracts
Samples: Open End Mortgage and Security Agreement (Brandywine Realty Trust), Mortgage (Brandywine Realty Trust), Revolving Credit Agreement (Brandywine Realty Trust)
Leases and Rents. (a) Borrower may enter into To the extent the terms of this Section 7 are inconsistent with the terms of the Loan Agreement or the Assignment of Leases and Rents, the terms of the Loan Agreement and the Assignment of Leases and Rents shall control. Mortgagor does hereby absolutely and unconditionally assign to Mortgagee, all Mortgagor's right, title and interest in all current and future Leases and Rents, it being intended by Mortgagor that this assignment constitutes a proposed Lease (including present, absolute assignment and not an assignment for additional security only. Such assignment to Mortgagee shall not be construed to bind Mortgagee to the renewal performance of any of the covenants, conditions or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided provisions contained in any such proposed Lease or Renewal Lease (i) provides for rental rates otherwise impose any obligation upon Mortgagee. Mortgagor agrees to execute and terms comparable deliver to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date Mortgagee such Lease is executed by Borrower (unlessadditional instruments, in form and substance reasonably satisfactory to Mortgagee, as may hereafter be reasonably requested by Mortgagee to further evidence and confirm such assignment. Notwithstanding the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions provisions of this Subsection.
(b) Borrower (i) Section 7, so long as no Event of Default shall observe have occurred and perform all be continuing under the obligations imposed upon Loan Documents, Mortgagor shall have the lessor sole but revocable right and license to act as landlord under the Leases and shall not do or permit to be done anything to impair enforce the value of any covenants of the Leases as security for the Debt; (ii) upon requestLeases, shall promptly send copies provided, however, Mortgagor acknowledges it has no right to Lender of all notices of default which Borrower shall send collect or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any of the use Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their termsthe terms and conditions of Article VII of the Loan Agreement and the Cash Management Agreement. Upon the occurrence and during the continuance of an Event of Default, without the prior written consent need for notice or demand, the license granted to Mortgagor herein shall automatically be revoked. Mortgagee is hereby granted and assigned by Mortgagor the right, at its option, upon revocation of Lender.
(c) Borrower maythe license granted herein, without to enter upon the consent Mortgaged Property in person, by agent or by court-appointed receiver to collect the Rents. Subject to the terms of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term ofLoan Agreement, any Lease (including Rents collected after the revocation of the license shall be applied by Mortgagee in accordance with the Loan Agreement. Mortgagor expressly understands that any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, and all proposed leases are included in the case definition of a termination, reduction in rent, surrender of space "LEASE" or shortening of term"LEASES" as such terms may be used throughout this Mortgage, the planned alternative use of Note and the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectionother Loan Documents.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 2 contracts
Samples: Substitute Mortgage, Assignment of Leases and Rents and Security Agreement (Lodgian Inc), Mortgage, Assignment of Leases and Rents and Security Agreement (Lodgian Inc)
Leases and Rents. (a) Trustee and Lender are hereby granted and assigned by Xxxxxxxx the right to enter the Property for the purpose of enforcing its interest in the Leases and the Rents, this Security Instrument constituting a present, absolute assignment of the Leases and the Rents. Nevertheless, subject to the terms of this paragraph 7, Lender grants to Borrower a revocable license to operate and manage the Property and to collect the Rents. Borrower shall hold the Rents, or a portion thereof sufficient to discharge all current sums due on the Debt, for use in the payment of such sums. Upon or at any time after an Event of Default, the license granted to Borrower herein may be revoked by Xxxxxx, and Lender or Trustee may enter into a upon the Property, and collect, retain and apply the Rents toward payment of the Debt in such priority and proportions as Lender in its discretion shall deem proper.
(b) All Leases shall be written on the standard form of lease which has been approved by Lender. Upon written request from Xxxxxx, Borrower shall furnish Lender with executed copies of all Leases and all modifications thereto as soon as may be practicable. No material changes may be made to the Lender- approved standard forms except as may be required by applicable law. In addition, all renewals of Leases and all proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides leases shall provide for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an shall be arms-length transaction with transactions. Borrower shall not enter into any lease having a bona fide, independent third party tenant, term of more than three (iii3) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and years. All Leases shall provide that they are subordinate to the this Security Instrument and that the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by LenderXxxxxx. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performed, ; (iviii) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (viv) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; (v) shall not materially alter, modify or change the terms of the Leases, or cancel or terminate the Leases or accept a surrender thereof or convey or transfer or suffer or permit a conveyance or transfer of the Premises or of any interest therein so as to effect a merger of the estates and rights of, or a termination or diminution of the obligations of, lessees thereunder, except that Borrower may terminate any Lease in exercising its rights as landlord thereunder upon a default by the tenant under said Lease; (vi) shall not alter, modify or change the terms of any guaranty of the Leases or cancel or terminate such guaranty; (vii) shall not consent to any assignment of or subletting under any the Leases not in accordance with their terms; and (viii) shall execute and deliver all such further assurances, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support confirmations and assignments in connection with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect shall from time to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectiontime require.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 2 contracts
Samples: Deed of Trust, Security Agreement, Fixture Filing and Assignment of Leases and Rents (Investors First Staged Equity L P), Deed of Trust, Security Agreement, Fixture Filing and Assignment of Leases and Rents (Investors First Staged Equity L P)
Leases and Rents. (a) Borrower may enter into a proposed Lease (including is the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality sole owner of the tenant) as of entire lessor’s interest in the date such Lease is executed Leases, and neither the Leases nor any Rents have been Transferred by Borrower except to Lender pursuant to the Loan Documents; (unless, b) there are no Leases now in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect except those set forth on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver certified rent roll delivered to Lender in connection with the Loan and Borrower has delivered to Lender true, correct and complete copies of all Leases which are entered into pursuant to this Subsection (together with Borrower's certification that it has satisfied all of modifications thereto) for any commercial space in the conditions of this Subsection.
Property; (bc) Borrower except as disclosed to Lender in writing (including but not limited to in any tenant estoppel certificates delivered to Lender in connection with the Loan, (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any none of the Rents have been collected for more than one one
(1) month in advance advance; (except security deposits shall not be deemed Rents collected in advance)ii) the premises demised under the Leases have been completed and the tenants under the Leases have accepted and taken possession of the same on a rent-paying basis; (iii) to Borrower’s knowledge, there exists no offset or defense to the payment of any portion of the Rents; (iv) no Lease contains an option to purchase, right of first refusal to purchase, expansion right, or any other similar provision; (v) shall not execute any other assignment to Borrower’s knowledge, there are no defaults or events of default (and to Borrower’s knowledge, no events or circumstances exist which with or without the lessor's interest in giving of notice, the passage of time or both may constitute a default or event of default) under any of the Leases or the Rentswhich have a Material Adverse Effect; and (vi) shall not consent to any assignment no residential Lease is for a term of less than six (6) months or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
more than twelve (c12) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, months; and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive no Person has any provisions of, terminate, reduce rents under, accept a surrender of space underpossessory interest in, or shorten right to occupy, the term of, any Major Property except under and pursuant to a Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 2 contracts
Samples: Loan Agreement, Loan Agreement (Digital Realty Trust, Inc.)
Leases and Rents. (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides Borrower absolutely and unconditionally assigns to Lender, Borrower’s right, title and interest in all current and future Leases and Rents as collateral for the Loan, it being intended by Borrower that this assignment constitutes a present, absolute assignment and not an assignment for additional security only. Such assignment to Lender shall not be construed to bind Lender to the performance of any of the covenants, conditions or provisions contained in any such Lease or otherwise impose any obligation upon Lender. Borrower shall execute and deliver to Lender such additional instruments, in form and substance reasonably satisfactory to Lender, as may hereafter be reasonably requested in writing by Lender to further evidence and confirm such assignment. Nevertheless, subject to the terms of this Section 5.1(z), Lender grants to Borrower a license to lease, maintain, operate and manage the Mortgaged Property and to collect, use and apply the Rents in accordance with the terms hereof and otherwise act as the landlord under the Leases, which license shall be deemed automatically revoked upon the occurrence and during the continuance of an Event of Default under this Agreement. Any portion of the Rents held by Borrower shall be held in trust for the benefit of Lender for use in the payment of the Indebtedness. Upon the occurrence of an Event of Default and during the continuance thereof, the license granted to Borrower herein shall automatically be revoked, and Lender shall immediately be entitled to possession of all Rents, whether or not Lender enters upon or takes control of the Mortgaged Property. Lender is hereby granted and assigned by Borrower the right, at its option, upon revocation of the license granted herein, to enter upon the Mortgaged Property in person, by agent or by court-appointed receiver to collect the Rents. Any Rents collected after the revocation of the license shall be applied toward payment of the Indebtedness as set forth in Section 2.8 hereof.
(ii) All Leases entered into by Borrower shall provide for rental rates and terms comparable to then-existing local market rates and terms and conditions commercially reasonable and consistent with then-prevailing local market terms and conditions for similar type properties, and in no event shall Borrower, absent Lender’s prior written consent, which consent shall not be unreasonably withheld or delayed, enter into any Leases (taking into account the type a) other than leases of Homesites to owners and quality occupants of the tenantresidential manufactured homes or mobile homes having lease terms not in excess of two years, and (b) with any Affiliates of Borrower, except as of the date such Lease is executed by indicated in Schedule 4 attached hereto. Borrower shall furnish Lender with (unless, 1) detailed term sheets in advance in the case of a Renewal Leaseany Leases, the rent payable during such renewalmodifications, amendments or a formula or other method to compute such rent, renewals for which Lender’s consent is provided for required and (2) in the original Lease)case of any other Leases, (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value executed copies of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is such Leases upon written on the standard form of lease approved by Lenderrequest. All proposed renewals or amendments or modifications of Leases which that do not satisfy the requirements set forth in of the first sentence of this Subsection 3.8(aSection 5.1(z)(ii) shall be subject to the prior approval of Lender, which approval shall not be unreasonably withheld or delayed. All Leases entered into after the Closing Date with new tenants (i.e. not renewals of existing tenants as of the Closing Date) shall be written on the standard lease form for new tenants previously approved by Lender and its counselwhich form as of the Closing Date is set forth on Schedule 10 attached hereto; provided that notwithstanding the foregoing, at Borrower's expense. the Borrower may modify any standard lease form without such approval to the extent necessary to conform such form to any applicable Legal Requirements (and, upon reasonable request of the Lender, the Borrower shall promptly deliver notify the Lender in writing with respect to Lender copies of all Leases any such modification). The Borrower shall not materially change the standard lease form without Lender’s prior written consent, which are entered into pursuant consent shall not be unreasonably withheld or delayed, or except as necessary to this Subsection together comply with applicable Legal Requirements. Borrower's certification that it has satisfied all of the conditions of this Subsection.,
(b) Borrower (iA) shall observe and perform all of the material obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to materially impair the value of any of the Leases as security for the Debt; Indebtedness;
(iiB) upon request, shall promptly send copies to Lender not execute any other assignment of all notices lessor’s interest in any of default which Borrower shall send the Leases or receive thereunder; Rents;
(iiiC) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performedperformed and shall effect a termination or diminution of the obligations of tenants under leases, only in a manner that a prudent owner of a similar property to the Mortgaged Property would enforce such terms covenants and conditions or effect such termination or diminution in the ordinary course of business;
(ivD) except as otherwise set forth in the Monthly Statement submitted to Lender, shall not collect any of the Rents more than one (1) month in advance advance; and
(except security deposits shall not be deemed Rents collected in advance); (vE) shall not execute any other assignment convey or transfer or suffer or permit a conveyance or transfer of the lessor's Mortgaged Property or of any interest in any therein so as to effect a merger of the Leases estates and rights of, or a termination or diminution of the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their termsobligations of, without the prior written consent of Lenderlessees thereunder.
(ciii) Borrower mayshall deposit security deposits of lessees which are turned over to or for the benefit of Borrower or otherwise collected by or on behalf of Borrower, without into the consent Security Deposit Account and shall not commingle such funds with any other funds of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit Borrower. Any bond or other credit support with respect theretoinstrument which Borrower is permitted to hold in lieu of cash security deposits under any applicable Legal Requirements shall be maintained in full force and effect unless replaced by cash deposits as hereinabove described, shall, if permitted pursuant to Legal Requirements, name Lender as payee or mortgagee thereunder (or at Lender’s option, be fully assignable to Lender) provided that such action (taking into accountand shall, in the case all respects, comply with any applicable Legal Requirements and otherwise be reasonably satisfactory to Lender. Borrower shall, upon request, provide Lender with evidence reasonably satisfactory to Lender of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in Borrower’s compliance with the requirements foregoing. Upon the occurrence and during the continuance of this Security Instrument any Event of Default, Borrower shall, upon Lender’s request, if permitted by any applicable Legal Requirements, turn over to Lender the security deposits (and any subordinate agreement binding upon Lender interest theretofore earned thereon) with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value all or any portion of the Property taken as a whole. Any amendmentMortgaged Property, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall to be held by Lender subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all terms of the conditions of this SubsectionLeases.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 2 contracts
Samples: Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc)
Leases and Rents. (a) Borrower may enter into a proposed Lease (including Mortgagor does hereby absolutely and unconditionally assign to Mortgagee its right, title and interest in all current and future Leases and Rents and all proceeds from the renewal sale, cancellation, surrender or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality other disposition of the tenant) as of the date such Lease is executed Leases, it being intended by Borrower (unlessMortgagor that this assignment constitutes a present, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method absolute assignment and not an assignment for additional security only. Such assignment to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does Mortgagee shall not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate be construed to bind Mortgagee to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value performance of any of the Leases covenants, conditions or provisions contained in any such Lease or otherwise to impose any obligation upon Mortgagee. Mortgagor agrees to execute and deliver to Mortgagee such additional instruments in form and substance satisfactory to Mortgagee, as security may hereafter be requested by Mortgagee to further evidence and confirm such assignment. Nevertheless, subject to the terms of this Paragraph 4, Mortgagee grants to Mortgagor a revocable license to operate and manage the Mortgaged Property and to collect the Rents. Mortgagor shall hold the Rents, or a portion thereof sufficient to discharge all current sums due on the Indebtedness, in trust for the Debt; (ii) upon request, shall promptly send copies to Lender benefit of all notices Mortgagee for use in the payment of default which Borrower shall send or receive thereunder; (iii) shall enforce all such sums. The grant of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder foregoing license is subject to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use Paragraph 1 of the affected space) does not have a materially adverse effect on separate Assignment of Leases and Rents of even date herewith granted by the value of Mortgagor as “Assignor” to the Property taken Mortgagee as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender “Assignee” with respect to the Mortgaged Property (“Assignment of Leases and Rents”). Upon the occurrence of an Event of Default, the license granted to Mortgagor herein shall be automatically revoked and Mortgagee shall immediately be entitled to possession of all Rents, whether or not Mortgagee enters upon or takes control of the Mortgaged Property. Mortgagee is hereby granted and assigned by Mortgagor the right, at its option, upon the revocation of the license granted herein to enter upon the Mortgaged Property in person, by agent or by court-appointed receiver to collect the Rents. Any Rents collected after the revocation of the license herein granted may be applied toward payment of the Indebtedness in such Leasepriority and proportion as Mortgagee in its discretion shall deem proper. A termination It is further the intent of a Lease with a tenant who is Mortgagor and Mortgagee that the Rents hereby absolutely assigned are no longer, during the term of this Mortgage, property of Mortgagor or property of any estate of Mortgagor as defined in default beyond applicable notice Section 541 of the Bankruptcy Code and grace periods shall not be considered an action which has a materially adverse effect on the value constitute collateral, cash or otherwise, of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major LeaseMortgagor. The term "Major Lease" “Rents” as used herein shall mean the gross rents without deduction or offsets of any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Propertykind.
Appears in 2 contracts
Samples: Open End Mortgage Deed, Assignment of Leases and Rents, Security Agreement and Fixture Filing (GTJ REIT, Inc.), Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (GTJ REIT, Inc.)
Leases and Rents. (a) Borrower may enter into does hereby absolutely and unconditionally assign to Mortgagee all of Borrower’s right, title and interest in all current and future Leases and Rents, it being intended by Borrower that this assignment constitutes a proposed present, absolute assignment and not an assignment for additional security only. Such assignment shall not be construed to bind Mortgagee to the performance of any of the covenants or provisions contained in any Lease or otherwise impose any obligation upon Mortgagee. Nevertheless, subject to the terms of this paragraph, Mortgagee grants to Borrower a revocable license to operate and manage the Property and to collect, receive, use and enjoy the Rents subject to the requirements of the Loan Agreement (including the renewal or extension deposit of Rents into the Clearing Account). Upon an existing Lease (a "Renewal Lease")) Event of Default, without the prior written consent need for notice or demand, the license granted to Borrower herein shall automatically be revoked, and Lender shall immediately be entitled to possession of Lenderall Rents in the Clearing Account, provided such proposed Lease the Deposit Account (including all Subaccounts thereof) and all Rents collected thereafter (including Rents past due and unpaid), whether or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality not Mortgagee enters upon or takes control of the tenant) as Property, provided, that such revocation shall only be effective while an Event of Default is continuing. Borrower hereby grants and assigns to Lender the right, at its option, upon revocation of the date such Lease is executed by Borrower (unlesslicense granted herein, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of enter upon the Property taken as a wholein person, (iv) is subject and subordinate by agent or by court‑appointed receiver to collect the Security Instrument and the lessee thereunder agrees to attorn to LenderRents, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval rights of Lender and its counsel, at Borrower's expensetenants under Leases. Borrower shall promptly deliver to Lender copies Any Rents collected after the revocation of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all such license may be applied toward payment of the conditions of this SubsectionDebt in such priority and proportions as Mortgagee in its sole discretion shall deem proper.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon requestenter into, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lendermodify, amend, modify cancel, terminate or waive the provisions of renew any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) except as provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use Section 4.1.9 of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this SubsectionLoan Agreement.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 2 contracts
Samples: Building Loan Consolidated, Amended and Restated Mortgage, Assignment of Leases and Rents and Security Agreement (KBS Strategic Opportunity REIT, Inc.), Senior Loan Consolidated, Amended and Restated Mortgage, Assignment of Leases and Rents and Security Agreement (KBS Strategic Opportunity REIT, Inc.)
Leases and Rents. (a) Borrower may enter into a proposed Lease (including All Leases and all renewals of Leases executed after the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease date hereof shall (i) provides provide, in Borrower’s reasonable business judgment, for rental rates and terms comparable to existing local market rates for similar properties (except for renewals pursuant to the terms and conditions of Leases executed prior to the date hereof, the rental rates for which shall be consistent with the terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original applicable Lease), (ii) is an arms-length transaction with a bona fidebe on commercially reasonable terms (unless otherwise consented to by Lender or for renewals pursuant to the terms and conditions of Leases executed prior to the date hereof), independent third party tenant, and (iii) does not have a materially adverse effect on with respect to Leases entered into after the value of the Property taken as a wholeClosing Date, (iv) provide that such Lease is subject and subordinate to the Security Instrument and that the lessee thereunder agrees to will attorn to Lender and any purchaser at a foreclosure sale, provided, that such subordination and attornment may be contingent on Lender, ’s agreement not to disturb the Tenant’s use of such premises so long as no event of default under such Lease has occurred and (v) is written on the standard form of lease approved by Lendercontinuing. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject Notwithstanding anything to the contrary contained herein, Borrower shall not, without the prior written approval of Lender and its counsel(which approval shall not be unreasonably withheld, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into conditioned or delayed), enter into, renew (except for renewals pursuant to this Subsection together with Borrower's certification that it has satisfied all the terms and conditions of Leases), extend (except for extensions pursuant to the terms and conditions of Leases), amend, modify, permit any assignment of under (to the extent Borrower consent is required under the terms of the applicable Lease for the applicable assignment), waive any economic provisions or other material provisions of, release any party to, terminate (except in the case of default by the Tenant thereunder), reduce rents under, accept a surrender of space under (unless required pursuant to the terms and conditions of the applicable Lease), or shorten the term of, in each case, any Major Lease. To the extent that the Deemed Approval Requirements are fully satisfied in connection with any Borrower request for Lender consent under this Subsectionsubparagraph (a) and Lender thereafter fails to approve or disapprove the same, Lender’s approval shall be deemed given with respect to the matter for which approval was requested.
(b) Without limitation of subsection (a) above, Borrower (i) shall observe and perform all the material obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debtin a commercially reasonable manner; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performed, performed in a commercially reasonable manner; (iviii) shall not collect any of the Rents more than one (1) month in advance (except other than security deposits deposits); (iv) shall not be deemed execute any assignment of lessor’s interest in the Leases or the Rents collected in advance(except as contemplated by the Loan Documents); (v) shall not, without Lender’s prior written consent (not execute to be unreasonably withheld, conditioned or delayed), alter, modify or change any other assignment of the lessor's interest in any of the Leases or the RentsMajor Lease; and (vi) shall not consent to any assignment of or subletting hold all security deposits under any all Leases not in accordance with their termsLegal Requirements. Upon request, without the prior written consent Borrower shall furnish Lender with executed copies of Lenderall Leases.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall notnot willfully withhold from Lender any information reasonably required regarding renewal, without the prior written consent extension, amendment, modification, waiver of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminatetermination, reduce rents underrental reduction of, accept a surrender of space underof, or shorten shortening of the term of, any Major Lease during the term of the Loan. Borrower further agrees to provide Lender with written notice of a Tenant “going dark” under such Tenant’s Lease within ten (10) Business Days after Borrower’s knowledge that such Tenant has “gone dark”.
(d) Borrower shall, promptly (but in all cases within five (5) Business Days) after Borrower’s receipt of any early termination fee or payment or other termination fee or payment paid by any Tenant under any Lease, cause such fee or payment to be deposited into an Eligible Account with Lender to be disbursed by Lender for tenant improvement and leasing commission costs with respect to the Property within ten (10) Business Days after Borrower’s request therefor, provided no Event of Default is continuing. The term "Major After the entirety of the space demised under the Lease to which such early termination fee or payment or other termination fee or payment relates has been leased to a replacement Tenant in accordance with the terms and conditions of this Agreement and the Tenant thereunder is open for business and paying full and unabated rent under such Lease" , Lender shall mean deposit any Lease between Borrower as landlord and a third party as tenant demising remaining early termination fee or payment or other termination fee or payment held by Lender pursuant to this subclause (d) in the aggregate more than Cash Management Account for application in accordance with Section 9.3 hereof. During the lesser continuance of (i) 15,000 rentable square feet an Event of Default, any such fee or (ii) fifteen percent (15%) payment may also be held as collateral for the Debt or applied towards payment of the total rentable square feet at the PropertyDebt, as so determined by Lender.
(e) Lender agrees to deliver a subordination and non-disturbance agreement in favor of a Tenant under any Lease, on Lender’s then current form of subordination and non-disturbance agreement; provided that Lender will cooperate reasonably in connection with reasonable changes requested thereto. Borrower shall pay all reasonable out-of-pocket costs and expenses incurred by Lender in connection with such request.
Appears in 2 contracts
Samples: Loan Agreement (American Realty Capital New York City REIT, Inc.), Loan Agreement (American Realty Capital New York City REIT, Inc.)
Leases and Rents. (a) Upon request, Borrower may enter into a shall furnish Lender with executed copies of all Leases then in effect. All renewals of Leases and all proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides leases shall provide for rental rates and terms comparable to existing local market rates and terms shall be arm’s length transactions with bona fide, independent third-party Tenants. Within ten (taking into account 10) days after the type and quality execution of the tenant) as a Lease or any renewals, amendments or modification of the date a Lease, Borrower shall deliver to Lender a copy thereof, together with Borrower’s certification that such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during or such renewal, amendment or modification) was entered into in accordance with the terms of this Agreement.
(b) Any Lease and any renewals, amendments or modification of a Lease (provided such Lease or Lease renewal, amendment or modification is not a Major Lease (or a formula renewal, amendment or other method modification to compute such rent, is provided for in the original a Major Lease)) that meets the following requirements may be entered into by Borrower without Lender’s prior consent: such Lease (i) provides for rental rates comparable to existing local market rates for similar properties and is otherwise on commercially reasonable terms, (ii) unless a subordination, non-disturbance and attornment agreement is an arms-length transaction with a bona fidedelivered pursuant to this Section 4.14, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) provides that such Lease is subject and subordinate to the Security Instrument and that the lessee thereunder agrees to will attorn to LenderLender and any purchaser at a foreclosure sale, (iii) is written substantially in accordance with the standard form of Lease which shall have been approved by Lender (subject to any commercially-reasonable changes made in the course of negotiations with the applicable Tenant), (iv) is not with an Affiliate of Borrower or any Guarantor, and (v) is written on does not contain any option to purchase, any right of first refusal to purchase, any right to terminate (except in the standard form event of lease approved by Lenderthe destruction or condemnation of substantially all of the Property) or any other terms which would cause a Material Adverse Effect. All proposed other Leases which do (including Major Leases) and all renewals, amendments and modifications thereof (including, without limitation, any subletting or assignment thereunder not satisfy contemplated by the requirements set forth in this Subsection 3.8(aexpress terms of such Lease (other than any subletting or assignment that does not require Borrower’s consent under such Lease)) executed after the date hereof shall be subject to the Lender’s prior approval, which approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectionnot be unreasonably withheld or delayed.
(bc) Lender shall execute and deliver a Subordination, Non-Disturbance and Attornment Agreement on Lender’s then current standard form to Tenants under future Major Leases approved by Lender promptly upon request with such commercially reasonable changes as may be requested by Tenants, from time to time, as are reasonably acceptable to Lender. Lender’s execution of a Subordination, Non-Disturbance and Attornment Agreement which is not in compliance with the foregoing sentence shall be at Lender’s sole discretion and subject to such additional conditions as Lender shall reasonably determine.
(d) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit in all material respects in a commercially reasonable manner, including, without limitation, any repainting obligations of Borrower pursuant to be done anything to impair the value of any of the Leases as security for the DebtLowe’s Lease; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performedperformed in a commercially reasonable manner, provided, however, Borrower shall not terminate or accept a surrender of a Major Lease (ivexcept pursuant to an express termination right granted to the Tenant under the Lease as of the date hereof) without Lender’s prior approval; (iii) shall not collect any of the Rents more than one (1) month in advance (except other than security deposits deposits); (iv) shall not be deemed execute any assignment of lessor’s interest in the Leases or the Rents collected in advance(except as contemplated by the Loan Documents); (v) shall not execute not, without Lender’s consent, alter, modify or change any other assignment Lease so as to change the amount of or payment date for rent, change the expiration date, grant any option for additional space or term, materially reduce the obligations of the lessee or increase the obligations of lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting hold all security deposits under any all Leases not in accordance with their terms, without the prior written consent of LenderApplicable Law.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(de) Notwithstanding anything contained herein to the contrary, Borrower shall notnot willfully withhold from Lender any information regarding renewal, without the prior written consent extension, amendment, modification, waiver of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminatetermination, reduce rents underrental reduction of, accept a surrender of space underof, or shorten shortening of the term of, any Major LeaseLease during the term of the Loan. The term "Major Lease" Borrower further agrees to provide Lender with written notice of a Tenant “going dark” under such Tenant’s Lease within thirty (30) days after Borrower becomes aware that such Tenant “goes dark” and Borrower’s failure to provide such notice for the second such Tenant “going dark” (which would constitute a Cash Trap Event Period) shall mean constitute an Event of Default. Borrower’s delivery of the certified rent roll required pursuant to Section 4.12 hereof shall not, in and of itself, satisfy the requirement of the preceding sentence.
(f) Borrower shall notify Lender in writing, within two (2) Business Days following receipt thereof, of Borrower’s receipt of any termination fee or payment (“Lease Event Payment”) paid by any Tenant under any Lease between in consideration of any termination, modification or amendment or settlement of any Lease or any release or discharge of any Tenant under any Lease from any obligation thereunder (a “Lease Event”). Borrower as landlord further covenants and a third party as tenant demising in the aggregate more than the lesser of agrees that (i) 15,000 rentable square feet or Borrower shall hold any such Lease Event Payment in trust for the benefit of Lender and (ii) fifteen percent (15%A) in the event such Lease Event Payment is less than $150,000 and such Lease Event does not have a Material Adverse Effect and provided there is no Event of Default or Cash Trap Event Period, such Lease Event Payment shall be payable to Borrower or (B) in the event such Lease Event Payment equals or exceeds $150,000 or such Lease Event has a Material Adverse Effect, such Lease Event Payment shall be placed by Borrower in reserve with Lender, to be disbursed by Lender for tenant improvement and leasing commission costs with respect to the Property and/or for payment of the total rentable square feet at Debt or otherwise in connection with the Loan and/or the Property, as so determined by Lender, in its sole discretion.
(g) Notwithstanding anything to the contrary contained herein, to the extent Lender’s prior approval is required for any leasing matters set forth in this Section 4.14, Lender shall have ten (10) Business Days from receipt of written request and all information and documentation reasonably required to evaluate the applicable Tenant and Lease in which to approve or disapprove such matter, provided that such request to Lender is marked in bold lettering with the following language: “LENDER’S RESPONSE IS REQUIRED WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER” and the envelope containing the request must be marked “PRIORITY”. In the event that Lender fails to respond to the leasing matter in question within such time, Lender’s approval shall be deemed given for all purposes. Borrower shall provide Lender with such information and documentation as may be reasonably required by Lender, including, without limitation, lease comparables and other market information as reasonably required by Lender. For purposes of clarification, Lender’s requesting additional and/or clarified information, in addition to approving or denying any request (in whole or in part), shall be deemed a response by Lender for purposes of the foregoing.
Appears in 2 contracts
Samples: Loan Agreement, Loan Agreement (Consolidated Tomoka Land Co)
Leases and Rents. (a) Borrower may enter into a proposed Lease (including All Leases and all renewals of Leases executed after the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease date hereof shall (i) provides provide for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease)similar properties, (ii) is an arms-length transaction be on commercially reasonable terms with a bona fideunaffiliated, independent third party tenantparties (unless otherwise consented to by Lender), (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) provide that such Lease is subject and subordinate to the Security Instrument and that the lessee thereunder agrees to will attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, any purchaser at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe a foreclosure sale and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) not contain any terms which would have a Material Adverse Effect. Notwithstanding anything to the contrary contained herein, Borrower shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their termsnot, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, (which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender), enter into, renew, extend, amend, modify, permit any assignment of or subletting under, waive any provisions of, release any party to, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, in each case, any Major Lease. The term "Major Lease" shall mean any Lease between .
(b) Without limitation of subsection (a) above, Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) fifteen percent (15%) shall enforce the material terms, covenants and conditions contained in the Leases upon the part of the total rentable square feet lessee thereunder to be observed or performed in a commercially reasonable manner; (iii) shall not collect any of the Rents more than one (1) month in advance (other than security deposits); (iv) shall not execute any assignment of lessor’s interest in the Leases or the Rents (except as contemplated by the Loan Documents); (v) shall not, without Lender’s prior written consent, alter, modify or change any Lease; and (vi) shall hold all security deposits under all Leases in accordance with Legal Requirements. Upon request, Borrower shall furnish Lender with executed copies of all Leases.
(c) Notwithstanding anything contained herein to the contrary, Borrower shall not willfully withhold from Lender any information regarding renewal, extension, amendment, modification, waiver of provisions of, termination, rental reduction of, surrender of space of, or shortening of the term of, any Lease during the term of the Loan. Borrower further agrees to provide Lender with written notice of any commercial Tenant (if any exist at the Property) “going dark” under such Tenant’s Lease within five (5) Business Days after Borrower becomes aware of such Tenant “going dark” and Borrower’s failure to provide such notice shall constitute an Event of Default.
(d) Borrower shall notify Lender in writing, within two (2) Business Days following receipt thereof, of Borrower’s receipt of any early termination fee or payment or other termination fee or payment paid by any Tenant under any commercial Lease or any Major Lease, and Borrower further covenants and agrees that Borrower shall hold any such termination fee or payment in trust for the benefit of Lender and that any use of such termination fee or payment shall be subject in all respects to Lender’s prior written consent in Lender’s sole discretion (which consent may include, without limitation, a requirement by Lender that such termination fee or payment be placed in reserve with Lender to be disbursed by Lender for tenant improvement and leasing commission costs with respect to the Property and/or for payment of the Debt or otherwise in connection with the Loan evidenced by the Note and/or the Property, as so determined by Lender). The foregoing consent right of Lender (including, without limitation, any reserve requirement) shall not be subject to any “cap” or similar limit on the amount of Reserve Funds held by Lender.
(e) To the extent that the Deemed Approval Requirements are fully satisfied in connection with any Borrower request for Lender consent under this Section 4.16 and Lender thereafter fails to respond, Lender’s approval shall be deemed given with respect to the matter for which approval was requested.
Appears in 2 contracts
Samples: Loan Agreement (Medalist Diversified REIT, Inc.), Loan Agreement (Medalist Diversified REIT, Inc.)
Leases and Rents. (a) Borrower may enter into a proposed Lease (including All Leases and all renewals of Leases executed after the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease date hereof shall (i) provides provide for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease)similar properties, (ii) is an arms-length transaction be on commercially reasonable terms with a bona fideunaffiliated, independent third party tenantparties (unless otherwise consented by Lender), (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) provide that such Lease is subject and subordinate to the Security Instrument and that the lessee thereunder agrees to will attorn to Lender, Lender and any purchaser at a foreclosure sale and (viv) is written on the standard form of lease approved by Lendernot contain any terms which would have a Material Adverse Effect. All proposed Major Leases which do not satisfy and all renewals, amendments and modifications thereof executed after the requirements set forth in this Subsection 3.8(a) date hereof shall be subject to the Lender’s prior approval, which approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectionnot be unreasonably withheld or delayed.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debtin a commercially reasonable manner; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performedperformed in a commercially reasonable manner, provided, however, Borrower shall not terminate or accept a surrender of a Major Lease without Lender’s prior approval (ivexcept if the applicable Tenant is in default thereunder beyond all applicable notice and cure periods, and Borrower has provided Lender with prior written notice); (iii) shall not collect any of the Rents more than one (1) month in advance (except other than security deposits deposits); (iv) shall not be deemed execute any assignment of lessor’s interest in the Leases or the Rents collected in advance(except as contemplated by the Loan Documents); (v) shall not, without Lender’s prior written consent (not execute to be unreasonably withheld or delayed), alter, modify or change any other assignment Lease so as to change the amount of or payment date for rent, change the expiration date, grant any option for additional space or term, materially reduce the obligations of the lessor's interest lessee or increase the obligations of lessor (in each case, to the extent the same would, individually or in the aggregate, (A) cause any of the Leases such Lease to violate 4.14(a)(i) through (iii) above or the Rents(B) have a Material Adverse Effect); and (vi) shall not consent to any assignment of or subletting hold all security deposits under any all Leases not in accordance with their termsLegal Requirements. Upon request, without the prior written consent Borrower shall furnish Lender with executed copies of Lenderall Leases.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall notnot willfully withhold from Lender any information regarding renewal, without the prior written consent extension, amendment, modification, waiver of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminatetermination, reduce rents underrental reduction of, accept a surrender of space underof, or shorten shortening of the term of, any Major Lease during the term of the Loan. Borrower further agrees to provide Lender with written notice of a non-residential Tenant “going dark” under such Tenant’s Lease within five (5) Business Days after Borrower obtaining actual knowledge that such Tenant “goes dark.”
(d) Borrower shall notify Lender in writing, within two (2) Business Days following receipt thereof, of Borrower’s receipt of any early termination fee or payment or other termination fee or payment paid by any Tenant under any Lease, and Borrower further covenants and agrees that Borrower shall hold any such termination fee or payment in trust for the benefit of Lender and that any use of such termination fee or payment shall be subject in all respects to Lender’s prior written consent in Lender’s sole discretion (which consent may include, without limitation, a requirement by Lender that such termination fee or payment be placed in reserve with Lender to be disbursed by Lender for tenant improvement and leasing commission costs with respect to the Property and/or for payment of the Debt or otherwise in connection with the Loan evidenced by the Note and/or the Property, as so determined by Lender). The term "Major Lease" foregoing consent right of Lender (including, without limitation, any Reserve requirement) shall mean not be subject to any Lease between “cap” or similar limit on the amount of Reserve Funds held by Lender (including, without limitation, any “cap” or similar limit relating to the Leasing Reserve Funds).
(e) To the extent that the Deemed Approval Requirements are fully satisfied in connection with any Borrower as landlord request for Lender consent under this Section and a third party as tenant demising in Lender thereafter fails to respond, Lender’s approval shall be deemed given with respect to the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Propertymatter for which approval was requested.
Appears in 2 contracts
Samples: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Leases and Rents. (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Unless otherwise consented to in writing by Lender, provided such proposed Lease or Renewal Lease all Leases and all renewals of Leases executed after the date hereof shall (i) provides provide for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease)similar properties, (ii) is an arms-length transaction be with a bona fideunaffiliated, independent third party tenantparties on terms and conditions (including, without limitation, terms and conditions relating to free rent, tenant improvements and other allowances) which are, in each case, commercially reasonable and comparable to existing local market terms and conditions for similar properties, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) provide that such Lease is subject and subordinate to the Security Instrument and that the lessee thereunder will attorn to Lender and any purchaser at a foreclosure sale (so long as Lender or such purchaser agrees to attorn to Lender, recognize the Tenant) and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) not contain any terms which would have an Individual Material Adverse Effect on any Individual Property or an Aggregate Material Adverse Effect. Except as provided below, Borrower shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their termsnot, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, (which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender), enter into, renew, extend, amend, modify, permit any assignment of or subletting under, waive any provisions of, release any party to, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, in each case, any Major Lease. The term "Major Lease" Notwithstanding anything to the contrary set forth herein, Lxxxxx’s consent shall mean any Lease between Borrower as landlord and a third party as tenant demising not be required in the aggregate more than the lesser of connection with (i) 15,000 rentable any Lease (or amendment, modification or termination thereof) that is not a Major Lease, (ii) any renewals, expansions causing the demised premises not to exceed four hundred thousand (400,000) square feet or extensions of any Lease (including a Major Lease) by any Tenant that is a party to such Lease as of the Closing Date so long as the rental terms pursuant to such Lease are on market rental terms, provided that any expansion with respect to a Major Lease that grants the applicable Tenant any termination right in the event such expansion work is not completed shall require Lender’s consent, (iii) immaterial modifications that do not (I) change the economic terms and/or accelerate the expiration date of a Major Lease (including, without limitation, the terms and conditions of any purchase options, rights of first refusal and/or rights of first offer to purchase the applicable Individual Property set forth therein and the material economic terms and conditions of any renewal, expansion or extension thereof), (II) materially reduce the obligations of the Tenant under a Major Lease and/or (III) materially increase the obligations of Borrower under a Major Lease or (iv) termination by the applicable Tenant of any Major Lease based upon an express termination right contained in such Major Lease. All Leases executed after the Closing Date shall provide that they are subordinate to the Security Instrument encumbering the applicable Individual Property and that the Tenant agrees to attorn to Lender or any purchaser at a sale by foreclosure or power of sale (so long as Lender or such purchaser agrees to recognize the Tenant). Lender, at the request of Borrower, shall enter into a subordination, attornment and non-disturbance agreement in the form required under the applicable Lease so long as such form is on commercially reasonable terms, or if no such specific form is required, substantially in the form attached hereto as Exhibit B or in such other form that is reasonably satisfactory to Lender, Borrower and such Tenant (provided in each case that Lender shall agree to modifications reasonably required, and on commercially reasonable terms, to reflect an obligation on behalf of Lender to release any casualty or condemnation proceeds in connection with any restoration required pursuant to a Lease) (a “Subordination, Non-Disturbance and Attornment Agreement”) with any Tenant entering into a Major Lease (other than a Lease to an Affiliate of Borrower) after the Closing Date. Lender shall promptly respond, at Borrower’s sole costs and expense, to any request by a Tenant under a Major Lease for an amendment to an existing Subordination, Non-Disturbance and Attornment Agreement. All actual and reasonable, out-of-pocket costs and expenses of Lender and Servicer in connection with the negotiation, preparation, execution and delivery by Lxxxxx and Servicer of any Subordination, Non-Disturbance and Attornment Agreement, including, without limitation, reasonable actually incurred attorneys’ fees and disbursements and the current fee being assessed by Servicer in connection therewith, shall be paid by Borrower.
(b) Without limitation of subsection (a) above, Borrower (i) shall observe and perform the obligations imposed upon the lessor under the Leases (including without limitation all obligations related to Unfunded Obligations) in a commercially reasonable manner; (ii) fifteen percent (15%) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the total rentable square feet lessee thereunder to be observed or performed in a commercially reasonable manner; (iii) shall not collect any of the Rents more than one (1) month in advance (other than Security Deposits); (iv) shall not execute any assignment of lessor’s interest in the Leases or the Rents (except as contemplated by the Loan Documents); (v) shall not, without Lxxxxx’s prior written consent, alter, modify or change any Lease to the extent the same would, individually or in the aggregate, (A) cause any such Lease to violate Section 4.14(a)(i) through (iii) above or (B) have an Individual Material Adverse Effect on any Individual Property or an Aggregate Material Adverse Effect and (vi) shall hold all Security Deposits in accordance with Legal Requirements. Upon request, Bxxxxxxx shall furnish Lender with executed copies of all Leases (to the extent not previously delivered to Lender unless Lxxxxx notifies Borrower it is unable to locate such executed copies).
(c) Notwithstanding anything contained herein to the contrary, Borrower shall not willfully withhold from Lender any information regarding renewal, extension, amendment, modification, waiver of provisions of, termination, rental reduction of, surrender of space of, or shortening of the term of, any Lease during the term of the Loan. Bxxxxxxx agrees to provide Lxxxxx with written notice of any material event of default under a Major Lease within ten (10) Business Days after Borrower’s actual knowledge of the occurrence of any such event of default. Borrower’s failure to provide any of the aforesaid notices shall, at Lender’s option, constitute an Event of Default.
(d) Borrower shall notify Lender in writing, within ten (10) Business Days following receipt thereof, of Borrower’s receipt of any early termination fee or payment or other termination fee or payment paid by any Tenant under any Lease, Borrower shall deposit all termination fees into the PropertyRestricted Account for disbursement in accordance with the Restricted Account Agreement. Upon the occurrence and during the continuance of a Trigger Period, any termination fee or payment received by Borrower shall be deposited in reserve with Lender into the Leasing Reserve Account to be disbursed by Lender for tenant improvement and leasing commission costs in accordance with Section 8.3 hereof.
(e) Upon the occurrence and during the continuance of an Event of Default, Borrower shall, within thirty (30) days of demand by Lxxxxx, deliver to Lender all Security Deposits. Without limitation of any other term or provision contained herein, for purposes of clarification, for a Security Deposit to be deemed “delivered to Lender” in connection with the foregoing, the same must be in the form of cash or in a letter of credit solely in Lxxxxx’s name. Such Security Deposits shall be held by Lender or Servicer for the benefit of the applicable Tenants in accordance with applicable Legal Requirements and the applicable Leases.
(f) To the extent that the Deemed Approval Requirements are satisfied in connection with any Borrower request for Lender consent under this Section and Lxxxxx thereafter fails to respond, Lxxxxx’s approval shall be deemed given with respect to the matter for which approval was requested.
Appears in 2 contracts
Samples: Loan Agreement (Industrial Logistics Properties Trust), Loan Agreement (Industrial Logistics Properties Trust)
Leases and Rents. Beneficiary may, with or without taking ---------------- possession of the Trust Property, as attorney and agent-in-fact for Trustor constituted and appointed by Trustor with full power of substitution (which power is coupled with an interest and is irrevocable), in the name of Trustor, Beneficiary, or both:
(a) Borrower may enter into a proposed Lease (including the renewal demand, collect, settle, adjust, compromise, and enforce, by legal proceedings or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lenderotherwise, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality payment of the tenant) as Rents, endorse the name of Trustor upon any payments or proceeds of the date such Lease is executed by Borrower (unlessRents and deposit the same for the account of Beneficiary and do all other acts and things necessary, in the case of a Renewal LeaseBeneficiary's sole discretion, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value obtain control and use of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.Rents;
(b) Borrower terminate the license granted to Trustor hereunder to collect the Rents and thereafter Beneficiary shall have all right, title and interest in and to the Leases and the Rents by virtue of the present assignment thereof granted to Trustee for the benefit of Beneficiary hereunder;
(c) require Trustor to deliver to Beneficiary the originals of the Leases, with appropriate endorsement and/or other specific evidence of assignment thereto to Beneficiary, which endorsement and/or assignment shall be in form and substance acceptable to Beneficiary;
(d) notify any of the obligors under the Leases that the Leases have been assigned to Beneficiary and direct such obligors thereafter to make all payments due from them under the Leases directly to Beneficiary; and
(e) require Trustor to direct all obligors of the Leases to make all payments due them under the Leases directly to Beneficiary. Notwithstanding anything in this subsection 11.2.3 to the contrary, under no circumstances shall Beneficiary have any duty to produce Rents from the Trust Property. Regardless of whether or not Beneficiary, in person or by agent, takes actual possession of the Premises and Improvements, Beneficiary is not and shall not be deemed to be (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of a "mortgagee in possession" for any of the Leases as security for the Debtpurpose; (ii) upon request, shall promptly send copies to Lender responsible for performing any of all notices the obligations of default which Borrower shall send or receive thereunderthe lessor under any Lease; (iii) shall enforce all responsible for any waste committed by lessees or any other parties, any dangerous or defective condition of the material termsTrust Property, covenants and conditions contained or any negligence in the Leases upon the part management, upkeep, repair or control of the tenant thereunder to be observed Trust Property; or performed, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest liable in any of manner for the Leases Trust Property or the Rents; and (vi) shall not consent to use, occupancy, enjoyment or operation of all or any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lenderpart thereof.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 2 contracts
Samples: Deed of Trust, Assignment of Leases and Rents, and Security Agreement (Mikohn Gaming Corp), Deed of Trust, Assignment of Leases and Rents, and Security Agreement (Mikohn Gaming Corp)
Leases and Rents. (a) Borrower may After the termination of this Lease and during the period thereafter during which any Lender is entitled to enter into a proposed new lease of the Leased Premises, Landlord will not voluntarily terminate any Lease or the rights of the Subtenant thereunder (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original permissible lease under this Lease), unless such Subtenant is in default under such lease and has failed to cure same within the time provided under such lease. During such periods Landlord shall receive all rent and other payments due from Subtenants (ii) is an arms-length transaction with subject to Landlord’s right to not accept such rent and other payments as set forth below), including Subtenants whose attornment it shall have agreed to accept, as agent of such Lender and shall deposit such rents and payments in a bona fideseparate and segregated account, independent third party tenantbut may withdraw and pay to Landlord such sums as are required or were required to be paid to Landlord under this Lease, (iii) does not have a materially adverse effect on at the value time and in the amounts due hereunder, and may withdraw and expend such amounts as are necessary for the maintenance, operation, and management of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not Leased Premises in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument Lease; and, upon the execution and delivery of such new lease, Landlord shall account to the lessee under the said new lease for the balance, if any subordinate agreement binding upon Lender with respect (after application as aforesaid), of the rent and other payments made under said leases. The collection of rent by Landlord acting as an agent pursuant to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods this Section shall not be considered deemed an action which has a materially adverse effect on the value acceptance by Landlord for its own account of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth attornment of any Subtenant unless Landlord shall have agreed in this Subsection writing with such Subtenant that its tenancy shall be subject continued following the expiration of any period during which a Lender may be granted a new lease, in which case such attornment shall take place upon such expiration but not before; provided, however, in the event Landlord determines that it cannot accept rent payments from a Subtenant without risk of being deemed to have accepted such Subtenant’s attornment (and Landlord has not previously agreed to recognize such Subtenant in the prior approval event of Lender and its counsela Default under this Lease by Tenant), which approval Landlord shall not be unreasonably withheld have the right to direct such Subtenant to pay such rents directly to Lender. If all Lenders fail to exercise their rights to enter into a new lease or delayedfail to timely execute such new lease, at Borrower's expense. Borrower shall promptly deliver to Lender copies all rents collected by Landlord on behalf of amendments, modifications and waivers which are entered into such Lenders pursuant to this Subsection together Section shall become Landlord’s property free and clear of any claim by such Lenders and such Lenders shall have no further rights with Borrower's certification that it has satisfied all of the conditions of this Subsectionrespect thereto.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 2 contracts
Samples: Disposition and Development Agreement, Disposition and Development Agreement
Leases and Rents. (a) Borrower may Subject to the terms of this Section 37, Mortgagee shall not exercise any right to enter into the Mortgaged Property for the purpose of collecting the rents accruing from the Premises (the "Rents"), and grants Agency and Mortgagor a proposed Lease (including license to collect the renewal Rents. Mortgagor shall hold the Rents in trust for use in payment of the Loan. The license of the Agency and Mortgagor to collect the Rents shall be automatically terminated and revoked, without the necessity of notice or extension other action by the Mortgagee, both of which are expressly waived, upon the occurrence of an existing Lease (a "Renewal Lease")) without Event of Default by Mortgagor under the prior written consent terms of Lenderany instrument evidencing the Loan or this Mortgage by giving notice of such revocation to Agency and Mortgagor. Following such termination, provided such proposed Lease or Renewal Lease (i) provides for rental rates Mortgagee may collect, retain, and terms comparable to existing local market rates and terms (taking into account apply the type and quality Rents toward payment of the tenant) Loan in such priority and proportions as Mortgagee, in its discretion, shall deem proper, or to the operation, maintenance and repair of the date such Lease is executed by Borrower (unlessMortgaged Property, and in either case, whether or not Mortgagee shall have commenced a foreclosure of this Mortgage or shall have applied or arranged for the case appointment of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectionreceiver.
(b) Borrower (i) shall observe In furtherance of such right, Agency and perform all Mortgagor shall, promptly upon request of Mortgagee, execute and deliver notices to tenants at the obligations imposed upon the lessor under the Leases Mortgaged Property directing that future rent payments be made directly to Mortgagee, or to such other person as Mortgagee may direct. Mortgagor hereby constitutes and shall not do or permit to be done anything to impair the value of any of the Leases as security appoints Mortgagee its attorney in fact for the Debt; purpose of signing any such notice on behalf of Mortgagor (ii) upon requestwhich power of attorney is coupled with an interest and may not be revoked), and such notice shall promptly send copies be conclusive authority to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained tenants that the payments referred to in the Leases upon the part of the tenant thereunder are to be observed made to Mortgagee or performedas otherwise directed, (iv) and the tenants shall not collect any of the Rents more than one (1) month be fully protected in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not making such payments in accordance with their terms, without the prior written consent provisions of Lendersuch notice.
(c) Borrower mayNo pledge or assignment of any rents of the Mortgaged Property or any portion thereof, without the other than any given to Mortgagee is outstanding or in force. Agency and Mortgagor will make no such pledge or assignment thereof except with prior written consent of Lender, amend, modify Mortgagee. If any such pledge or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of termassignment is made, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection same shall be deemed to be subject to hereto and for the prior approval use and benefit of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this SubsectionMortgagee.
(d) Notwithstanding anything contained herein Mortgagee shall have all of the rights against tenants of the Mortgaged Property as set forth in Section 291 f of the Real Property Law of New York. Mortgagor shall (1) fulfill or perform each and every provision of any lease affecting the Mortgaged Property on the part of Mortgagor to be fulfilled or performed, and (2) enforce, short of termination of any leases affecting the Mortgaged Property, the performance or observance of the provisions thereof by the tenants thereunder. In addition to the contraryrights which Mortgagee may have herein, Borrower upon the occurrence of an Event of Default, Mortgagee, at its option, may require Agency and Mortgagor to pay monthly in advance to Mortgagee, or any receiver appointed to collect the Rents, the fair and reasonable rental value for the use and occupation of such part of the Mortgaged Property as may be in possession of the Mortgagee, or to such receiver and, in default thereof, Agency and Mortgagor may be evicted by summary proceedings or otherwise. Nothing contained in this Section 37 shall be construed as imposing on Mortgagee any of the obligations of the lessor under any leases.
(e) Agency and Mortgagor shall not, except as consented to by Mortgagee, lease or otherwise grant to any person any right to use or occupy all or any portion of the Mortgaged Property. Agency and Mortgagor shall not, without the prior written consent of LenderMortgagee in each instance, which consent shall not be unreasonably withheld or delayed: (1) enter into, renew, extend, amend, into any lease; (2) modify, waive amend or extend any provisions of, terminate, reduce rents under, lease; (3) terminate or cancel or accept a surrender of space underany lease; (4) discount any Rents under any lease or increase tenant allowances or accept a prepayment of any Rent due under any lease, except a payment of Rent one (1) month in advance or a prepayment in the nature of security for the performance of the obligations of the tenant under such lease; (5) assign, pledge or encumber Agency's and Mortgagor's interest in any leases, the Rents, or shorten permit such interest to be assigned, pledged or encumbered, except pursuant hereto; (6) consent to an assignment or subletting by the term oftenant under any lease; (7) waive, excuse, discharge or in any manner release any tenant under any terms and conditions to be performed by such tenant under its lease; (8) modify, amend or release any guaranty or any lease except in accordance with the terms of such guaranty; or (9) take or fail to take any other action with respect to any lease that would tend to impair or diminish the value of the security of this Mortgage or would render any representation or warranty by Agency or Mortgagor under this Mortgage or any lease false or misleading. The foregoing notwithstanding, Mortgagor may lease or consent to sublease space, consisting of a total of 5,000 square feet or less, of the Mortgaged Property, without the consent of Mortgagee.
(f) Each lease entered into by Mortgagor from and after the date hereof and each renewal of an existing lease shall provide: (1) that, at the option of Mortgagee, such lease shall be subject and subordinate in all respects to this Mortgage and the lien created hereby, and to any renewals thereof, including any increase in the principal amount secured by this Mortgage, and any increase in the interest rates set forth in the Note and to each and all of the rights of Mortgagee or any holder thereof; (2) that such provision shall be self operative; (3) that, in confirmation of such subordination, the tenant under such lease shall promptly execute and deliver any certificate that the holder of this Mortgage may reasonably request, provided Mortgagee agrees to grant such tenant the commercially standard rights to nondisturbance; (4) that the tenant execute and deliver from time to time estoppel certificates (each, a "Tenant Estoppel Certificate") addressed to Mortgagee or its designee and containing such information as may be reasonably requested by the Mortgagee; and (5) to the extent not so provided by applicable law, that in the event of the enforcement by Mortgagee of the remedies provided for by law or by this Mortgage, Mortgagee, or any successors or assigns of Mortgagee, shall, at its or their option, succeed to the interest of landlord under such leases, whether through possessory or foreclosure action or a deed in lieu of foreclosure.
(g) Agency and Mortgagor, promptly after obtaining knowledge thereof, shall notify Mortgagee of any material default under any lease (including, without limitation, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising default in the aggregate more than payment of any sums due under such Lease) or of any action or proceeding materially and adversely affecting the lesser Mortgaged Property and shall deliver to Mortgagee copies of all notices of material default given or received by Agency and Mortgagor under the leases (including, without limitation, any default in the payment of any sums due under such lease.
(h) Agency and Mortgagor shall at all times perform and comply with, or cause to be performed and complied with, all of the terms, covenants and conditions of the leases to be performed or complied with by Agency and Mortgagor thereunder, maintain the leases in full force and effect, enforce the leases in accordance with their terms, and comply with all reasonable requests from Mortgagee from time to time with respect to such enforcement.
(i) 15,000 rentable square feet or (ii) fifteen percent (15%) At any time, and from time to time, Mortgagor shall deliver to Mortgagee, on request, a schedule of the total rentable square feet leases then in existence, certified by Mortgagor to be true and complete, which schedule shall set forth such information with respect to each lease as may be requested by the Mortgagee. In addition, Agency and Mortgagor, upon Mortgagee's request (which request shall not be made more frequently than one (1) time per year unless reasonably required by Mortgagee), shall promptly obtain from each tenant a Tenant Estoppel Certificate.
(j) All security or other deposits of tenant held by Mortgagor shall be treated as trust funds, shall not be commingled with any other funds of Mortgagor, shall not be subject to any offset rights of Mortgagee contained herein, and shall be deposited in a tenant's security account to be maintained by Mortgagor at a commercial bank, savings bank or savings and loan association, satisfactory to the PropertyMortgagee, located in the State of New York.
Appears in 2 contracts
Samples: Mortgage and Security Agreement (Mapinfo Corp), Mortgage and Security Agreement (Mapinfo Corp)
Leases and Rents. (a) Borrower may enter into a proposed Lease (including All Leases and all renewals of Leases executed after the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease date hereof shall (i) provides provide for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease)similar properties, (ii) is an arms-length transaction be on commercially reasonable terms with a bona fideunaffiliated, independent third party tenantparties (unless otherwise consented to by Lender), (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) provide that such Lease is subject and subordinate to the Security Instrument and that the lessee thereunder agrees to will attorn to Lender, Lender and any purchaser at a foreclosure sale and (viv) is written on the standard form of lease approved by Lendernot contain any terms which would have a Material Adverse Effect. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject Notwithstanding anything to the contrary contained herein, Borrower shall not, without the prior written approval of Lender and its counsel(which approval shall not be unreasonably withheld or delayed), at Borrower's expense. Borrower shall promptly deliver to Lender copies enter into, renew, extend, amend, modify, permit any assignment of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all or subletting under, waive any provisions of, release any party to, terminate, reduce rents under, accept a surrender of space under, or shorten the conditions of this Subsectionterm of, in each case, any Major Lease.
(b) Without limitation of subsection (a) above, Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of (including, without limitation, any of obligation in the Leases as security for relating to obtaining and/or maintaining a certificate of occupancy at the DebtProperty) in a commercially reasonable manner; (ii) shall pay all tenant improvement costs, leasing commissions and similar allowances and incentives and shall perform all landlord improvement and other work, in each case, associated with the Leases (including, without limitation, the Landlord Obligations) as and to the extent due and payable and shall, upon Lender’s request, shall promptly send copies provide evidence reasonably acceptable to Lender of all notices of default which Borrower shall send or receive thereunderthe same; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performed, performed in a commercially reasonable manner; (iv) shall not collect any of the Rents more than one (1) month in advance (except other than security deposits shall not be deemed Rents collected in advancedeposits); (v) shall not execute any other assignment of the lessor's ’s interest in any of the Leases or the RentsRents (except as contemplated by the Loan Documents); and (vi) shall not consent not, without Lender’s prior written consent, alter, modify or change any Lease to the extent the same would, individually or in the aggregate, (A) cause any assignment of such Lease to violate 4.14(a)(i) through (iii) above or subletting (B) have a Material Adverse Effect; and (vii) shall hold all security deposits under any all Leases not in accordance with their termsLegal Requirements. Upon request, without the prior written consent Borrower shall furnish Lender with executed copies of Lenderall Leases.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall notnot willfully withhold from Lender any information regarding renewal, without the prior written consent extension, amendment, modification, waiver of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminatetermination, reduce rents underrental reduction of, accept a surrender of space underof, or shorten shortening of the term of, any Major Lease during the term of the Loan. Borrower further agrees to provide Lender with written notice of a Tenant “going dark” under such Tenant’s Lease within five (5) Business Days after such Tenant “goes dark” and Borrower’s failure to provide such notice shall constitute an Event of Default.
(d) Borrower shall notify Lender in writing, within two (2) Business Days following receipt thereof, of Borrower’s receipt of any early termination fee or payment or other termination fee or payment paid by any Tenant under any Lease. The term "Major Lease" , and Borrower further covenants and agrees that, within five (5) Business Days following Borrower’s receipt thereof, Borrower shall mean any Lease between Borrower as landlord deposit such termination fee or payment with Lender and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet if no Event of Default is then continuing, Lender shall deposit same in the account with Lender or Servicer (which such account shall be deemed a Reserve Account and Reserve Fund hereunder) for disbursement under such terms and conditions as may be reasonably determined by Lender and (ii) fifteen percent if an Event of Default is then continuing, same shall (15%at Lender’s option in Lender’s sole discretion) be held by Lender as additional collateral for the Debt, disbursed by Lender for tenant improvement and leasing commission costs with respect to the Property and/or applied towards the payment of the total rentable square feet at Debt in such order, priority and proportions as Lender in its sole discretion shall determine. The foregoing consent right of Lender (including, without limitation, any reserve requirement) shall not be subject to any “cap” or similar limit on the Propertyamount of Reserve Funds held by Lender (including, without limitation, any “cap” or similar limit relating to the Landlord Obligations Reserve Funds).
(e) With respect to the ULURP Approval, (i) Borrower will provide Lender prompt written notice and copies of, in each case, any material notices or other similar items with respect to the same (including, without limitation, any denial or approval thereof) and (ii) Borrower shall make commercially reasonable efforts to take all actions within its power or control to cause the ULURP Approval to occur within a commercially reasonable timeframe (including, without limitation, by complying with all reasonable requests of initial Specified Tenant and/or ULURP, in each case, related thereto).
Appears in 2 contracts
Samples: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Leases and Rents. (a) Borrower Mortgagee is hereby granted and assigned by Mortgagor the right to enter the Mortgaged Property for the purpose of enforcing its interest in the Leases and the Rents, this Mortgage constituting a present, absolute assignment of the Leases and the Rents. Nevertheless, subject to the terms of this paragraph 7, Mortgagee grants to Mortgagor a revocable license to operate and manage the Mortgaged Property and to collect the Rents. Mortgagor shall hold the Rents, or a portion thereof sufficient to discharge all current sums due on the Debt, for use in the payment of such sums. Upon or at any time after an Event of Default, the license granted to Mortgagor herein may be revoked by Mortgagee, and Mortgagee may enter into a upon the Mortgaged Property, and collect, retain and apply the Rents toward payment of the Debt in such priority and proportions as Mortgagee in its discretion shall deem proper.
(a) All Written Leases shall be written on the standard form of lease which has been approved by Mortgagee. Upon written request from Mortgagee, Mortgagor shall furnish Mortgagee with executed copies of all Leases and all modifications thereto as soon as may be practicable. No material changes may be made to the Mortgagee-approved standard forms except as may be required by applicable law. In addition, all renewals of Leases and all proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides leases shall provide for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an shall be arms-length transaction with transactions. Mortgagor shall not enter into any lease having a bona fide, independent third party tenant, term of more than three (iii3) does years. All Leases must be Written Leases unless such Leases create periodic tenancies on a month to month basis or for a shorter period and are terminable upon not have a materially adverse effect on the value of the Property taken as a whole, more than thirty (iv30) is subject and days' notice. [All Leases shall provide that they are subordinate to the Security Instrument this Mortgage and that the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this SubsectionMortgagee.
(b) Borrower ] Mortgagor (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performed, ; (iviii) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (viv) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; (v) shall not materially alter, modify or change the terms of the Leases, or cancel or terminate the Leases or accept a surrender thereof or convey or transfer or suffer or permit a conveyance or transfer of the Premises or of any interest therein so as to effect a merger of the estates and rights of, or a termination or diminution of the obligations of, lessees thereunder, except that Mortgagor may terminate any Lease in exercising its rights as landlord thereunder upon a default by the tenant under said Lease; (vi) shall not alter, modify or change the terms of any guaranty of the Leases or cancel or terminate such guaranty; (vii) shall not consent to any assignment of or subletting under any the Leases not in accordance with their terms; and (viii) shall execute and deliver all such further assurances, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, confirmations and assignments in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance connection with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect Mortgaged Property as Mortgagee shall from time to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectiontime require.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 2 contracts
Samples: First Mortgage and Security Agreement (Century Properties Fund Xvi), First Mortgage and Security Agreement (Century Properties Fund Xii)
Leases and Rents. (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease ("a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) the terms of such Lease provide that such Lease is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of residential lease currently used by Borrower at the Property, which lease has been previously approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a3.7(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Notwithstanding the foregoing, Lender agrees that Borrower shall promptly deliver have the right from time to Lender copies time, without the consent of all Leases which are entered into pursuant Lender, to this Subsection together with Borrower's certification that it has satisfied all make non-material modifications to its standard form of residential lease so long as such modified lease does not (i) materially and adversely affect the conditions value of this SubsectionProperty and (ii) affect the subordination of said lease to any mortgage, deed of trust, deed to secure debt or other similar security instrument affecting the Property.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon requestrequest of Lender, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, ; (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) upon request of Lender, shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate lease subordination agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Upon Lender's reasonable request, Borrower shall promptly deliver to Lender copies of all Leases, amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 2 contracts
Samples: Open End Mortgage and Security Agreement (Associated Estates Realty Corp), Open End Mortgage and Security Agreement (Associated Estates Realty Corp)
Leases and Rents. (a) Unless Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the shall have received Lender’s prior written consent consent, all Leases and all renewals of Lender, provided such proposed Lease or Renewal Lease Leases executed after the date hereof shall (i) provides provide for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease)similar properties, (ii) is an arms-length transaction be on commercially reasonable terms with a bona fideunaffiliated, independent third party tenantparties (unless otherwise consented to by Lender), (iii) does not have a materially adverse effect on the value of the Property taken as a wholefor each Individual Continental Property, (iv) provide that such Lease is subject and subordinate to the Security Instrument and that the lessee thereunder agrees to will attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, any purchaser at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe a foreclosure sale and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) not contain any terms which would have a Material Adverse Effect. Notwithstanding anything to the contrary contained herein, Borrower shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their termsnot, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, (which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender), enter into, renew, extend, amend, modify, permit any assignment of or subletting under, waive any material provisions of, release any party to, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, in each case, any Major LeaseLease at an Individual Continental Property. The term "Major Lease" At any time that Lender’s approval is required under this Section 4.14(a), provided no Event of Default is continuing, Lender’s approval shall mean any Lease between be deemed granted if the Deemed Approval Requirements have been satisfied with respect thereto.
(b) Without limitation of subsection (a) above, except in connection with Prior Hurricane Damage, Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or shall observe and perform the material obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) fifteen percent (15%) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the total rentable square feet lessee thereunder to be observed or performed in a commercially reasonable manner (which shall not, for the avoidance of doubt, require termination thereof); (iii) shall not collect any of the Rents more than one (1) month in advance (other than Security Deposits); (iv) shall not execute any assignment of lessor’s interest in the Leases or the Rents (except as contemplated by the Loan Documents); (v) shall not, without Lender’s prior written consent, alter, modify or change any Lease to the extent the same would, individually or in the aggregate, (A) cause any such Lease to violate Section 4.14(a)(i) through (iii) above or (B) have a Material Adverse Effect; and (vi) shall hold all Security Deposits in accordance with Legal Requirements. Upon request, Borrower shall furnish Lender with executed copies of all Leases.
(c) Notwithstanding anything contained herein to the contrary, Borrower shall not willfully withhold from Lender any information required to be delivered pursuant to the terms of this Agreement regarding renewal, extension, amendment, modification, waiver of provisions of, termination, rental reduction of, surrender of space of, or shortening of the term of, any Lease during the term of the Loan. Borrower further agrees to provide Lender on a quarterly basis with written notice of any Tenants under any Major Leases “going dark” under such Tenant’s Major Lease, it being understood that, with respect to any Individual Puerto Rico Property for which the related PR Restoration has been completed in accordance with Section 4.29 hereof, the foregoing notice requirement shall apply to any Major Lease at such Individual Puerto Rico Property. Borrower agrees to use commercially reasonable efforts to provide Lender with written notice of any monetary event of default under a Major Lease within ten (10) Business Days after the occurrence of any such event of default, it being understood that, with respect to any Individual Puerto Rico Property for which the related PR Restoration has been completed in accordance with Section 4.29 hereof, the foregoing notice requirement shall apply to any Major Lease at such Individual Puerto Rico Property. Borrower’s obligations under this Section 4.14(c) shall be deemed satisfied in the required information is set forth in the reports delivered by Borrower or Sponsor pursuant to Section 4.12.
(d) Borrower shall notify Lender in writing, within five (5) Business Days following receipt thereof, of Borrower’s receipt of any early termination fee or payment or other termination fee or payment paid by any Tenant under any Lease at an Individual Continental Property, and Borrower further covenants and agrees that Borrower shall pay to Lender such amount for deposit into the Leasing Reserve Account and such deposit shall not be subject to any “cap” or similar limit relating to the Leasing Reserve Funds.
(e) Upon the occurrence of an Event of Default, Borrower shall, within thirty (30) days of demand by Lender, deliver to Lender all Security Deposits. Without limitation of any other term or provision contained herein, for purposes of clarification, for a Security Deposit to be deemed “delivered to Lender” in connection with the foregoing, the same must be in the form of cash or in a letter of credit solely in Lender’s name.
(f) Lender, at the Propertyrequest of Borrower, shall enter into a subordination, attornment and non-disturbance agreement in a form that is reasonably satisfactory to Lender and such Tenant (a “Non-Disturbance Agreement”) in connection with any Tenant under a Major Lease, any Tenants under a Lease who are leasing the land demised under such Lease and own the improvements thereon or any nationally or regionally recognized Tenant entering into a Lease in each instance, in accordance with the terms and conditions hereof that requires a Non-Disturbance Agreement pursuant to the terms of its Lease (other than a Lease to an Affiliate of Borrower) after the Closing Date; provided that Lender, at the request of Borrower, shall use commercially reasonable efforts to enter into a Non-Disturbance Agreement with all other Tenants. Lender shall promptly respond, at Borrower’s sole costs and expense, to any request by a Tenant under a Major Lease for an amendment to an existing Non-Disturbance Agreement. If Borrower requests Lender to enter into a Non-Disturbance Agreement with any Tenant in substantially the same form attached hereto as Exhibit E, then Lender shall deliver such Non-Disturbance Agreement in such form within ten (10) Business Days of written request therefor. All actual and reasonable, out-of-pocket costs and expenses of Lender and Servicer in connection with the negotiation, preparation, execution and delivery by Lender and Servicer of any Non-Disturbance Agreement shall be paid by Borrower, including, without limitation, reasonable attorneys’ fees and disbursements and the current fee being assessed by Servicer in connection therewith, provided, that such fee to Servicer shall not exceed $1,500.00.
Appears in 2 contracts
Samples: Loan Agreement (Retail Value Inc.), Loan Agreement (Retail Value Inc.)
Leases and Rents. (a) Except as otherwise consented to by Lender, all Leases shall be written on a standard form of lease for the Property which shall have been submitted to Lender in connection with the origination of the Loan or otherwise approved by Lender. Upon request, Borrower shall furnish Lender with executed copies of all Leases. Except as required by changes in law or agreements with any association formed by the homeowners association for the Property established for the benefit of the pad site lessees and owners or lessees of manufactured homes to be placed thereon, provided that in no event shall any such agreements have a Material Adverse Effect (as hereinafter defined), no material changes may enter into a proposed Lease (including be made to the renewal or extension of an existing Lease (a "Renewal Lease")) Lender-approved standard lease without the prior written consent of Lender, provided such which approval shall not be unreasonably withheld or delayed. In addition, all renewals of Leases and all proposed Lease or Renewal Lease (i) provides leases shall be on arms length terms, shall provide for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, rents then prevailing in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value market area of the Property taken or as reasonably determined by Borrower in a wholemanner consistent with prudent business practices of owners of similar properties and shall provide for free rent only if the same is consistent with prevailing market conditions; provided, however, (ivx) is subject Borrower shall be permitted to offer leasing incentive consistent with its ordinary business and subordinate to the Security Instrument marketing practices and the lessee thereunder agrees to attorn to Lenderthose of its affiliates, and (vy) is Borrower shall be permitted to allow month-to-month tenancies without obtaining written Lease renewals following the expiration of a Lease with an initial term of not less than six (6) months. Subject to the restrictions contained in this Section 3.6(a), Borrower shall be permitted to lease sites at the Property to Sun Home Services, Inc. ("SHS"), an affiliate of Borrower, as well as other dealers of manufactured homes, so that SHS and such other dealers may place manufactured homes on such sites and enter into residential lease agreements pursuant to which tenants shall lease such manufactured homes, and sublease such sites, from SHS or such other dealers; provided, however, SHS and such other dealers shall be permitted to terminate any of its leases with Borrower if the standard form tenants of lease approved by LenderSHS or such other dealers default under their leases with SHS or such other dealers. All proposed commercial Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) and renewals of existing Leases for commercial space shall be subject to the prior approval of Lender and its counsel, at Borrower's ’s expense. Borrower All Leases shall promptly deliver provide that they are subordinate to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect that the lessee agrees to such Leaseattorn to Lxxxxx. A termination of For purposes hereof, the term “Material Adverse Effect” shall mean a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially material adverse effect on upon the value current use or operation of the Property taken as a whole. Any amendmentmobile home park, modificationthe management of the Property in a manner consistent with industry standards for similar properties, waiverthe rent generated from the Property, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval ability of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all enforce the terms of the conditions of this SubsectionLoan Documents.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 2 contracts
Samples: Mortgage and Security Agreement (Sun Communities Inc), Mortgage and Security Agreement (Sun Communities Inc)
Leases and Rents. (a) Borrower may enter into a proposed Lease The Grantor hereby absolutely and unconditionally assigns, sells, transfers and conveys all of the right, title and interest in and to all Leases and all renewals, replacements and guarantees thereof along with all of the rents and the right to receive and apply the rents, issues and profits of the Premises (including the renewal or extension “Rents”) to the Beneficiary. This assignment is absolute in nature and not an assignment for additional security only. Subject to the terms of this Paragraph 7, until the occurrence of an existing Lease Event of Default, the Grantor shall have the right under a retained and reserved license (a "Renewal Lease")but limited as provided herein) without to collect Rents and each tenant may pay Rents directly to Grantor; but after an Event of Default, the prior written consent Grantor’s license shall automatically terminate and be revoked and to the extent Grantor collects any Rents thereafter accruing or paid, Grantor covenants to hold all such Rents in trust for the use and benefit of LenderBeneficiary. Following such revocation of Grantor’s license, provided such proposed Lease each tenant is hereby authorized and directed to pay directly to Beneficiary all Rents thereafter accruing or Renewal Lease (i) provides for rental rates payable, and terms comparable to existing local market rates the Beneficiary may retain and terms (taking into account apply the type and quality Rents toward payment of the tenant) Obligations, in such order, priority and proportions as the Beneficiary, in its discretion, shall deem proper, or to the operation, maintenance and repair of the Trust Property, and irrespective of whether the Beneficiary shall have commenced any sale or foreclosure of this Deed of Trust or shall have applied or arranged for the appointment of a receiver. The Grantor represents that as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform Deed of Trust there are no Leases affecting all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder Trust Property. The Grantor shall not, without the consent of the Beneficiary, make, or suffer to be observed made, any Leases or performedmodify or cancel any Leases, (iv) shall not collect any or accept prepayments of installments of the Rents for a period of more than one (1) month in advance or further assign the whole or any part of the Rents. Notwithstanding the foregoing, the Beneficiary will not unreasonably withhold its consent to the Grantor making a new Lease or renewing an existing Lease provided that (except security deposits i) no Event of Default has occurred hereunder and (ii) such new or renewed Lease is (a) for actual occupancy, (b) at market rents, (c) for a reputable use as reasonably determined by the Beneficiary and (d) made pursuant to documentation in form and substance satisfactory in all respects to the Beneficiary. The Grantor shall (a) fulfill or perform each and every provision of the Leases on the part of the Grantor to be fulfilled or performed, (b) promptly send copies of all notices of default which the Grantor shall send or receive under the Leases to the Beneficiary, and (c) enforce the performance or observance of the provisions thereof by the tenants thereunder. The Grantor shall from time to time, but not less frequently than once every 180 days, provide to the Beneficiary a complete and detailed leasing status report with respect to the Improvements, which leasing status report shall be in form and substance satisfactory in all respects to the Beneficiary. In addition to the rights which the Beneficiary may have herein, in the event of any default under this Deed of Trust, the Beneficiary, at its option, may require the Grantor to pay monthly in advance to the Beneficiary, or any receiver appointed to collect the Rents, the fair and reasonable rental value for the use and occupation of such part of the Premises as may be in possession of the Grantor. Upon default in any such payment, the Grantor will vacate and surrender possession of the Premises to the Beneficiary, or to such receiver, and, in default thereof, the Grantor may be evicted by summary proceedings or otherwise. Nothing contained in this Paragraph shall be construed as imposing on the Beneficiary any of the obligations of the lessor under the Leases or of a “mortgagee in possession” (or equivalent).
(b) The Grantor acknowledges and agrees that, upon recordation of this Deed of Trust, the Beneficiary's interest in the Rents shall be deemed Rents collected to be fully perfected, “xxxxxx” and enforced as to the Grantor and all third parties, including without limitation any subsequently appointed trustee in advanceany case under the Bankruptcy Code (as hereinafter defined); , without the necessity of (i) commencing an action for the sale or foreclosure of the Trust Property, (ii) furnishing notice to the Grantor or tenants under the Leases, (iii) making formal demand for the Rents, (iv) taking possession of the Premises, (v) shall not execute any other assignment obtaining the appointment of a receiver of the lessor's interest in any rents and profits of the Leases or the Rents; and Premises, (vi) shall not consent to sequestering or impounding the Rents, or (vii) taking any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lenderother affirmative action.
(c) Borrower mayFor purposes of Section 552(b) of the Bankruptcy Code, without the consent Grantor and the Beneficiary agree that this Deed of Lender, amend, modify or waive Trust shall constitute a “security agreement,” that the provisions security interest created by such security agreement extends to property of any Lease or terminate, reduce rents under, accept the Grantor acquired before the commencement of a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided case in bankruptcy and to all amounts paid as Rents and that such action (taking into account, in security interest shall extend to all Rents acquired by the case estate after the commencement of a termination, reduction case in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectionbankruptcy.
(d) Notwithstanding anything contained herein The Grantor acknowledges and agrees that all Rents shall be deemed to be “Cash Collateral” under Section 363 of the contraryBankruptcy Code in the event that the Grantor files a voluntary petition in bankruptcy or is made subject to any involuntary bankruptcy proceeding. After the filing of such petition, Borrower the Grantor may not use Cash Collateral without the consent of the Beneficiary and/or an order of any bankruptcy court pursuant to Section 363(b)(2) of the Bankruptcy Code.
(e) It is agreed and understood that the Beneficiary hereby reserves the right and shall nothave the right, at any time and from time to time, without the prior written consent or joinder of Lenderany other party, enter intoto subordinate this Deed of Trust and the liens, renew, extend, amend, modify, waive assignments and security interests created by this Deed of Trust to all or any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at Leases regardless of the Propertyrespective priority of any of such Leases and this Deed of Trust. Upon doing so, a foreclosure of the Beneficiary’s liens, assignments and security interests under this Deed of Trust shall be subject to and shall not operate to extinguish any of said Leases as to which such subordination is operative.
Appears in 1 contract
Samples: Deed of Trust (Smith & Wollensky Restaurant Group Inc)
Leases and Rents. (a) Borrower may enter into Grantor does hereby absolutely and unconditionally assign to Secured Party and grants a proposed security interest unto Secured Party in all of Grantor’s right, title and interest in all current and future Leases and Rents, it being intended by Grantor that this assignment constitutes a present, absolute assignment, and not an assignment for additional security only. Such assignment shall not be construed to bind Secured Party to the performance of any of the covenants or provisions contained in any Lease or otherwise impose any obligation upon Secured Party. Nevertheless, subject to the terms of this paragraph, Secured Party grants to Grantor a revocable license to operate and manage the Mortgaged Property and to collect, retain and use the Rents subject to the requirements of the Loan Agreement (including the renewal or extension deposit of Rents into the HOFV Accounts). Upon the occurrence and during the continuance of an existing Lease (a "Renewal Lease")) Event of Default, without the prior written consent need for notice or demand, the license granted to Grantor herein shall automatically be revoked, and Secured Party shall immediately be entitled to possession of Lender, provided such proposed Lease all Rents in (or Renewal Lease (i) provides for rental rates and required by the terms comparable to existing local market rates and terms (taking into account the type and quality of the tenantLoan Documents to be deposited in) as the HOFV Accounts or any other deposit account and all Rents collected thereafter (including Rents past due and unpaid), whether or not Secured Party enters upon or takes control of the date such Lease is executed by Borrower (unlessMortgaged Property. Grantor hereby grants and assigns to Secured Party the right, in the case of a Renewal Leaseat its option, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value upon revocation of the license granted herein, to enter upon the Mortgaged Property taken as a wholein person, (iv) is subject and subordinate by agent or by court-appointed receiver to collect the Security Instrument Rents. Any Rents collected after an Event of Default and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form revocation of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall such license may be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all applied toward payment of the conditions of this SubsectionDebt in such priority and proportions as Secured Party in its sole discretion shall deem proper.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and Grantor shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon requestenter into, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lendermodify, amend, modify cancel, terminate or waive the provisions of renew any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) except as provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%Section 6.03(b) of the total rentable square feet at the PropertyLoan Agreement.
Appears in 1 contract
Samples: Term Loan Agreement (GPAQ Acquisition Holdings, Inc.)
Leases and Rents. (a) Borrower does hereby absolutely and unconditionally assigns to Lender, all Borrower's right, title and interest in all current and future Leases and Rents, it being intended by Borrower that this assignment constitutes a present, absolute assignment and not an assignment for additional security only. Such assignment to Lender shall not be construed to bind Lender to the performance of any of the covenants, conditions or provisions contained in any such Lease or otherwise impose any obligation upon Lender. Borrower agrees to execute and deliver to Lender such additional instruments, in form and substance satisfactory to Lender, as may enter into hereafter be requested by Lender to further evidence and confirm such assignment. Nevertheless, subject to the terms of this paragraph, Lender grants to Borrower a proposed Lease (including revocable license to operate and manage the renewal Trust Property and to collect the Rents. Borrower shall hold the Rents, or extension a portion thereof, sufficient to discharge all current sums due on the Debt, in trust for the benefit of Lender for use in the payment of such sums. Upon the occurrence of an existing Event of Default and prior to the acceptance of a cure thereof by Lender, without the need for notice or demand, the license granted to Borrower herein shall automatically be revoked, and Lender shall immediately be entitled to possession of all Rents, whether or not Lender enters upon or takes control of the Trust Property. Upon the acceptance by Lender of a cure of any Event of Default, Lender shall reinstate the license granted to Borrower herein. Lender is hereby granted and assigned by Borrower the right, at its option, upon revocation of the license granted herein, to enter upon the Trust Property in person, by agent or by court-appointed receiver to collect the Rents. Any Rents collected after the revocation of the license may be applied toward payment of the Debt in such priority and proportions as Lender in its sole discretion shall deem proper.
(b) All Leases shall be subordinate to this Deed of Trust and the tenant thereunder shall agree to attorn to Lender either pursuant to the Lease or a subordination, nondisturbance and attornment agreement executed by such tenant and Lender. None of the Leases shall contain any option to purchase, any right of first refusal to purchase or any right to terminate the lease term (except for termination rights (i) set forth in Leases executed prior to, or on, the date hereof or (ii) arising from a "Renewal Lease"taking or the destruction of all or substantially all of the Trust Property or all or substantially all of a tenant's demised premises)) . Leases executed after the date hereof shall not contain any provisions which adversely affect the Trust Property or which might adversely affect the rights of any holder of the Loans without the prior written consent of Lender. Each tenant shall conduct business only in that portion of the Trust Property covered by its lease. Upon request, provided such proposed Lease Borrower shall furnish Lender with executed copies of all Leases.
(c) Borrower shall not, without the prior consent of Lender, which consent shall not be unreasonably withheld or Renewal Lease conditioned (i) provides for rental rates and terms comparable to existing local market rates and terms (taking enter into account the type and quality any Lease of all or any part of the tenant) as Trust Property in excess of the date such Lease is executed by Borrower 27,013 rentable square feet (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease"MAJOR LEASE"), (ii) cancel, terminate (other than as a result of a tenant default thereunder), abridge or otherwise modify the terms of any Major Lease unless such action is an arms-length transaction with required by the terms thereof, or accept a bona fide, independent third party tenantsurrender thereof, (iii) does consent to any assignment of or subletting under any Major Lease not have a materially adverse effect on the value of the Property taken as a wholein accordance with its terms, (iv) is subject and subordinate to cancel, terminate, abridge or otherwise modify any guaranty of any Major Lease or the Security Instrument and the lessee thereunder agrees to attorn to Lenderterms thereof, and (v) is written on accept prepayments of installments of Rents for a period of more than one (1) month in advance (other than estimated payments of reimbursable expenses paid by tenants pursuant to their Leases) or (vi) further assign the standard form whole or any part of lease approved by Lenderthe Leases or the Rents. All proposed Leases which do not satisfy the requirements set forth in If Lender fails to respond to a request for consent under this Subsection 3.8(aparagraph 8(c) within ten (10) Business Days of receipt thereof, such consent shall be subject deemed granted, provided that such request shall have been accompanied by all information requested by Lender or reasonably necessary for Lender to evaluate such request and shall have clearly stated, in 14 point type or greater, that if Lender fails to respond to such request within ten (10) Business Days, Lender's consent shall be deemed to have been granted. In the prior approval of event that Lender and its counselrefuses to grant any such consent, at Borrower's expenseLender shall specify in writing the reasons for such refusal. In addition, Borrower shall promptly deliver to Lender copies of not (A) lease all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all or any part of the conditions Trust Property, (B) cancel, terminate (other than as a result of this Subsectiona tenant default thereunder), abridge or otherwise modify the terms of any Lease, or accept a surrender thereof, (C) consent to any assignment of or subletting under any Lease not in accordance with its terms or (D) cancel, terminate, abridge or otherwise modify any guaranty of any Lease or the terms thereof, unless such actions are exercised for a commercially reasonable purpose in arms-length transactions for market rate terms.
(bd) Borrower (i) shall observe and perform all the material obligations imposed upon the lessor lessor, grantor or licensor, as applicable, under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee, grantee or licensee, as applicable, thereunder to be observed or performed, short of termination thereof (unless by reason of default thereunder); (iv) shall not collect any of the Rents (other than estimated payments of reimbursable expenses paid by tenants pursuant to their Leases) more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall, upon request of Lender, request and use commercially reasonable efforts to obtain and deliver to Lender tenant estoppel certificates from each commercial tenant at the Trust Property in form and substance reasonably satisfactory to Lender, provided that Borrower shall not consent be required to deliver such certificates more frequently than two (2) times in any assignment calendar year; and (vii) shall execute and deliver at the request of or subletting under any Leases not Lender all such further assurances, confirmations and assignments in accordance connection with their terms, without the prior written consent of LenderTrust Property as Lender shall from time to time reasonably require.
(ce) All security deposits of tenants, whether held in cash or any other form, shall not be commingled with any other funds of Borrower mayand, without the consent of Lenderif cash, amend, modify shall be deposited by Borrower at such commercial or waive the provisions of any Lease savings bank or terminate, reduce rents under, accept a surrender of space underbanks, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise held in compliance with applicable law, as may be reasonably satisfactory to Lender. Any bond or other instrument which Borrower is permitted to hold in lieu of cash security deposits under any applicable legal requirements shall be maintained in full force and effect in the full amount of such deposits unless replaced by cash deposits as hereinabove described, shall (if issued after the date hereof) be fully assignable to Lender and shall, in all respects, comply with any applicable legal requirements and otherwise be reasonably satisfactory to Lender. Borrower shall, upon request, provide Lender with evidence reasonably satisfactory to Lender of this Security Instrument Borrower's compliance with the foregoing. Following the occurrence and during the continuance of any Event of Default, Borrower shall, upon Lender's request, if permitted by any applicable legal requirements, rum over to Lender the security deposits (and any subordinate agreement binding upon Lender interest theretofore earned thereon) with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value all or any portion of the Property taken as a whole. Any amendmentTrust Property, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall to be held by Lender subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all terms of the conditions of this SubsectionLeases.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 1 contract
Leases and Rents. (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Unless otherwise consented to in writing by Lender, provided such proposed Lease or Renewal Lease all Leases and all renewals of Leases executed after the date hereof shall (i) provides provide for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease)similar properties, (ii) is an arms-length transaction be with a bona fideunaffiliated, independent third party tenantparties on terms and conditions (including, without limitation, terms and conditions relating to free rent, tenant improvements and other allowances) which are, in each case, commercially reasonable and comparable to existing local market terms and conditions for similar properties, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) provide that such Lease is subject and subordinate to the Security Instrument and that the lessee thereunder will attorn to Mortgage Lender and any purchaser at a foreclosure sale (so long as Mortgage Lender or such purchaser agrees to attorn to Lender, recognize the Tenant) and (viv) is written not contain any terms which would have an Individual Material Adverse Effect on the standard form of lease approved by Lenderany Individual Property or Collateral or an Aggregate Material Adverse Effect. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counselExcept as provided below, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
not (b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Mortgage Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advanceto); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, (which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender), enter into, renew, extend, amend, modify, permit any assignment of or subletting under, waive any provisions of, release any party to, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, in each case, any Major Lease. The term "Major Lease" Notwithstanding anything to the contrary set forth herein, Lxxxxx’s consent shall mean any Lease between Borrower as landlord and a third party as tenant demising not be required in the aggregate more than the lesser of connection with (i) 15,000 rentable any Lease (or amendment, modification or termination thereof) that is not a Major Lease, (ii) any renewals, expansions causing the demised premises not to exceed four hundred thousand (400,000) square feet or extensions of any Lease (including a Major Lease) by any Tenant that is a party to such Lease as of the Closing Date so long as the rental terms pursuant to such Lease are on market rental terms, provided that any expansion with respect to a Major Lease that grants the applicable Tenant any termination right in the event such expansion work is not completed shall require Lender’s consent, (iii) immaterial modifications that do not (I) change the economic terms and/or accelerate the expiration date of a Major Lease (including, without limitation, the terms and conditions of any purchase options, rights of first refusal and/or rights of first offer to purchase the applicable Individual Property set forth therein and the material economic terms and conditions of any renewal, expansion or extension thereof), (II) materially reduce the obligations of the Tenant under a Major Lease and/or (III) materially increase the obligations of Mortgage Borrower under a Major Lease or (iv) termination by the applicable Tenant of any Major Lease based upon an express termination right contained in such Major Lease. All Leases executed after the Closing Date shall provide that they are subordinate to the Security Instrument encumbering the applicable Individual Property and that the Tenant agrees to attorn to Mortgage Lender or any purchaser at a sale by foreclosure or power of sale (so long as Mortgage Lender or such purchaser agrees to recognize the Tenant).
(b) Without limitation of subsection (a) above, Borrower (i) shall observe and perform (or cause Mortgage Borrower to observe and perform) the obligations imposed upon the lessor under the Leases (including without limitation all obligations related to Unfunded Obligations) in a commercially reasonable manner; (ii) fifteen percent shall enforce (15%or cause Mortgage Borrower to enforce) the terms, covenants and conditions contained in the Leases upon the part of the total rentable square feet lessee thereunder to be observed or performed in a commercially reasonable manner; (iii) shall not collect (or permit Mortgage Borrower to collect) any of the Rents more than one (1) month in advance (other than Security Deposits); (iv) shall not execute (or permit Mortgage Borrower to execute) any assignment of lessor’s interest in the Leases or the Rents (except as contemplated by the Mortgage Loan Documents); (v) shall not (or permit Mortgage Borrower to), without Lxxxxx’s prior written consent, alter, modify or change any Lease to the extent the same would, individually or in the aggregate, (A) cause any such Lease to violate Section 4.14(a)(i) through (iii) above or (B) have an Individual Material Adverse Effect on any Individual Property or Collateral or an Aggregate Material Adverse Effect and (vi) shall cause Mortgage Borrower to hold all Security Deposits in accordance with Legal Requirements. Upon request, Borrower shall furnish (or shall cause Mortgage Borrower to furnish) Lender with executed copies of all Leases (to the extent not previously delivered to Lender unless Lender notifies Borrower it is unable to locate such executed copies).
(c) Notwithstanding anything contained herein to the contrary, Borrower shall not (and shall not cause Mortgage Borrower to) willfully withhold from Lender any information regarding renewal, extension, amendment, modification, waiver of provisions of, termination, rental reduction of, surrender of space of, or shortening of the term of, any Lease during the term of the Loan. Borrower agrees to provide (or cause Mortgage Borrower to provide) Lender with written notice of any material event of default under a Major Lease within ten (10) Business Days after Borrower’s or Mortgage Borrower’s actual knowledge of the occurrence of any such event of default. Borrower’s failure to provide (or failure to cause Mortgage Borrower to provide) any of the aforesaid notices shall, at Lender’s option, constitute an Event of Default.
(d) Borrower shall notify (or cause Mortgage Borrower to notify) Lender in writing, within ten (10) Business Days following receipt thereof, of Borrower’s or Mortgage Borrower’s receipt of any early termination fee or payment or other termination fee or payment paid by any Tenant under any Lease, Borrower shall cause Mortgage Borrower to deposit all termination fees in accordance with the PropertyMortgage Loan Agreement.
(e) Upon the occurrence and during the continuance of an Event of Default or a Mortgage Loan Event of Default, Borrower shall, within thirty (30) days of demand by Lender, cause Mortgage Borrower to deliver to Mortgage Lender all Security Deposits to be held in accordance with the Mortgage Loan Agreement. Without limitation of any other term or provision contained herein, for purposes of clarification, for a Security Deposit to be deemed “delivered to Lender” in connection with the foregoing, the same must be in the form of cash or in a letter of credit solely in Mortgage Lender’s name.
(f) To the extent that the Deemed Approval Requirements are satisfied in connection with any Borrower request for Lender consent under this Section and Lxxxxx thereafter fails to respond, Lxxxxx’s approval shall be deemed given with respect to the matter for which approval was requested.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Industrial Logistics Properties Trust)
Leases and Rents. (a) Borrower may enter into a proposed Lease For Ten Dollars ($10.00) and other good and valuable consideration, including the renewal or extension indebtedness evidenced by the Note, the receipt and sufficiency of an existing Lease (which are hereby acknowledged and confessed, Mortgagor has absolutely GRANTED, BARGAINED, SOLD, and CONVEYED, and by these presents does absolutely and unconditionally GRANT, BARGAIN, SELL, and CONVEY the Rents unto Mortgagee, in order to provide a "Renewal Lease")) without the prior written consent source of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality future payment of the tenant) Debt subject only to the Pee 'flitted Exceptions applicable thereto and the License (herein defined), it being the intention of Mortgagor and Mortgagee that this conveyance be presently and immediately effective; TO HAVE AND TO HOLD the Rents unto Mortgagee, forever, and Mortgagor does hereby bind itself, its successors, and assigns to warrant and forever defend the title to the Rents unto Mortgagee against every person whomsoever lawfully claiming or to claim the same or any part thereof; provided, however, that if Mortgagor shall pay or cause to be paid the Debt as of and when the same shall become due and payable and shall perfoini and discharge or cause to be perfamied and discharged the Obligations on or before the date such Lease is executed by Borrower (unlessthe same are to be perfoimed and discharged, in the case then this assignment shall terminate and be of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject no further force and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lendereffect, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender all rights, titles, and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into interests conveyed pursuant to this Subsection together with Borrower's certification that it has satisfied all assignment of rents shall become vested in Mortgagor without the conditions necessity of this Subsectionany further act or requirement by Mortgagor or Mortgagee.
(b) Borrower Mortgagee hereby grants to Mortgagor a limited license (the "License") subject to teicuination of the License and the other applicable terms and provisions of Paragraph 25 hereof, to exercise and enjoy all incidences of the status of a lessor with respect to the Rents, including without limitation, the right to collect, demand, sxx for, attach, levy, recover, and receive the Rents, and to give proper receipts, releases, and acquittances therefor. Whenever an Event of Default exists, Mortgagor hereby agrees to receive all Rents and hold the same to be applied, and to apply the Rents so collected, first to the payment of the Debt, next to the performance and discharge of the Obligations, and next to the payment of all expenses associated with the ownership and operation of the Mortgaged Property; at any other time, Mortgagor may use the Rents collected in any lawful manner, subject to Sections 13(vi) and (vii) of the Note. Neither this assignment nor the receipt of Rents by Mortgagee shall effect a tanto payment of any portion of the Debt, and such Rents shall be applied as provided in this Paragraph 7. Furtheimore, and notwithstanding the provisions of this Paragraph 7, no credit shall be given by Mortgagee for any Rents until such Rents are actually received by Mortgagee, and no such credit shall be given for any Rents after foreclosure or transfer in lieu of foreclosure of the Mortgaged Property (or part thereof from which Rents are derived pursuant to this Mortgage) to Mortgagee or any other third party.
(c) Upon receipt from Mortgagee of a Lease Rent Notice (as defined in Paragraph 25 hereof), each lessee under the Leases is hereby authorized and directed to pay directly to Mortgagee all Rents thereafter accruing, and the receipt of Rents by Mortgagee shall be a release of such lessee to the extent of all amounts so paid. The receipt by a lessee under the Leases of a Lease Rent Notice shall be sufficient authorization for such lessee to make all future payments of Rents directly to Mortgagee and each such lessee shall be entitled to rely on such Lease Rent Notice and shall have no liability to Mortgagor for any Rents paid to Mortgagee after receipt of such Lease Rent Notice. Rents so received by Mortgagee for any period prior to foreclosure under this Mortgage or acceptance of a deed in lieu of such foreclosure shall be applied by Mortgagee to the payment of the following in such order and priority as Mortgagee shall detei mine: (i) shall observe the Debt and perform all expenses incident to taking and retaining possession of the obligations imposed Mortgaged Property and/or collecting Rent as it becomes due and payable and (ii) all expenses associated with the ownership and operation of the Premises and Improvements. In no event will this Paragraph 7 reduce the Debt except to the extent, if any, that Rents are actually received by Mortgagee and applied upon or after said receipt to the lessor Debt in accordance with the preceding sentence. Without impairing its rights hereunder, Mortgagee may, at its option, at any time and from time to time, release to Mortgagor Rents so received by Mortgagee or any part thereof. As between Mortgagor and Mortgagee, and any person claiming through or under Mortgagor, other than any lessee under the Leases who has not received a Lease Rent Notice, this assignment of Rents is intended to be absolute, unconditional and presently effective (and not an assignment for additional security), and the Lease Rent Notice hereof is intended solely for the benefit of each such lessee and shall never inure to the benefit of Mortgagor or any person claiming through or under Mortgagor, other than a lessee who has not do received such notice. Other than as required by applicable law, it shall never be necessary for Mortgagee to institute legal proceedings of any kind whatsoever to enforce the provisions of this Mortgage with respect to Rents. MORTGAGOR SHALL HAVE NO RIGHT OR CLAIM AGAINST ANY LESSEE FOR THE PAYMENT OF ANY RENTS TO MORTGAGEE HEREUNDER.
(d) At any time during which the License is terminated or permit revoked, Mortgagee shall have the right (but shall be under no duty) to demand, collect and sxx for, in its own name or in the name of Mortgagor, all Rents that are more than thirty (30) days past due and unpaid.
(e) To the extent required by applicable law, security deposits, advance deposits and any other deposits of tenants, whether held in cash or any other form, shall not be commingled with any other funds of Mortgagor. All security deposits, advance deposits and other deposits of tenants, if any, held in cash shall be deposited by Mortgagor at such commercial or savings bank or banks as may be reasonably satisfactory to Mortgagee. Mortgagor shall exercise all commercially reasonable efforts to assure against a successful claim by a tenant that its payment of such a deposit was a payment of rental income and not a security deposit. Mortgagor also agrees to maintain books and records of sufficient detail to identify all such security deposits separate and apart from any other payments received from tenants. Any bond or other instrument which Mortgagor is permitted to hold in lieu of cash security deposits under any applicable legal requirements shall be maintained in full force and effect in the full amount of such deposits unless replaced by cash deposits as hereinabove described, shall be issued by an institution reasonably satisfactory to Mortgagee, shall, if permitted pursuant to any legal requirements, name Mortgagee as payee or beneficiary thereunder (or at Mortgagee's option, be fully assignable to Mortgagee) and shall, in all respects, comply with any applicable legal requirements and otherwise be reasonably satisfactory to Mortgagee. Mortgagor shall, upon request, provide Mortgagee with evidence reasonably satisfactory to Mortgagee of Mortgagor's compliance with the foregoing. Whenever an Event of Default exists, Mortgagor shall, upon Mortgagee's request, if permitted by any applicable legal requirements, turn over to Mortgagee the security deposits (and any interest theretofore earned thereon) with respect to all or any portion of the Mortgaged Property, to be done anything held by Mortgagee subject to impair the value of any terms of the Leases Leases.
(f) Mortgagor covenants and agrees (i) to perform punctually all material obligations and agreements to be performed by it as security for lessor or party thereto under the DebtAurora Lease; (ii) upon request, shall promptly send copies to Lender do all things (other than terminating the Aurora Lease) necessary or appropriate in the ordinary course of all notices its business to compel performance by Aurora of default which Borrower shall send or receive Aurora's material obligations and agreements thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder not to be observed or performed, (iv) shall not collect any of the Rents due under the Aurora Lease more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (viv) shall not to execute any other assignment of the lessor's interest in any of the Leases Aurora Lease or the Rents; and (viv) shall not consent to permit any subletting of any space covered by Aurora Lease or an assignment of or subletting the tenant's rights under any Leases not Aurora Lease only in accordance with their termsthe terms of the Aurora Lease. Except as otherwise permitted hereunder or required by the Aurora Lease, without Mortgagor covenants and agrees not to give any notice, approval or consent, or exercise any rights under or in respect of the Aurora Lease, which action, omission, notice, approval, consent or exercise of rights would release Aurora from the Aurora Lease, or reduce any of Aurora's obligations or liabilities under the Aurora Lease, or would result in the termination, surrender or assignment of the Aurora Lease, or would amend or modify the Aurora Lease in any material adverse respect, or would impair the validity of the Aurora Lease, in each case if any of the foregoing would result in a Material Adverse Effect, unless Mortgagor has received the prior written consent of LenderMortgagee, which consent will not be unreasonably withheld, delayed, or conditioned, and any attempt to do any of the foregoing without such consent shall be of no force and effect; provided, however, in the exercise of any of its remedies under the Aurora Lease following Aurora's default thereunder, Mortgagor may release or discharge Aurora from material obligations and/or dispossess such tenant from the space covered by the Aurora Lease; and provided further that nothing in this Paragraph 7 shall prohibit Mortgagor from accepting Aurora's election under the Aurora Lease of a right to extend its tend.' as is expressly provided for in the Aurora Lease as of the date hereof
(g) Mortgagor will promptly deliver to Mortgagee a copy of any written notice from Aurora claiming that Mortgagor is in default in the perfonuance or observance of any of the terms, covenants or conditions of the Aurora Lease to be perfoimed or observed by Mortgagor.
(ch) Borrower mayMortgagor shall not enter into any Lease after the date hereof covering any portion of the Mortgaged Property without Mortgagee's prior written consent, without which consent will not be unreasonably withheld, delayed, or conditioned.
(i) If the terms of this Mortgage require Mortgagor to obtain Mortgagee's prior consent for any new Lease or for a modification or an amendment of Lender, amend, modify the Aurora Lease or waive the provisions of any other Lease (each sometimes referred to as a "Lease Modification"), the same must be submitted to Mortgagee for its review and approval, such approval not to be unreasonably withheld, delayed or conditioned. Mortgagee may disapprove a new Lease because, among other reasons, it reasonably determines (based upon its own review and investigation) that the proposed tenant is not sufficiently creditworthy in light of the obligations to be undertaken by such tenant under the Lease. Mortgagee shall have ten (10) business days after its receipt of a new Lease or terminateLease Modification to approve or disapprove the same or to request additional infonnation or materials in connection with its review (the "Additional Due Diligence Material"). If Mortgagee disapproves a Lease or Lease Modification, reduce rents underMortgagee shall provide Mortgagor with a written explanation of the reasons for disapproval. A Lease or Lease Modification will be deemed approved if Mortgagee has not approved or disapproved the same within ten (10) business days of its receipt of such Lease or Lease Modification, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action Lease or Lease Modification is accompanied by a separate notice addressed to Mortgagee containing the following statement printed in bold font and all uppercase letters: "REQUEST FOR LEASE APPROVAL: IF LENDER DOES NOT APPROVE OR DISAPPROVE THE MATTER DESCRIBED IN THIS PACKAGE WITHIN TEN (taking into account10) BUSINESS DAYS OF ITS RECEIPT, in SUCH MATTER SHALL BE DEEMED APPROVED." If Mortgagee requests Additional Due Diligence Material within the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender time period referred to above with respect to a particular Lease or Lease Modification, then that Lease or Lease Modification will be deemed approved if Mortgagee has not approved or disapproved the same within seven (7) business days of its receipt of such Lease. A termination of a Lease with a tenant who Additional Due Diligence Material, provided that the Additional Due Diligence Material is in default beyond applicable accompanied by the notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising described in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Propertyimmediately preceding sentence.
Appears in 1 contract
Samples: Mortgage (American Realty Capital Healthcare Trust Inc)
Leases and Rents. Except in the ordinary course of Grantor's business (which shall generally include current market conditions at such location when such events occur), Grantor shall (a) Borrower may enter into a with respect to any proposed Real Estate Lease, not execute any Real Estate Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Beneficiary (and which Real Estate Lease shall be only for the occupancy by the tenant thereunder); (b) not discount any rent payable under any Real Estate Lease or Renewal modify or vary, surrender or terminate, either orally or in writing, any Real Estate Lease (i) provides for rental rates and resulting in terms comparable less favorable to Grantor than those existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such hereof; (c) not cancel any Real Estate Lease is executed by Borrower affecting the Mortgaged Property or any part thereof; (unlessd) not voluntarily terminate, in cancel, waive, modify or amend its rights or the case obligations of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third any party tenant, (iii) does not have a materially adverse effect on the value under any of the Property taken as a whole, Real Estate Leases or (ive) is subject use all reasonable efforts to maintain each of the Real Estate Leases in full force and subordinate effect during the full term hereof. With respect to the Security Instrument and the lessee thereunder agrees to attorn to LenderReal Estate Leases, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) Grantor shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any rent payable for a period of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advancethat Grantor may collect the first month's rent at one time prior to the lease commencement date); (vii) shall not execute further assign its interest in, to or under any other assignment Real Estate Lease or the rents payable under any Real Estate Lease and from the Mortgaged Property to any person or entity; (iii) duly and punctually perform and comply with any and all representations, warranties, covenants and agreements expressed as binding upon it under each of the lessor's interest Real Estate Leases; and (iv) appear and/or defend any action or proceeding involving Grantor arising under or in any manner connected with any of the Real Estate Leases. Grantor has executed and delivered to Beneficiary an Assignment of Leases or the Rents; and (vi) shall not consent to any assignment Rents of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender even date herewith granting Beneficiary certain rights with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value Mortgaged Property including, without limiting the generality of the Property taken as a whole. Any amendmentforegoing, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject right to collect Rents directly from the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of tenants under the conditions of this SubsectionReal Estate Leases.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 1 contract
Samples: Future Advance Deed of Trust (Kv Pharmaceutical Co /De/)
Leases and Rents. Subject to the terms of this paragraph, Mortgagee waives the right to enter the Mortgaged Property for the purpose of collecting the Rents, and grants Mortgagor the right to collect the Rents. Mortgagor shall collect and hold the Rents, or an amount sufficient to discharge all current sums due on the Debt, in trust for use in payment of the Debt. The right of Mortgagor to collect the Rents may be revoked by Mortgagee upon the occurrence of any Event of Default by giving notice of such revocation to Mortgagor. Following such notice and as long as such Event of Default is continuing (a) Borrower may enter into a proposed Lease (including it being understood that the renewal decision whether or extension not to accept the cure of an existing Lease (a "Renewal Lease"Event of Default shall be in the sole and absolute discretion of Mortgagee)) without , Mortgagee may retain and apply the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality Rents toward payment of the tenant) Debt in such order, priority and proportions as Mortgagee, in its discretion, shall deem proper, or to the operation, maintenance and repair of the date such Lease is executed by Borrower (unlessMortgaged Property, in and irrespective of whether Mortgagee shall have -3- 108 commenced a foreclosure of this Mortgage or shall have applied or arranged for the case appointment of a Renewal Leasereceiver. In addition, Mortgagee shall have the rent payable absolute and unconditional right following the occurrence and during such renewal, or a formula or other method the continuance of an Event of Default to compute such rent, is provided for in notify the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor tenants under the Leases that all Rents should be paid directly to Mortgagee. In addition to the rights which Mortgagee may have herein, if an Event of Default shall occur and shall not do be continuing Mortgagee, at its option, may require Mortgagor to pay monthly in advance to Mortgagee, or permit any receiver appointed to collect the Rents, the fair and reasonable rental value for the use and occupation of such part of the Mortgaged Property as may be done anything in possession of Mortgagor. Upon default in any such payment, Mortgagor will vacate and surrender possession of the Mortgaged Property to impair the value of Mortgagee, or to such receiver and, in default thereof, Mortgagor may be evicted by summary proceedings or otherwise. Nothing contained in this paragraph shall be construed as imposing on Mortgagee any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all obligations of the material terms, covenants and conditions contained in landlord under the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of LenderLeases.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 1 contract
Leases and Rents. (a) In connection with the Loan, Borrower has absolutely and unconditionally assigned to Lender all of Borrower's right, title and interest in all current and future Leases and Rents, it being intended by Borrower that such assignment constitutes a present, absolute assignment and not an assignment for additional security only. Such assignment to Lender shall not be construed to bind Lender to the performance of any of the covenants, conditions or provisions contained in any such Lease or otherwise to impose any obligation upon Lender. Borrower shall execute and deliver to Lender such additional instruments, in form and substance reasonably satisfactory to Lender, as may enter into hereafter be requested by Lender to further evidence and confirm such assignment. Nevertheless, subject to the terms of this Section, Lender has granted to Borrower a proposed Lease (including revocable license to operate and manage the renewal Mortgaged Property and to collect the Rents. Borrower shall hold the Rents, or extension a portion thereof sufficient to discharge all current sums due on the Debt, in trust for the benefit of Lender for use in the payment of such sums. Upon the occurrence of an existing Lease Event of Default, the license granted to Borrower shall automatically be revoked, and Lender shall immediately be entitled to possession of all Rents, whether or not Lender enters upon or takes control of the Mortgaged Property. Lender is hereby granted and assigned by Borrower the right, at its option, upon revocation of the license granted herein, to enter upon the Mortgaged Property in person, by agent or by court-appointed receiver to collect the Rents. Any Rents collected after revocation of the license may be applied toward payment of the Debt in such priority and proportions as Lender in its discretion shall deem appropriate.
(a "Renewal Lease")b) without Borrower shall furnish Lender with executed copies of all Leases for space in excess of 1,000 square feet at any hotel comprising the prior written consent Mortgaged Property. All renewals of Lender, provided such Leases and all proposed Lease or Renewal Lease (i) provides Leases shall provide for rental rates and terms comparable to existing local market rates and terms shall be arms-length transactions. All proposed Leases shall be subject to the prior approval of Lender except that proposed Leases which: (taking into account the type and quality of the tenanti) as of the date such Lease is executed by Borrower (unless, are for less than 1,000 square feet in the case of a Renewal Lease, aggregate at each hotel comprising the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), Mortgaged Property; (ii) is are the result of an arms-length transaction with a bona fide, independent third party tenant, third-party; (iii) does not have a materially adverse effect on the value of the Property taken as a whole, provide for rental rates comparable to existing market rates; and (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy contain any terms which would materially affect Lender's rights under the requirements set forth in Note, the Mortgage, this Subsection 3.8(a) Agreement, the Assignment, the Environmental Agreement or the other Loan Documents, shall not be subject to the prior approval of Lender Lender. All Leases shall provide that they are subordinate to the Mortgage and its counsel, at Borrower's expensethat the lessee agrees to attorn to Lender. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
shall: (bA) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (iiB) upon request, shall promptly send copies to Lender copies of all notices of default which Borrower shall send or receive thereunder; (iiiC) shall enforce all of the material terms, covenants and conditions contained in the Leases upon Lease on the part of the tenant lessee thereunder to be observed or performed, short of termination thereof; (ivD) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (vE) shall not execute any other assignment of the lessor's interest in the Leases or Rents; (F) other than de minimis non-financial amendments, not alter, modify or change the terms of the Leases without the prior written consent of Lender (which consent shall not be unreasonably withheld), or, except if a lessee is in default, cancel or terminate the Leases or accept a surrender thereof or convey or transfer or suffer or permit a conveyance or transfer of the Mortgaged Property or of any interest therein so as to effect a merger of the estates and rights of, or a termination or diminution of the obligations of, lessees thereunder; provided, however, that any Lease may be cancelled if at the time of the cancellation thereof a new Lease is entered into with a bona fide, independent third-party on substantially the same terms or more favorable terms as the cancelled Lease; (G) not alter, modify or change the terms of any guaranty of the Leases or cancel or terminate such guaranty without the Rents; and prior written consent of Lender, (viH) shall not consent to any assignment of or subletting under any the Leases not in accordance with their terms, without the prior written consent of Lender; and (I) execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Mortgaged Property as Lender shall from time to time request. Notwithstanding anything to the contrary contained in subsection (b) of this Section, the provisions of clauses (B), (C), (F), (G) and (H) of this subsection (b) shall not apply to any Lease the rentable square footage of which is for less than 1,000 square feet.
(c) All security deposits of lessees in excess $5,000.00, whether held in cash or any other form, shall not be commingled with any other funds of Borrower mayand, without the consent if cash, shall be deposited by Borrower at such commercial or savings bank or banks as may be reasonably satisfactory to Lender. Any bond or other instrument which Borrower is permitted to hold in lieu of cash security deposits under any applicable legal requirements shall be maintained in full force and effect unless replaced by cash deposits as hereinabove described, shall be issued by an institution reasonably satisfactory to Lender, amendshall, modify if permitted pursuant to any legal requirements, name Lender as payee or waive the provisions of any Lease mortgagee thereunder (or terminateat Lender's option, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect theretobe fully assignable to Lender) provided that such action (taking into accountand shall, in the case all respects, comply with any applicable legal requirements and otherwise be reasonably satisfactory to Lender. Borrower shall, upon request, provide Lender with evidence reasonably satisfactory to Lender of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in Borrower's compliance with the requirements foregoing. Following the occurrence and during the continuance of this Security Instrument any Event of Default, Borrower shall, upon Lender's request, if permitted by any applicable legal requirements, turn over to Lender the security deposits (and any subordinate agreement binding upon Lender interest theretofore earned thereon) with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value all or any portion of the Property taken as a whole. Any amendmentMortgaged Property, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall to be held by Lender subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all terms of the conditions of this SubsectionLeases.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 1 contract
Leases and Rents. (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable Upon the occurrence of any Event of Default, Borrower's revocable license to existing local market rates and terms (taking into account collect the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements Rents set forth in this Subsection 3.8(aSection 5 shall immediately cease and terminate. Upon or at any time during the continuance of an Event of Default, including but not limited to failure of the Borrower to pay any of the items set forth in subparagraphs 9.2(i)(iii)(A)-(E) shall below, or if any material representation or warranty herein proves to be subject untrue, then the Lender, without regard to waste, adequacy of the security or solvency of the Borrower, may declare all Obligations (as defined in the Loan Agreement) immediately due and payable and may, at its option, without notice:
(A) In person or by agent, with or without taking possession of or entering the Property, with or without bringing any action or proceeding, give, or require the Borrower to give, notice to the prior approval of Lender tenants under the Leases authorizing and its counsel, at Borrower's expense. Borrower shall promptly deliver directing the tenants to Lender copies of pay all Leases which are entered into pursuant Rents directly to this Subsection together with Borrower's certification that it has satisfied the Lender; collect all of the conditions Rents; enforce the payment thereof and exercise all of this Subsection.
(b) the rights of the Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and all of the rights of the Lender hereunder; and may enter upon, take possession of, manage and operate the Property, or any part thereof; may cancel, enforce or modify the Leases, and fix or modify Rents, and do any acts which the Lender deems proper to protect the security hereof; and/or
(B) Apply for appointment of a receiver in accordance with the statutes and law made and provided for, which Receivership hereby consents to, who shall not do collect the Rents; manage the Property so to prevent waste; execute Leases within or permit to be done anything to impair beyond the value period of receivership; perform the terms of this Mortgage and apply the Rents as hereinafter provided.
(ii) The exercise of any of the Leases as security for foregoing rights or remedies and the Debt; (ii) upon requestapplication of the Rents pursuant to this Section, shall promptly send copies not cure or waive any Event of Default (or notice of default) or invalidate any act done pursuant to such notice nor in any way operate to prevent the Lender from pursuing any remedy which now or hereafter it may have under the terms and conditions of the Other Loan Agreement, the Other Mortgage, this Mortgage or the Other Note secured thereby or any other instruments securing the same. The rights and powers of the Lender hereunder shall remain in full force and effect both prior to and after any foreclosure of this Mortgage and any sale pursuant thereto and until expiration of the period of redemption from said sale, regardless of whether a deficiency remains from said sale. The purchaser at any foreclosure sale, including the Lender, shall have the right, at any time and without limitation as provided in Minn. Stat. Section 582.03, to advance money to any receiver appointed hereunder to pay any part or all notices of default the items which Borrower the receiver would otherwise be authorized to pay if cash were available from the Property and the sum so advanced, with interest at the rate then in effect under the terms of the Note, shall send be a part of the sum required to be paid to redeem from any foreclosure sale. The rights under this Section 9.2(i)(ii) shall in no way be dependent upon and shall apply without regard to whether the Property is in danger of being lost, materially injured or receive thereunder; damaged or whether the Property is adequate to discharge the Debt and the Obligations. To the extent inconsistent with the terms of this section 9.2(i)(ii), the terms of the Assignment of Rents and Leases shall control.
(iii) Notwithstanding anything in this Mortgage or the Other Loan Documents to the contrary, and specifically replacing contrary provisions in this Mortgage, all Rents collected by Lender or the receiver each month following the occurrence and continuance of an Event of Default shall enforce be applied as follows:
(A) to payment of all reasonable fees of the material terms, covenants and conditions contained in receiver approved by the Leases upon the part court;
(B) to payment of the all tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in then owing to tenants under any of the Leases or the Rents; and (vi) shall not consent pursuant to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease Minn. Stat. Section 504.20;
(C) to payment of all prior or terminate, reduce rents under, accept a surrender of space undercurrent real estate taxes and special assessments with respect to the Property, or shorten if this Mortgage or any other instrument relating to the term ofObligations requires periodic escrow payments for such taxes and assessments, any Lease to the escrow payments then due;
(including any guaranty, letter D) to payment of credit or other credit support all premiums then due for the insurance required with respect theretoto the Property, or if this Mortgage or any other instrument relating to the Obligations requires periodic escrow payments for such premiums, to the escrow payments then due;
(E) provided that such action (taking into account, in the case to payment of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use expenses incurred for normal maintenance of the affected spaceProperty;
(F) does not have a materially adverse effect on the value if received prior to any foreclosure sale of the Property taken pursuant to this Mortgage, to Lender for payment of the indebtedness secured hereby, but no such payment made after acceleration of the indebtedness secured hereby shall affect such acceleration; and
(G) If the Property shall be foreclosed and sold pursuant to a foreclosure sale, then:
(1) If the Lender is the purchaser at the foreclosure sale, the Rents shall be paid to the Lender to be applied to the extent of any deficiency remaining after the sale, the balance to be retained by the Lender, and if the Property be redeemed by the Borrower or any other party entitled to redeem, to be applied as a wholecredit against the redemption price with any remaining excess Rents to be paid to the Borrower, provided, if the Property not be redeemed, any remaining excess Rents to belong to the Lender, whether or not a deficiency exists; and
(2) If the Lender is not the purchaser at the foreclosure sale, the Rents shall be paid to the Lender to be applied first, to the extent of any deficiency remaining after the sale, the balance to be retained by the purchaser, and provided that such Leaseif the Property be redeemed by the Borrower or any other party entitled to redeem, to be applied as amendeda credit against the redemption price with any remaining excess Rents to be paid to the Borrower, modified or waivedprovided, is otherwise in compliance with if the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall Property not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection redeemed any remaining excess Rents shall be subject paid first, to the prior approval purchaser at the foreclosure sale in an amount equal to the interest accrued upon the sale price pursuant to Minn. Stat. Section 580.23 or Section 581.10, then to the Lender to the extent of any deficiency remaining unpaid and the remainder to the purchaser. The rights and powers of Lender and its counsel, which approval receivers under this Mortgage and the application of Rents under this Section shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all continue until expiration of the conditions of this Subsectionredemption period from any foreclosure sale, whether or not any deficiency remains after a foreclosure sale.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 1 contract
Leases and Rents. (a) Borrower may enter into All Leases and all renewals of Leases and all modifications of Leases executed after the date hereof shall (i) provide for terms and rental rates comparable to then-prevailing market rates for similar properties, (ii) provide that such Lease is subordinate to the Security Instrument and that the lessee will attorn to Lender and any purchaser at a proposed foreclosure sale, (iii) be written substantially in accordance with the standard form of Lease which shall have been approved by Lender (including subject to any commercially-reasonable changes made in the renewal course of negotiations with the applicable Tenant), or extension conform to the form of national lease used by such Tenant, (iv) not be to an existing Affiliate of Borrower, and (v) not contain any option to purchase, any right of first refusal to purchase, any right to terminate (except in the event of the destruction or condemnation of substantially all of the Property). Any Lease (a "Renewal Lease")that does not conform to the standards set forth in this Section 4.14(a) without shall be subject to the prior written consent of Lender, provided which consent shall not be unreasonably withheld. Notwithstanding anything to the contrary contained herein, all Major Leases and all renewals, amendments, modifications and terminations thereof (including, without limitation, any subletting or assignment thereunder not contemplated by the express terms of such proposed Lease Major Lease) shall be, subject to clause (f) below, subject to Administrative Agent’s prior approval, which approval shall not be unreasonably withheld or Renewal Lease (i) provides for rental rates delayed. Administrative Agent, on behalf of Lenders, shall execute and terms comparable to existing local market rates deliver a Subordination Non-Disturbance and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, Attornment Agreement in the case of a Renewal Lease, the rent payable during such renewal, form attached hereto as Exhibit I to Tenants under future Major Leases approved (or a formula or other method to compute such rent, is provided for in the original Lease), deemed approved) by Administrative Agent (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(aabove) shall promptly upon request with such commercially reasonable changes as may be subject requested by Tenants, from time to the prior approval of Lender and its counseltime, at Borrower's expense. Borrower shall promptly deliver as are reasonably acceptable to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this SubsectionAdministrative Agent.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debtin all material respects in a commercially reasonable manner; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performedperformed in a commercially reasonable manner, provided, however, Borrower shall not terminate or accept a surrender of a Major Lease without Administrative Agent’s prior approval; (iviii) shall not collect any of the Rents more than one (1) month in advance (except other than security deposits deposits); (iv) shall not be deemed execute any assignment of lessor’s interest in the Leases or the Rents collected in advance(except as contemplated by the Loan Documents); (v) shall not execute not, without Administrative Agent’s consent alter, modify or change any other assignment Lease so as to change the amount of or payment date for rent, change the expiration date, grant any option for additional space or term, materially reduce the obligations of the lessee or increase the obligations of lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting hold all security deposits under any all Leases not in accordance with their termsApplicable Law. Upon request, without the prior written consent Borrower shall furnish Administrative Agent with executed copies of Lenderall Leases not previously provided.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without have the prior written right to terminate any Lease and no consent of LenderAdministrative Agent shall be required in respect of such termination, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of provided that (i) 15,000 rentable square feet Borrower is simultaneously replacing such terminated Lease with one or more Leases (for not less than all or substantially all of the space which was covered by the Lease being terminated) that either (x) has been approved or deemed approved by Administrative Agent if required in accordance with this Section 4.14 or (y) otherwise meets the requirements of this Section 4.14, or (ii) fifteen percent the applicable Tenant is in default thereunder beyond any applicable notice and grace periods.
(15%d) Borrower agrees to provide Administrative Agent with written notice of a Tenant “going dark” under such Tenant’s Lease within five (5) Business Days after Borrower becomes aware that such Tenant has ceased operating and does not intend to resume operations.
(e) Borrower shall notify Administrative Agent in writing, within five (5) Business Days following receipt thereof, of Borrower’s receipt of any termination fee or payment (“Lease Event Payment”) paid by any Tenant under any Lease in consideration of any termination, modification or amendment or settlement of any Lease or any release or discharge of any Tenant under any Lease from any obligation thereunder (a “Lease Event”). Borrower further covenants and agrees that (i) Borrower shall hold any such Lease Event Payment in trust for the benefit of Administrative Agent, for the benefit of Lenders, and (ii) (A) in the event such Lease Event Payment is less than $200,000, such Lease Event Payment shall be payable to Borrower or (B) in the event such Lease Event Payment equals or exceeds $200,000, such Lease Event Payment shall be placed by Borrower in reserve with Administrative Agent, for the benefit of Lenders, to be disbursed by Administrative Agent for tenant improvement and leasing commission costs with respect to the Property unless an Event of Default is continuing in which event it may be applied by Administrative Agent for payment of the Debt or otherwise in connection with the Loan and/or the Property, as so determined by Administrative Agent, in its sole discretion.
(f) Notwithstanding anything to the contrary contained herein, to the extent Administrative Agent’s prior approval is required for any leasing matters set forth in this Section 4.14, Administrative Agent shall have ten (10) Business Days from receipt of written request and all required information and documentation relating thereto in which to approve or disapprove such matter, provided that such request to Administrative Agent is marked at the top in bold lettering with the following language: “ADMINISTRATIVE AGENT’S RESPONSE IS REQUIRED WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER AND FAILURE OF ADMINISTRATIVE AGENT TO RESPOND SHALL RESULT IN ADMINISTRATIVE AGENT’S CONSENT BEING DEEMED TO HAVE BEEN GRANTED” and the envelope containing the request must be marked “PRIORITY”. Borrower shall provide Administrative Agent with such information and documentation as may be reasonably required by Administrative Agent, including, without limitation, lease comparables and other market information as reasonably required by Administrative Agent. In the event that Administrative Agent fails to grant or withhold its approval and consent to such Major Lease action within such ten (10) Business Day period (and, in the case of a withholding of consent, stating the grounds therefor in reasonable detail), then Administrative Agent’s approval and consent shall be deemed to have been granted. In addition, Borrower may, at Borrower’s option, prior to delivering to Administrative Agent a draft of any such new Lease or Lease modification for Administrative Agent’s approval, first deliver to Administrative Agent for Administrative Agent’s approval a term sheet setting forth the major economic and other business terms (the “Material Business Terms”) of such proposed Lease or Lease modification, together with all other materials reasonably requested by Administrative Agent in order to evaluate such Material Business Terms. Each such request for approval and consent shall contain a legend in capitalized bold letters on the total rentable square feet at top of the Propertycover page stating: “THIS IS A REQUEST FOR CONSENT TO THE MATERIAL BUSINESS TERMS FOR A [NEW LEASE] [LEASE MODIFICATION]. ADMINISTRATIVE AGENT’S RESPONSE IS REQUESTED WITHIN TEN (10) BUSINESS DAYS. ADMINISTRATIVE AGENT’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD SHALL RESULT IN ADMINISTRATIVE AGENT’S CONSENT BEING DEEMED TO HAVE BEEN GRANTED.” In the event that Administrative Agent fails to grant or withhold its approval and consent to such Material Business Terms within such ten (10) Business Day period (which ten (10) Business Day period shall run from the date upon which Administrative Agent receives all other materials reasonably requested by Administrative Agent in order to evaluate such Material Business Terms); and, in the case of a withholding of consent, stating the grounds therefor in reasonable detail, then Administrative Agent’s approval and consent shall be deemed to have been granted. Subject to the approval time periods set forth above with respect to Leases and Lease modifications, so long as any Lease or Lease modification submitted to Administrative Agent for approval and consent (a) does not contain Material Business Terms which differ in any material adverse respect from the Material Business Terms approved by Administrative Agent and (b) otherwise does not contain any lease terms which deviate materially from the terms of the standard form of lease (except as stated in the Material Business Terms which have been approved or deemed approved by Administrative Agent), Administrative Agent’s consent to such Lease or Lease modification shall not be required.
Appears in 1 contract
Samples: Loan Agreement (Alexanders Inc)
Leases and Rents. (a) Borrower may enter All Leases entered into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides by any Credit Party as lessor shall provide for rental rates and terms comparable to then-existing local market rates and terms (taking and conditions commercially reasonable and consistent with then-prevailing local market terms and conditions for similar type properties. With respect to any Lease with respect to which any Credit Party is lessor, such Credit Party shall not enter into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during unless Borrower shall have furnished Agent with executed copies of such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and Leases. All Leases shall provide that they Credit Agreement are subordinate to the Security Instrument applicable Mortgage, and that the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by LenderAdministrative Agent. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.Each Credit Party,
(b) Borrower (ia) shall observe and perform all of the material obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to materially impair the value of any of the Leases as security for the Debt; Indebtedness;
(iib) upon request, shall promptly send copies to Lender Administrative Agent of all written notices of default which Borrower such Credit Party shall send or receive thereunder; ;
(iiic) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performed, (iv) performed and shall not collect any effect a termination or diminution of the Rents more than one obligations of tenants under leases, only in a manner that a prudent owner of a similar property to the Mortgaged Properties would enforce such terms covenants and conditions or effect such termination or diminution in the ordinary course of business;
(1) month in advance (except security deposits shall not be deemed Rents collected in advance); (vd) shall not execute any other assignment of the lessor's ’s interest in any of the Leases or the Rents; and and
(vie) shall not consent convey or transfer or suffer or permit a conveyance or transfer of any Mortgaged Property or of any interest therein so as to effect a merger of the estates and rights of, or a termination or diminution of the obligations of, lessees thereunder. Each Credit Party shall deposit security deposits of lessees which are turned over to or for the benefit of such Credit Party or otherwise collected by or on behalf of such Credit Party, into a bank account and shall not commingle such funds with any assignment other funds of any Credit Party. Any bond or subletting other instrument which Borrower is permitted to hold in lieu of cash security deposits under any Leases not applicable Legal Requirements shall be maintained in accordance with their termsfull force and effect unless replaced by cash deposits as hereinabove described shall, without the prior written consent of Lender.
if permitted pursuant to Legal Requirements, name Administrative Agent as payee or mortgagee thereunder (cor at Agent’s option, be fully assignable to Agent) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into accountand shall, in the case all respects, comply with any applicable Legal Requirements and otherwise be reasonably satisfactory to Administrative Agent. Borrower shall, upon request, provide Administrative Agent with evidence reasonably satisfactory to Administrative Agent of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in Credit Parties’ compliance with the requirements foregoing. Upon the occurrence and during the continuance of this Security Instrument any Event of Default, Borrower shall, upon Administrative Agent’s request, if permitted by any applicable Legal Requirements, turn over to Administrative Agent the security deposits (and any subordinate agreement binding upon Lender interest theretofore earned thereon) with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value all or any portion of the Property taken as a whole. Any amendmentMortgaged Properties, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall to be held by Administrative Agent subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all terms of the conditions of this SubsectionLeases.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 1 contract
Samples: Credit Agreement (NMHG Holding Co)
Leases and Rents. (a) Unless Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the shall have received Lender’s prior written consent consent, all Leases and all renewals of Lender, provided such proposed Lease or Renewal Lease Leases executed after the date hereof shall (i) provides provide for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease)similar properties, (ii) is an arms-length transaction be on commercially reasonable terms with a bona fideunaffiliated, independent third party tenantparties (unless otherwise consented to by Lender), (iii) does not have a materially adverse effect on for the value of the Plaza del Sol Property taken and each Individual Continental Property, as a wholeapplicable, (iv) provide that such Lease is subject and subordinate to the Security Instrument and that the lessee thereunder agrees to will attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, any purchaser at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe a foreclosure sale and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) not contain any terms which would have a Material Adverse Effect. Notwithstanding anything to the contrary contained herein, Borrower shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their termsnot, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, (which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender), enter into, renew, extend, amend, modify, permit any assignment of or subletting under, waive any material provisions of, release any party to, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, in each case, any Major LeaseLease at the Plaza del Sol Property or any Individual Continental Property, as applicable. The term "Major Lease" At any time that Lender’s approval is required under this Section 4.14(a), provided no Event of Default is continuing, Lender’s approval shall mean any Lease between be deemed granted if the Deemed Approval Requirements have been satisfied with respect thereto.
(b) Without limitation of subsection (a) above, except in connection with Prior Hurricane Damage, Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or shall observe and perform the material obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) fifteen percent (15%) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the total rentable square feet lessee thereunder to be observed or performed in a commercially reasonable manner (which shall not, for the avoidance of doubt, require termination thereof); (iii) shall not collect any of the Rents more than one (1) month in advance (other than Security Deposits); (iv) shall not execute any assignment of lessor’s interest in the Leases or the Rents (except as contemplated by the Loan Documents); (v) shall not, without Lender’s prior written consent, alter, modify or change any Lease to the extent the same would, individually or in the aggregate, (A) cause any such Lease to violate Section 4.14(a)(i) through (iii) above or (B) have a Material Adverse Effect; and (vi) shall hold all Security Deposits in accordance with Legal Requirements. Upon request, Borrower shall furnish Lender with executed copies of all Leases.
(c) Notwithstanding anything contained herein to the contrary, Borrower shall not willfully withhold from Lender any information required to be delivered pursuant to the terms of this Agreement regarding renewal, extension, amendment, modification, waiver of provisions of, termination, rental reduction of, surrender of space of, or shortening of the term of, any Lease during the term of the Loan. Borrower further agrees to provide Lender on a quarterly basis with written notice of any Tenants under any Major Leases “going dark” under such Tenant’s Major Lease, it being understood that, with respect to any Individual Puerto Rico Property for which the related PR Restoration has been completed in accordance with Section 4.29 hereof, the foregoing notice requirement shall apply to any Major Lease at such Individual Puerto Rico Property. Borrower agrees to use commercially reasonable efforts to provide Lender with written notice of any monetary event of default under a Major Lease within ten (10) Business Days after the occurrence of any such event of default, it being understood that, with respect to any Individual Puerto Rico Property for which the related PR Restoration has been completed in accordance with Section 4.29 hereof, the foregoing notice requirement shall apply to any Major Lease at such Individual Puerto Rico Property. Borrower’s obligations under this Section 4.14(c) shall be deemed satisfied in the required information is set forth in the reports delivered by Borrower or Sponsor pursuant to Section 4.12.
(d) Borrower shall notify Lender in writing, within five (5) Business Days following receipt thereof, of Borrower’s receipt of any early termination fee or payment or other termination fee or payment paid by any Tenant under any Lease at the Plaza del Sol Property or any Individual Continental Property, as applicable, and Borrower further covenants and agrees that Borrower shall pay to Lender such amount for deposit into the Leasing Reserve Account and such deposit shall not be subject to any “cap” or similar limit relating to the Leasing Reserve Funds.
(e) Upon the occurrence of an Event of Default, Borrower shall, within thirty (30) days of demand by Lender, deliver to Lender all Security Deposits. Without limitation of any other term or provision contained herein, for purposes of clarification, for a Security Deposit to be deemed “delivered to Lender” in connection with the foregoing, the same must be in the form of cash or in a letter of credit solely in Lender’s name.
(f) Lender, at the request of Borrower, shall enter into a subordination, attornment and non-disturbance agreement in a form that is reasonably satisfactory to Lender and such Tenant (a “Non-Disturbance Agreement”) in connection with any Tenant under a Major Lease, any Tenants under a Lease who are leasing the land demised under such Lease and own the improvements thereon or any nationally or regionally recognized Tenant entering into a Lease in each instance, in accordance with the terms and conditions hereof that requires a Non-Disturbance Agreement pursuant to the terms of its Lease (other than a Lease to an Affiliate of Borrower) after the Closing Date; provided that Lender, at the request of Borrower, shall use commercially reasonable efforts to enter into a Non-Disturbance Agreement with all other Tenants. Lender shall promptly respond, at Borrower’s sole costs and expense, to any request by a Tenant under a Major Lease for an amendment to an existing Non-Disturbance Agreement. If Borrower requests Lender to enter into a Non-Disturbance Agreement with any Tenant in substantially the same form attached hereto as Exhibit E, then Lender shall deliver such Non-Disturbance Agreement in such form within ten (10) Business Days of written request therefor. All actual and reasonable, out‑of‑pocket costs and expenses of Lender and Servicer in connection with the negotiation, preparation, execution and delivery by Lender and Servicer of any Non-Disturbance Agreement shall be paid by Borrower, including, without limitation, reasonable attorneys’ fees and disbursements and the current fee being assessed by Servicer in connection therewith, provided, that such fee to Servicer shall not exceed $1,500.00.
Appears in 1 contract
Samples: Loan Agreement (Retail Value Inc.)
Leases and Rents. (a) All Leases and renewals of Leases (provided, however, that any renewal of existing Leases shall be subject to the terms of such Lease and any applicable SNDA) executed after the date hereof shall (i) provide for rental rates reasonably comparable to existing local market rates for similar properties, (ii) be on commercially reasonable terms with unaffiliated, third parties (unless otherwise consented to by Lender), (iii) provide that such Lease is subordinate to the Security Instrument and that the lessee will attorn to Lender and any purchaser at a foreclosure sale, (iv) not contain any terms which would have a Material Adverse Effect and (v) with respect to any Major Lease, shall be subject to Lender’s prior written approval as provided herein. Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) shall not, without the prior written consent of LenderRequisite Lenders’ (which must include the approval of any Lender then acting as Administrative Agent), provided such proposed consent not to be unreasonably withheld, conditioned or delayed, enter into, enter into any agreement with respect to (including, without limitation, any non-disturbance agreement), renew, extend, amend, modify, permit any assignment of, waive any provisions of, release any party to, terminate, exercise any recapture rights with respect to, reduce rents under, accept a surrender of space under, or shorten the term of, in each case, any Major Lease; provided, however, that such consent shall not be required to the extent that the Major Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, an extension or renewal that may be exercised in the case Tenant’s discretion. Administrative Agent, on behalf of Lenders, shall execute and deliver a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an armsSubordination Non-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect Disturbance and Attornment Agreement on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the Administrative Agent’s then current standard form of lease (or such other reasonable form requested by such Tenants and reasonably approved by Lender. All proposed Administrative Agent) to Tenants under future Major Leases which do not satisfy the requirements approved by Requisite Lenders (as set forth in this Subsection 3.8(aabove) shall promptly upon request with such commercially reasonable changes as may be subject requested by Tenants, from time to the prior approval of Lender and its counseltime, at Borrower's expense. Borrower shall promptly deliver as are reasonably acceptable to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this SubsectionAdministrative Agent.
(b) Borrower (i) shall observe and perform in all material respects the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debtin a commercially reasonable manner; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performedperformed in a commercially reasonable manner, provided, however, (ivA) Borrower shall deliver written notice of Borrower’s anticipated enforcement action with respect to any Major Lease not less than ten (10) Business Days prior to the taking of such enforcement action and (B) Borrower shall not terminate or accept a surrender of a Major Lease without Requisite Lenders’ prior approval (which must include the approval by any Lender then acting as Administrative Agent), such consent not to be unreasonably withheld, conditioned or delayed; (iii) shall not collect any of the Rents more than one (1) month in advance (except other than security deposits shall not be deemed Rents collected in advancedeposits); (viv) shall not execute any other assignment of the lessor's ’s interest in any of the Leases or the RentsRents (except as contemplated by the Loan Documents); and (viv) shall not consent to any assignment of or subletting hold all security deposits under any all Leases not in accordance with their termsApplicable Law. Upon request, without the prior written consent Borrower shall furnish Administrative Agent with executed copies of Lenderall Leases.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall notnot willfully withhold from Administrative Agent any information regarding renewal, without the prior written consent extension, amendment, modification, waiver of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminatetermination, reduce rents underrental reduction of, accept a surrender of space underof, or shorten shortening of the term of, any Major LeaseLease during the term of the Loan. The term "Major Lease" Borrower further agrees to provide Administrative Agent with written notice of a Tenant “going dark” under such Tenant’s Lease within five (5) Business Days after Borrower learns that such Tenant “goes dark”.
(d) Borrower shall mean notify Administrative Agent in writing, within two (2) Business Days following receipt thereof, of Borrower’s receipt of any termination fee or payment (“Lease Event Payment”) paid by any Tenant under any Lease between in consideration of any termination, modification or amendment or settlement of any Lease or any release or discharge of any Tenant under any Lease from any obligation thereunder (a “Lease Event”). Borrower as landlord further covenants and a third party as tenant demising in the aggregate more than the lesser of agrees that (i) 15,000 rentable square feet or Borrower shall hold any such Lease Event Payment in trust for the benefit of Administrative Agent, for the benefit of Lenders, and (ii) fifteen percent (15%A) in the event such Lease Event Payment is less than $50,000.00 and such Lease Event does not have a Material Adverse Effect, such Lease Event Payment shall be payable to Borrower or (B) in the event such Lease Event Payment equals or exceeds $50,000.00 or such Lease Event has a Material Adverse Effect, such Lease Event Payment shall be placed by Borrower in reserve with Administrative Agent, for the benefit of Lenders, to be disbursed by Administrative Agent for tenant improvement and leasing commission costs with respect to the applicable Individual Property and/or for payment of the total rentable square feet at Debt (without any Prepayment Premium or Spread Maintenance Premium being due in connection therewith) or otherwise in connection with the Loan and/or the applicable Individual Property, as so determined by Administrative Agent, in its sole discretion.
(e) If Borrower shall materially default in the performance or observance of any term, covenant or condition of any Lease and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Lease on the part of Borrower to be performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under such Lease shall be kept unimpaired and free from default. If any party to any Lease shall deliver to Lender a copy of any notice of default under such Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon.
Appears in 1 contract
Samples: Loan Agreement (Cole Credit Property Trust III, Inc.)
Leases and Rents. (a) All Leases and all renewals of Leases executed after the date hereof shall (i) provide for rental rates comparable to existing local market rates for similar properties, if available, (ii) be on commercially reasonable terms with unaffiliated, third parties (unless otherwise consented to by Lender), (iii) provide that such Lease is subordinate to the Security Instrument and that the lessee will attorn to Lender and any purchaser at a foreclosure sale, (iv) not contain any terms which would have a Material Adverse Effect and (v) shall be subject to Lender’s prior written approval as provided herein. Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) shall not, without the prior written consent of Lender, provided such proposed Lease grant any approval under (or Renewal Lease permit any approval to be deemed granted under), permit any sublease of, enter into, enter into any agreement with respect to (including, without limitation, any non-disturbance agreement), renew, extend, amend, modify, permit any assignment of, waive any provisions of (other than a waiver of immaterial provisions that do not have a Material Adverse Effect), release any party to, terminate, exercise any recapture or enforcement rights with respect to (including, without limitation, any exercise of rights after a Tenant default), reduce rents under, accept a surrender of space under, or shorten the term of, in each case, any Lease. Notwithstanding the foregoing or anything contained herein to the contrary, Borrower may enter into one or more subleases at the Property, without Lender’s consent, provided, that (i) provides for rental rates and the applicable Tenant remains fully liable under the terms comparable to existing local market rates and terms (taking into account the type and quality of the tenantapplicable Lease, (ii) the aggregate subleases at the Property do not exceed forty-nine percent (49%) of the total rentable area of the Property, and (iii) there is no downgrade, withdrawal or qualification of the long term unsecured debt rating of the applicable Tenant below its long term unsecured debt rating as of the date such Lease is executed by Borrower (unlesshereof. Further, notwithstanding the foregoing or anything contained herein to the contrary, the prior written consent of Lender shall not be required in the case connection with an amendment or modification of a Renewal any Lease, the rent payable during if such renewal, amendment or a formula or other method to compute such rent, modification is provided for in the original Lease), (ii) is an arms-length transaction immaterial and Borrower furnishes Lender with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value copy of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectionsame after execution thereof.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debtin all material respects in a commercially reasonable manner; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performedperformed in a commercially reasonable manner, provided, however, Borrower shall not terminate or accept a surrender of a Lease without Lender’s prior approval; (iviii) shall not collect any of the Rents more than one (1) month in advance (except other than security deposits shall not be deemed Rents collected in advancedeposits); (viv) shall not execute any other assignment of the lessor's ’s interest in any of the Leases or the RentsRents (except as contemplated by the Loan Documents); and (viv) shall not consent to any assignment of or subletting hold all security deposits under any all Leases not in accordance with their termsApplicable Law. Upon request, without the prior written consent Borrower shall furnish Lender with executed copies of Lenderall Leases.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall notnot willfully withhold from Lender any information regarding renewal, without the prior written consent extension, amendment, modification, waiver of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminatetermination, reduce rents underrental reduction of, accept a surrender of space underof, or shorten shortening of the term of, any Major LeaseLease during the term of the Loan. The term "Major Lease" Borrower further agrees to provide Lender with written notice of a Tenant “going dark” under such Tenant’s Lease within five (5) Business Days after such Tenant “goes dark” and Borrower’s failure to provide such notice shall mean constitute an Event of Default.
(d) Borrower shall notify Lender in writing, within two (2) Business Days following receipt thereof, of Borrower’s receipt of any termination fee or payment (“Lease Payment”) paid by any Tenant under any Lease between in consideration of any termination, modification or amendment or settlement of any Lease or any release or discharge of any Tenant under any Lease from any obligation thereunder (a “Lease Payment Event”). Borrower as landlord further covenants and a third party as tenant demising in the aggregate more than the lesser of agrees that (i) 15,000 rentable square feet or Borrower shall hold any such Lease Payment in trust for the benefit of Lender and (ii) fifteen percent (15%A) in the event such Lease Payment is less than $100,000 and such Lease Payment Event does not have a Material Adverse Effect, such Lease Payment shall be payable to Borrower or (B) in the event such Lease Payment equals or exceeds $100,000 or such Lease Payment Event has a Material Adverse Effect, such Lease Payment shall be placed by Borrower in reserve with Lender, to be disbursed by Lender for tenant improvement and leasing commission costs with respect to the Property and/or for payment of the total rentable square feet at Debt or otherwise in connection with the Loan and/or the Property, as so determined by Lender, in its sole discretion.
(e) If Borrower shall default in the performance or observance of any term, covenant or condition of any Lease and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of such Lease on the part of Borrower to be performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under such Lease shall be kept unimpaired and free from default. If any party to any Lease shall deliver to Lender a copy of any notice of default under such Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon.
(f) Notwithstanding anything to the contrary contained herein, to the extent Lender’s prior approval is required for any leasing matters set forth in this Section 4.14, Lender shall have ten (10) Business Days from receipt of written request and all required information and documentation relating thereto in which to approve or disapprove such matter, provided that such request to Lender is marked in bold lettering with the following language: “LENDER’S RESPONSE IS REQUIRED WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER” and the envelope containing the request must be marked “PRIORITY”. In the event that Lender fails to respond to the leasing matter in question within such time, Lender’s approval shall be deemed given for all purposes. Borrower shall provide Lender with such information and documentation as may be reasonably required by Lender, including, without limitation, lease comparables and other market information as reasonably required by Lender.
(g) In the event of any conflict or inconsistency between the terms and provisions of this Section 4.14 and the balance of the provisions hereof and/or any of the other Loan Documents, the terms and conditions set forth in this Section 4.14 shall control and be binding.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital New York Recovery Reit Inc)
Leases and Rents. (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (“a "Renewal Lease"”)) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's ’s expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's ’s certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's ’s interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's ’s expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's ’s certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "“Major Lease" ” shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 1 contract
Samples: Deed of Trust and Security Agreement (Innovative Micro Technology Inc)
Leases and Rents. (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "“Renewal Lease"”)) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard a form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection Section 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's ’s expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's ’s certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, ; (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's ’s interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Except with respect to any Major Lease (defined below), Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate subordination agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's ’s expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's ’s certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, of any Major Lease. The term "“Major Lease" ” shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet any Lease which (A) covers twenty percent (20%) or more of the total space at the Property, in the aggregate, or (B) provides for a lease term of more than ten (10) years including options to renew and (ii) fifteen percent (15%) of the total rentable square feet at the Propertyany instrument guaranteeing or providing credit support for any Major Lease.
Appears in 1 contract
Leases and Rents. (a) Except as otherwise consented to by Lender, all Leases shall be written on a standard form of lease which shall have been approved by Lender. Upon request, Borrower shall furnish Lender with executed copies of all Leases. No material changes may enter into a proposed Lease (including be made to the renewal or extension of an existing Lease (a "Renewal Lease")) Lender-approved standard lease without the prior written consent of Lender, provided such proposed Lease which consent shall not be unreasonably withheld or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lenderdelayed. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) leases shall be subject to the prior approval of Lender except that all proposed leases which (i) are on the same form of lease which has been approved by Lender, (ii) are the result of an arms-length transaction, (iii) which provide for rental rates comparable to existing market rates, (iv) where space to be leased does not exceed more than ten thousand (10,000) square feet, including all expansion rights and/or the term thereof does not exceed five (5) years, including all extension and its counselrenewal options, at (v) where the proposed tenant is an independent third party not affiliated with-the Borrower, and (vi) do not contain any terms which would materially affect Lender's expenserights under this Security Instrument, the Note or the Other Security Documents, shall not be subject to the prior approval of Lender. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases if the failure to perform or observe the same would materially and adversely affect the value of the Property taken as a whole and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce in a commercially reasonable manner all of the material terms, covenants and conditions contained in the Leases upon the the. part of the tenant lessee thereunder to be observed or performed, ; (iv) shall not collect any of the Rents more than one (1) month in advance (except provided that a security deposits deposit shall not be deemed Rents rent collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; (vi) shall not (A) materially alter, modify or change the terms of the Leases without the prior written consent of Lender, which consent shall not be unreasonably withheld or delayed if the alteration, modification or change does not materially and adversely affect the value of the Property taken as a whole and provided further that such Lease, as altered, modified or changed, is otherwise in compliance with the requirements of this Security Instrument, or (B) cancel or terminate any Lease (except for defaults thereunder) of more than ten thousand (10,000) square feet, including all expansion rights, or if the term thereof exceeds five (5) years, including all . extension and renewal options, or accept a surrender thereof or convey or transfer or suffer or permit a conveyance or transfer of the Land or of any interest therein so as to effect a merger of the estates and rights of, or a termination or diminution of the obligations of, lessees thereunder; (vii) shall not alter, modify or change the terms. of any guaranty, letter of credit or other credit support with respect to the Leases (the "Lease Guaranty") or cancel or terminate such Lease Guaranty without the prior written consent of Lender; and (viviii) shall not consent to any assignment of or subletting under any the Leases not in accordance with their terms, without the prior written consent of Lender.
. Notwithstanding the foregoing, subdivisions (cii), (vi), (vii) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease and (including any guaranty, letter of credit or other credit support with respect theretoviii) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has apply to residential Leases for space in a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectionmultifamily residential property.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 1 contract
Samples: Deed of Trust and Security Agreement (Hartman Commercial Properties Reit)
Leases and Rents. (a) Borrower may enter into a proposed Lease (including All Leases and all renewals of Leases executed after the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease date hereof shall (i) provides provide for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease)similar properties, (ii) is an arms-length transaction be on commercially reasonable terms with a bona fideunaffiliated, independent third party tenantparties (unless otherwise consented to by Lender), (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) provide that such Lease is subject and subordinate to the Security Instrument and that the lessee thereunder agrees to will attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, any purchaser at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe a foreclosure sale and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect contain any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not terms which would have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such LeaseMaterial Adverse Effect. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject Notwithstanding anything to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contrary contained herein to the contraryherein, Borrower shall not, without the prior written consent approval of LenderLender (which approval shall not be unreasonably withheld, conditioned or delayed), enter into, renew, extend, amend, modify, permit any assignment of or subletting under, waive any provisions of, release any party to, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, in each case, any Major Lease. The term "Major Lease" shall mean any Lease between .
(b) Without limitation of subsection (a) above, Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) fifteen percent (15%) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the total rentable square feet lessee thereunder to be observed or performed in a commercially reasonable manner; (iii) shall not collect any of the Rents more than one (1) month in advance (other than Security Deposits); (iv) shall not execute any assignment of lessor’s interest in the Leases or the Rents (except as contemplated by the Loan Documents); (v) shall not, without Lender’s prior written consent, alter, modify or change any Lease to the extent the same would, individually or in the aggregate, (A) cause any such Lease to violate 4.14(a)(i) through (iii) above or (B) have a Material Adverse Effect; and (vi) shall hold all Security Deposits in accordance with Legal Requirements. Upon request, Borrower shall furnish Lender with executed copies of all Leases.
(c) Notwithstanding anything contained herein to the contrary, Borrower shall not willfully withhold from Lender any information reasonably requested by Lender regarding renewal, extension, amendment, modification, waiver of provisions of, termination, rental reduction of, surrender of space of, or shortening of the term of, any Lease during the term of the Loan. Borrower further agrees to provide Lender with written notice of a Tenant “going dark” under such Tenant’s Lease within five (5) Business Days after Borrower (or any Affiliate thereof) becomes aware that such Tenant “goes dark”. Borrower agrees to provide Lender with written notice of any event of default under a Lease within five (5) business days after the occurrence of any such event of default. Borrower’s failure to provide any of the aforesaid notices shall, at Lender’s option, constitute an Event of Default. A Tenant “going dark” for a temporary closures due to normal course of business inventory and/or remodeling (provided that the closure for remodeling does not exceed 30 days) shall not be deemed to implicate the foregoing.
(d) Borrower shall notify Lender in writing, within two (2) Business Days following receipt thereof, of Borrower’s receipt of any early termination fee or payment or other termination fee or payment paid by any Tenant under any Lease, and Borrower further covenants and agrees that Borrower shall hold any such termination fee or payment in trust for the benefit of Lender and that any use of such termination fee or payment shall be subject in all respects to Lender’s prior written consent in Lender’s reasonable discretion (which consent may include, without limitation, a requirement by Lender that such termination fee or payment be placed in reserve with Lender to be disbursed by Lender for tenant improvement and leasing commission costs with respect to the Property and/or for payment of the Debt or otherwise in connection with the Loan evidenced by the Note and/or the Property, as so determined by Lender). The foregoing consent right of Lender (including, without limitation, any reserve requirement) shall not be subject to any “cap” or similar limit on the amount of Reserve Funds held by Lender.
(e) Upon the occurrence of an Event of Default, Borrower shall, within thirty (30) days of demand by Lender, deliver to Lender all Security Deposits. Without limitation of any other term or provision contained herein, for purposes of clarification, for a Security Deposit to be deemed “delivered to Lender” in connection with the foregoing, the same must be in the form of cash or in a letter of credit solely in Lender’s name.
Appears in 1 contract
Samples: Loan Agreement (Lightstone Value Plus Real Estate Investment Trust III, Inc.)
Leases and Rents. (a) Borrower Mortgagor does hereby absolutely and unconditionally assign to Moxxxxxxx, Mortgagor's right, title and interest in all current and future Lxxxxx xxx Rents, it being intended by Mortgagor that this assignment constitutes a present, absolute asxxxxxxxx and not an assignment for additional security only. Such assignment to Mortgagee shall not be construed to bind Mortgagee to the performance of any of the covenants, conditions or provisions contained in any such Lease or otherwise impose any obligation upon Mortgagee. Mortgagor agrees to execute and deliver to Mortgagee such additioxxx xxxxxuments, in form and substance satisfactory to Mortgagee, as may hereafter be requested by Mortgagee to further evidence and confirm such assignment. Nevertheless, subject to the terms of this paragraph, Mortgagee grants to Mortgagor a revocable license to operate and manage the Mortgaged Property and to collect the Rents. Any portion of the Rents held by Mortgagor shall be held in trust for the benefit of Mortgagee for xxx xx xhe payment of the Obligations. Upon an Event of Default, the license granted to Mortgagor herein shall automatically be revoked, and Mortgagee shall immediately be entitled to possession of all Rents, whether or not Mortgagee enters upon or takes control of the Mortgaged Property. Mortgagee is hereby granted and assigned by Mortgagor the right, at its option, upon revocation of the licensx xxxxxxx herein, to enter upon the Mortgaged Property in person, by agent or by court-appointed receiver to collect the Rents. Any Rents collected after the revocation of the license may be applied toward payment of the Obligations in such priority and proportions as Mortgagee in its discretion shall deem proper.
(b) Mortgagor shall not enter into a proposed Lease (including the renewal any Leases or extension of an modify existing Lease (a "Renewal Lease")) Leases without the prior written consent of LenderMortgagee which consent shall not be unreasonably withheld or delayed, provided provided, that Mortgagee's consent shall be deemed to have been given if Mortgagee fails to reject or consent to a proposed lease within fifteen (15) business days' receipt thereof; and, further, provided, that no such proposed Lease consent shall be required with respect to Leases for space which constitute less than ten percent (10%) of the net rentable square footage of the Mortgaged Property. Mortgagor shall furnish Mortgagee with executed copies of all Leases. All renewals or Renewal Lease (i) provides amendments of Leases shall provide for rental rates and terms comparable to then-existing local market rates and terms and conditions commercially reasonable and consistent with then-prevailing market terms and conditions. All renewals (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate except pursuant to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (vterms of Leases then in effect) is written on the standard form or amendments of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) of the preceding sentence shall be subject to the prior approval of Lender and its counselMortgagee, at Borrower's expensenot to be unreasonably withheld or delayed, provided, that any such renewal or amendment shall be deemed approved if Mortgagee fails to approve or disapprove any such renewal or amendment within fifteen (15) business days' receipt thereof by Mortgagee. Borrower All Leases executed after the date hereof shall promptly deliver to Lender copies of all Leases which provide that they are entered into pursuant subordinate to this Subsection together with Borrower's certification Mortgage and that it has satisfied the lessee agrees to attorn to Mortgagee. Mortgagee agrees, upon the request of any anchor tenant under a Lease for space at the Mortgaged Property and for all other tenants under a Lease for space in excess of ten percent (10%) of the conditions rentable square feet of this Subsection.the Mortgaged Property, to execute and deliver a non- disturbance agreement in form reasonably satisfactory to the tenant. Mortgagor
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the DebtObligations; (ii) upon request, shall promptly send copies to Lender Mortgagee of all notices of default which Borrower Mortgagor shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases Lease upon the part of the tenant lessee thereunder to be observed or performed, short of termination thereof, except as set forth in clause (vi) below; (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in the Leases or Rents; (vi) shall not alter, modify or change the terms of the Leases without the prior written consent of Mortgagee except as set forth in the first sentence of this subsection (b), or, except if Tenant is in default in its monetary obligations thereunder, cancel or terminate the Leases or accept a surrender thereof; (vii) shall not convey or transfer or suffer or permit a conveyance or transfer of the Mortgaged Property or of any interest therein so as to effect a merger of the estates and rights of, or a termination or diminution of the obligations of, lessees thereunder; (viii) shall not alter, modify or change the terms of any guaranty of the Leases or cancel or terminate such guaranty without the Rentsprior written consent of Mortgagee; and (viix) shall not consent to any assignment of or subletting under any the Leases not in accordance with their terms, without the prior written consent of LenderMortgagee, which shall not be unreasonably withheld. The provisions of the foregoing clauses (vi), (viii) and (ix) shall not be applicable to leases for space which constitutes ten percent (10%) or less of the net rentable square footage of the Mortgaged Property.
(c) Borrower may, without the consent Mortgagor shall deposit security deposits of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept lessees into a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit segregated account in accordance with applicable Legal Requirements. Any bond or other credit support with respect theretoinstrument which Mortgagor is permitted to hold in lieu of cash security deposits under any applicable Legal Requirements shall be maintained in full force and effect unless replaced by cash deposits as hereinabove described, shall be issued by an institution reasonably satisfactory to Mortgagee, shall, if permitted pursuant to any Legal Requirements, name Mortgagee as payee or mortgagee thereunder (or at Mortgagee's option, be fully assignable to Mortgagee) provided that such action (taking into accountand shall, in the case all respects, comply with any applicable Legal Requirements and otherwise be reasonably satisfactory to Mortgagee. Mortgagor shall, upon request, provide Mortgagee with evidence reasonably satisfactory to Mortgagee of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in Mortgagor's compliance with the requirements foregoing. Following the occurrence and during the continuance of this Security Instrument any Event of Default, Mortgagor shall, upon Mortgagee's request, if permitted by any applicable Legal Requirements, turn over to Mortgagee the security deposits (and any subordinate agreement binding upon Lender interest theretofore earned thereon) with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value all or any portion of the Property taken as a whole. Any amendmentMortgaged Property, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall to be held by Mortgagee subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all terms of the conditions of this SubsectionLeases.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 1 contract
Leases and Rents. (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates covenants and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. that Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b1) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security landlord under each Lease, (2) use best efforts to keep the Property leased at all times to Tenants whom Borrower, reasonably and in good faith, believes are creditworthy and at rents not less than comparable existing market rates or applicable rates allowed by law (if lower) for the Debt; similar properties, (ii3) upon request, shall promptly send copies to Lender of all notices of material default which Borrower shall send sends or receive thereunder; receives with respect to any non-residential Lease, (iii4) shall use best efforts to enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder each Tenant to be observed or performed, (iv5) shall other than the collection of Rent for the first and/or last month of a Lease, not collect any of the Rents more than one (1) month in advance advance, (except security deposits it being understood that Tenant Security shall not be deemed Rents Rent collected in advance); , nor grant any Tenant any right to prepay Rent more than one (v1) shall month in advance, (6) not execute any other assignment of the lessor's landlord’s interest in any of the Leases or the Rents; , (7) not materially (or adversely to the landlord) change the terms of any Lease, (8) keep in full force and effect and not cancel or terminate any Lease (viexcept for defaults thereunder) shall or accept a surrender thereof or convey or transfer or suffer or permit a conveyance or transfer of the Property or of any interest therein so as to effect a merger of the estates and rights of, or a termination or diminution of the obligations of, Tenants thereunder, (9) not cancel, release (except upon termination of the applicable Lease) or change the terms of any Tenant Security, (10) not consent to any assignment of of, or subletting under, the Leases, unless required to do so under applicable Laws, (11) after the date hereof, only enter into Leases on the standard form of Lease approved by Lender, (12) only enter into Leases that are a result of an arms-length transaction and only enter into Leases with Persons that are not Affiliates of Borrower, (13) not enter into a single Lease or a series of related Leases for more than five percent (5.00%) of the total rentable space of the Property, (14) promptly upon Lender’s request, execute and record (a) any additional assignments of the landlord’s interest under any Lease to Lender and (b) a specific subordination of any Lease to this Mortgage, both in form and substance satisfactory to Lender, (15) not do, or permit to be done, anything to impair the value of the Leases as security for the Secured Obligations, (16) not grant any Tenant any option, right of first refusal or other right to purchase all or any portion of the Property, (17) not enter into any Leases (other than residential Leases, on then market rates and market terms and in accordance with their termsapplicable Law) without the consent of Lender, such consent not to be unreasonably withheld or delayed, and (18) not engage in any action(s), omission(s), malfeasance or nonfeasance which would constitute the constructive eviction or attempted constructive eviction of any Tenant. Upon request, Borrower shall furnish Lender with executed copies of all non-residential Leases and upon a Default under the Loan and request by Lender, Borrower shall furnish Lender with executed copies of all residential Leases. Each non residential Lease entered into subsequent to the date hereof shall provide that in the event of the enforcement by Lender of the remedies provided for hereby or by Law, the Tenant thereunder will, upon request and at the option of any Person succeeding to the interest of Borrower as a result of such enforcement, automatically become the lessee of said successor in interest and attorn to said successor in interest, without change in the terms or other provisions of the Lease, provided, however, that (A) said successor in interest shall not be bound by (i) any payment of Rent for more than one (1) month in advance, except prepayments in the nature of Tenant Security to the extent actually received by said successor in interest or (ii) any amendment or modification of the Lease made without the consent of Lender or such successor in interest. Each Lease shall also provide that (a) the Lease is subordinate to this Mortgage and (b) for each non residential Lease upon request by said successor in interest, such Tenant shall execute and deliver an instrument or instruments confirming such attornment. Lender hereby refers to Section 291-f of the Real Property Law of the State of New York and Borrower acknowledges Lender’s rights under the statute, specifically with respect to subparagraphs 5, 7, 8 and 9 as hereinabove set forth. Lender shall have all the rights against lessees of the Mortgaged Property as set forth in Section 291-f of the Real Property Law of New York. Borrower shall, promptly upon Lender's request, deliver to Lender an executed copy of each Lease then in effect. All Leases shall be on forms approved by Lender, shall be for initial terms of at least six months and, with respect to individual apartment residential Leases, not more than two years, and shall not include options to purchase. If customary in the applicable market, residential Leases with terms of less than six months may be permitted with Lender's prior written consent. Borrower shall not lease any portion of the Property for non-residential use except with the prior written consent of Lender.
(c) Borrower may, without the such consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrowerand Lender's expenseprior written approval of each Lease. Borrower shall promptly deliver to Lender copies of amendmentsnot modify the terms of, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of or extend or terminate, any Lease for non-residential use (including any Lease in existence on the conditions date of this Subsection.
(dInstrument) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter intosuch consent not to be unreasonably withheld or delayed. Borrower shall, renewwithout request by Lender, extenddeliver an executed copy of each non-residential Lease to Lender promptly after such Lease is signed. All non-residential Leases, amendincluding renewals or extensions of existing Leases, modifyshall specifically provide and shall be deemed to include provisions that (1) such Leases are subordinate to the lien of this Instrument (unless waived in writing by Lender); (2) the Tenant shall attorn to Lender and any purchaser at a foreclosure sale, waive such attornment to be self-executing and effective upon acquisition of title to the Property by any provisions ofpurchaser at a foreclosure sale or by Lender in any manner; (3) the Tenant agrees to execute such further evidences of attornment as Lender or any purchaser at a foreclosure sale may from time to time request; (4) the Lease shall not (unless the Lender determines at any time to the contrary) be terminated by foreclosure or any other transfer of the Property; (5) after a foreclosure sale of the Property, terminateLender or any other purchaser at such foreclosure sale may, reduce rents underat Lender's or such purchaser's option, accept or terminate such Lease; and (6) the Tenant shall, upon receipt after the occurrence of an Event of Default of a surrender of space underwritten request from Lender, or shorten pay all Rents payable under the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Propertyto Lender.
Appears in 1 contract
Samples: Mortgage, Assignment of Leases and Rents and Security Agreement (Clipper Realty Inc.)
Leases and Rents. (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates covenants and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. that Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b1) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for landlord under each Lease, (2) use best efforts to keep the Debt; Property leased at all times to Tenants, (ii3) upon request, shall promptly send copies to Lender of all notices of material default which Borrower shall send sends or receive thereunder; receives with respect to any non-residential Lease, (iii4) shall use best efforts to enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder each Tenant to be observed or performed, (iv5) shall other than the collection of Rent for the first and/or last month of a Lease, not collect any of the Rents more than one (1) month in advance advance, (except security deposits it being understood that Tenant Security shall not be deemed Rents Rent collected in advance); , nor grant any Tenant any right to prepay Rent more than one (v1) shall month in advance, (6) not execute any other assignment of the lessor's landlord’s interest in any of the Leases or the Rents; , (7) not materially, adversely change the terms of any Lease, (8) keep in full force and effect and not cancel or terminate any Lease (viexcept for defaults thereunder) shall or accept a surrender thereof or convey or transfer or suffer or permit a conveyance or transfer of the Property or of any interest therein so as to effect a merger of the estates and rights of, or a termination or diminution of the obligations of, Tenants thereunder, (9) not cancel, release (except upon termination of the applicable Lease) or change the terms of any Tenant Security, (10) not consent to any assignment of of, or subletting under, the Leases, unless required to do so by Applicable Laws, (11) after the date hereof, only enter into Leases on the standard form of Lease approved by Lender, (12) only enter into Leases that are a result of an arms-length transaction and only enter into Leases with Persons that are not Affiliates of Borrower, (13) not enter into a single Lease or a series of related Leases for more than five percent (5.00%) of the total rentable space of the Property, (14) promptly upon Lender’s request, execute and record any additional assignments of the landlord’s interest under any Lease to Lender, (15) not do, or permit to be done, anything to impair the value of the Leases as security for the Secured Obligations, (16) not grant any Tenant any option, right of first refusal or other right to purchase all or any portion of the Property, (17) not enter into any Leases (other than residential Leases, on then market rates and market terms and in accordance with their termsapplicable Law) without the consent of Lender such consent not to be unreasonably withheld or delayed and (18) not engage in any action(s), omission(s), malfeasance or nonfeasance which would constitute the constructive eviction or attempted constructive eviction of any Tenant. Upon request, Borrower shall furnish Lender with executed copies of all Leases. Each non residential Lease entered into subsequent to the date hereof shall provide that in the event of the enforcement by Lender of the remedies provided for hereby or by Law, the Tenant thereunder will, upon request and at the option of any Person succeeding to the interest of Borrower as a result of such enforcement, automatically become the lessee of said successor in interest and attorn to said successor in interest, without change in the terms or other provisions of the Lease, provided, however, that (A) said successor in interest shall not be bound by (i) any payment of Rent for more than one (1) month in advance, except prepayments in the nature of Tenant Security to the extent actually received by said successor in interest or (ii) any amendment or modification of the Lease made without the consent of Lender or such successor in interest. Each Lease shall also provide that (a) the Lease is subordinate to this Mortgage and (b) for each non-residential Lease upon request by said successor in interest, such Tenant shall execute and deliver an instrument or instruments confirming such attornment. Lender hereby refers to Section 291-f of the Real Property Law of the State of New York and Borrower acknowledges Lender’s rights under the statute, specifically with respect to subparagraphs 5, 7, 8 and 9 as hereinabove set forth. Lender shall have all the rights against lessees of the Mortgaged Property as set forth in Section 291-f of the Real Property Law of New York. Borrower shall, promptly upon Lender’s request, deliver to Lender an executed copy of each Lease then in effect. All Leases shall be on forms approved by Lender, shall be for initial terms of at least six months and, with respect to individual apartment residential Leases, not more than two years, and shall not include options to purchase. If customary in the applicable market, residential Leases with terms of less than six months may be permitted with Lender’s prior written consent. Borrower shall not lease any portion of the Property for non-residential use except with the prior written consent of Lender.
(c) Borrower may, without the such consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expenseand Lender’s prior written approval of each Lease. Borrower shall promptly deliver to Lender copies of amendmentsnot modify the terms of, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of or extend or terminate, any Lease for non-residential use (including any Lease in existence on the conditions date of this Subsection.
(dInstrument) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter intosuch consent not to be unreasonably withheld or delayed. Borrower shall, renewwithout request by Lender, extenddeliver an executed copy of each non-residential Lease to Lender promptly after such Lease is signed. All non-residential Leases, amendincluding renewals or extensions of existing Leases, modifyshall specifically provide and shall be deemed to include provisions that (1) such Leases are subordinate to the lien of this Instrument (unless waived in writing by Lender); (2) the Tenant shall attorn to Lender and any purchaser at a foreclosure sale, waive such attornment to be self-executing and effective upon acquisition of title to the Property by any provisions ofpurchaser at a foreclosure sale or by Lender in any manner; (3) the Tenant agrees to execute such further evidences of attornment as Lender or any purchaser at a foreclosure sale may from time to time request; (4) the Lease shall not (unless the Lender determines at any time to the contrary) be terminated by foreclosure or any other transfer of the Property; (5) after a foreclosure sale of the Property, terminateLender or any other purchaser at such foreclosure sale may, reduce rents underat Lender’s or such purchaser’s option, accept or terminate such Lease; and (6) the Tenant shall, upon receipt after the occurrence of an Event of Default of a surrender of space underwritten request from Lender, or shorten pay all Rents payable under the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Propertyto Lender.
Appears in 1 contract
Samples: Consolidation, Modification, Extension and Spreader Agreement (Clipper Realty Inc.)
Leases and Rents. (a) Except as otherwise consented to by Lender, all Leases shall be written on a standard form of lease which shall have been approved by Lender. Upon request, Borrower shall furnish Lender with executed copies of all Leases. No material changes may enter into a proposed Lease (including be made to the renewal or extension of an existing Lease (a "Renewal Lease")) Lender-approved standard lease without the prior written consent of Lender, provided such proposed Lease which consent shall not be unreasonably withheld or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lenderdelayed. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) leases shall be subject to the prior approval of Lender and its counselexcept that all proposed leases which (i) are on the same form of lease which has been approved by Lender, at Borrower's expense. Borrower shall promptly deliver (ii) are the result of an arms-length transaction, (iii) which provide for rental rates comparable to Lender copies existing market rates, (iv) where space to be leased does not exceed more than ten percent (10%) of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all total rentable space of the conditions Property, (v) where the proposed tenant is an independent third party not affiliated with the Borrower, and (vi) do not contain any terms which would materially affect Lender's rights under this Security Instrument, the Note or the Other Security Documents, shall not be subject to the prior approval of this Subsection.Lender. Borrower
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases if the failure to perform or observe the same would materially and adversely affect the value of the Property taken as a whole and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce in a commercially reasonable manner all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performed; provided, however, with respect to multifamily residential property, a residential Lease may be terminated in the event of a default by the tenant thereunder; (iv) shall not collect any of the Rents more than one (1) month in advance (except provided that a security deposits deposit shall not be deemed Rents rent collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; (vi) shall not (A) materially alter, modify or change the terms of the Leases without the prior written consent of Lender, which consent shall not be unreasonably withheld or delayed if the alteration, modification or change does not materially and adversely affect the value of the Property taken as a whole and provided further that such Lease, as altered, modified or changed, is otherwise in compliance with the requirements of this Security Instrument, or (B) cancel or terminate any Lease (except for defaults thereunder) of more than ten (10%) percent of the rentable space of the Property or accept a surrender thereof or convey or transfer or suffer or permit a conveyance or transfer of the Land or of any interest therein so as to effect a merger of the estates and rights of, or a termination or diminution of the obligations of, lessees thereunder; (vii) shall not alter, modify or change the terms of any guaranty, letter of credit or other credit support with respect to the Leases (the "Lease Guaranty") or cancel or terminate such Lease Guaranty without the prior written consent of Lender; and (viviii) shall not consent to any assignment of or subletting under any the Leases not in accordance with their terms, without the prior written consent of Lender. Notwithstanding the foregoing, subdivisions (ii), (vi), (vii) and (viii) shall not apply to residential Leases for space in a multifamily residential property.
(cb) Borrower may, without In the consent of Lender, amend, modify or waive event the provisions of any lessee under that certain Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, by and provided that such Leasebetween Marlton Crossing Shopping Center Limited Partnership, as amendedlandlord and Super Fresh Food Markets, modified or waivedas tenant, is otherwise in compliance dated March 17, 1986, as amended and/or assigned from time to time (the "Super Fresh Lease") provides Borrower with the requirements notice of this Security Instrument and any subordinate agreement binding upon Lender with respect to non-renewal of such Super Fresh Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without establish an interest-bearing account for the prior written consent benefit of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender . Commencing with the first rent payment due under the Super Fresh Lease during the last twelve (12) months of space under, or shorten the term ofof such lease, any Major LeaseBorrower shall deposit all rents, revenues, issues and profits collected under the Super Fresh Lease into such account (the "Super Fresh Cash Flow Account"). Notwithstanding the foregoing, Borrower need not make deposits into the Super Fresh Cash Flow Account which would cause such account to contain a balance in excess of Five Hundred Thousand Dollars ($500,000). The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising balance in the aggregate more than Super Fresh Cash Flow Account shall be released to Borrower upon the lesser occurrence of one of the following events: (i) 15,000 rentable square feet or payment in full of the Debt, (ii) fifteen percent (15%) Defeasance of the total rentable square feet at Loan, or (iii) commencement of rent payments by a replacement lessee occupying the Propertyleased premises currently occupied by Super Fresh, pursuant to a release executed by Lender and approving the occupancy of such replacement lessee, the terms of the replacement lease and the rent payments thereunder.
Appears in 1 contract
Samples: Contribution Agreement (Cv Reit Inc)
Leases and Rents. (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable Trustor hereby assigns to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases Beneficiary as security for the Debt; (ii) upon request, shall promptly send copies to Lender payment of all notices the Obligations and the observance and performance by Trustor of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in provisions of this Deed of Trust, the Leases upon Loan Agreement and the Loan Documents on Trustor's part of the tenant thereunder to be observed or performed, (iv) shall all of Trustor's right, title and interest in and to the Leases and the Rents. Subject to the terms of this paragraph, Beneficiary waives the right to enter the Trust Property for the purpose of collecting the Rents, and grants Trustor the right to collect the Rents. The right of Trustor to collect the Rents may be revoked by Beneficiary upon the occurrence and continuance of any Event of Default by giving prior notice of such revocation to Trustor. Following such notice, Beneficiary may retain and apply the Rents toward payment of the Obligations in accordance with the provisions of the Loan Agreement, or to the operation, maintenance and repair of the Trust Property, and irrespective of whether Beneficiary has commenced a foreclosure of this Deed of Trust or has applied or arranged for the appointment of a receiver. Trustor will not, without the consent of Beneficiary, which consent will not collect be unreasonably withheld, conditioned or delayed, make, or suffer to be made, any Leases or modify or cancel any Leases or accept prepayments of installments of the Rents for a period of more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute or further assign the whole or any other assignment part of the lessor's Rents. Trustor will (i) fulfill or perform each and every provision of the Leases on the part of Trustor to be fulfilled or performed, (ii) promptly send copies of all notices of default that Trustor sends or receives under the Leases to Beneficiary, and (iii) enforce, short of termination of the Leases, the performance or observance of the material provisions thereof by the other parties thereto.
(b) Trustor agrees that it will not further pledge or assign its interest in any of the Leases Leases, or further assign the Rents; and (vi) shall not consent to Rents so long as any assignment part of the Obligations remains unpaid or subletting under any Leases not in accordance with their termsunreleased, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counselBeneficiary, which approval shall will not be unreasonably withheld or delayed. After commencement of a foreclosure action hereunder, in addition to the rights that Beneficiary may have herein, to the extent permitted by law, Beneficiary may, at Borrower's expense. Borrower shall promptly deliver its option, require Trustor to Lender copies pay monthly in advance to Beneficiary or any receiver appointed to collect the Rents, the fair and reasonable rental value for the use and occupation of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all such part of the conditions Trust Property as may be in possession of this SubsectionTrustor.
(dc) Notwithstanding anything Nothing contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive in this paragraph will be construed as imposing on Beneficiary any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at obligations of the Propertylessor under the Leases.
Appears in 1 contract
Leases and Rents. (a) Borrower Mortgagor does hereby absolutely and unconditionally assign to Mortgagee its right, title and interest in all current and future Leases and Rents and all proceeds from the sale, cancellation, surrender or other disposition of the Leases, it being intended by Mortgagor that this assignment constitutes a present, absolute assignment and not an assignment for additional security only. Such assignment to Mortgagee shall not be construed to bind Mortgagee to the performance of any of the covenants, conditions or provisions contained in any such Lease or otherwise to impose any obligation upon Mortgagee. Mortgagor agrees to execute and deliver to Mortgagee such additional instruments in form and substance satisfactory to Mortgagee, as may hereafter be requested by Mortgagee to further evidence and confirm such assignment. Nevertheless, subject to the terms of this PARAGRAPH 7, Mortgagee grants to Loan No. 6518291 Mortgagor a revocable license to operate and manage the Mortgaged Property and to collect the Rents. Mortgagor shall hold the Rents, or a portion thereof sufficient to discharge all current sums due on the Indebtedness, in trust for the benefit of Mortgagee for use in the payment of such sums. The grant of the foregoing license is subject to the provisions of PARAGRAPH 1 of the separate Assignment of Leases and Rents of even date herewith granted by the Mortgagor as "Assignor" to the Mortgagee as "Assignee" with respect to the Mortgaged Property ("ASSIGNMENT OF LEASES AND RENTS"). Upon the occurrence of an Event of Default, the license granted to Mortgagor herein shall be automatically revoked and Mortgagee shall immediately be entitled to possession of all Rents, whether or not Mortgagee enters upon or takes control of the Mortgaged Property. Mortgagee is hereby granted and assigned by Mortgagor the right, at its option, upon the revocation of the license granted herein to enter into upon the Mortgaged Property in person, by agent or by court-appointed receiver to collect the Rents. Any Rents collected after the revocation of the license herein granted may be applied toward payment of the Indebtedness in such priority and proportion as Mortgagee in its discretion shall deem proper. It is further the intent of Mortgagor and Mortgagee that the Rents hereby absolutely assigned are no longer, during the term of this Mortgage, property of Mortgagor or property of any estate of Mortgagor as defined in Section 541 of the Bankruptcy Code and shall not constitute collateral, cash or otherwise, of Mortgagor. The term "Rents" as used herein shall mean the gross rents without deduction or offsets of any kind.
(b) All Leases executed after the date of this Mortgage shall provide that they are subordinate to this Mortgage and that the lessee agrees to attorn to Mortgagee; PROVIDED, HOWEVER, that nothing herein shall affect Mortgagee's right to designate from time to time any one or more Leases as being superior to this Mortgage and Mortgagor shall execute and deliver to Mortgagee and shall cause to be executed and delivered to Mortgagee from each tenant under such Lease any instrument or agreement as Mortgagee may deem necessary to make such Lease superior to this Mortgage. Upon request, Mortgagor shall promptly furnish Mortgagee with executed copies of all Leases.
(c) Mortgagor shall not, without the prior consent of Mortgagee, (i) lease all or any part of the Mortgaged Property, (ii) alter or change the terms of any Lease or cancel or terminate, abridge or otherwise modify the terms of any Lease, (iii) consent to any assignment of or subletting under any Lease not in accordance with its terms, (iv) cancel, terminate, abridge or otherwise modify any guaranty of any Lease or the terms thereof, (v) collect or accept prepayments of installments of Rents for a proposed period of more than one (1) month in advance or (vi) further assign the whole or any part of the Leases or the Rents; PROVIDED, HOWEVER, that such action as described in subsections (i)-(iv) above may be taken without Mortgagee's consent for any Lease which is for 10,000 square feet of space or less, and has a term (including the renewal or extension term) of five (5) years or less, and so long as such Lease provides for an existing Lease annual rent at least equal to the then competitive and comparable market rent (a lease satisfying those criteria shall be referred to as a "Renewal SMALL LEASE") so long as the taking of such action is in the ordinary course of Mortgagor's business and that such action is still subject to PARAGRAPH 1 of the separate Assignment of Leases and Rents pertaining to Termination Amounts (as defined therein). Loan No. 6518291
(d) With respect to each Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease Mortgagor shall (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all each and every provision thereof on the obligations imposed upon the lessor lessor's part to be fulfilled or performed under the Leases each Lease and shall not do or permit to be done anything to impair the value of any of the Leases Lease as security for the Debt; Loan, including surrender or voluntary termination of any Lease, (ii) upon request, shall promptly send to Mortgagee copies to Lender of all notices of default which Borrower Mortgagor shall send or receive thereunder; , (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases such Lease upon the lessee's part of the tenant thereunder to be observed or performed, short of termination thereof, (iv) shall not collect any execute and deliver, at the request of Mortgagee, all such further assurances, confirmations and assignments in connection with the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); Mortgaged Property as Mortgagee shall, from time to time, require and (v) shall not execute any other assignment upon request, furnish Mortgagee with executed copies of the lessor's interest in any of the Leases or the Rentsall Leases; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their termsPROVIDED, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of termHOWEVER, the planned alternative use of notice to Mortgagee referenced in subsection (ii) above and the affected space) does not have a materially adverse effect restriction on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease in connection with a tenant who is the enforcement of its terms, covenants and conditions set forth in default beyond applicable notice and grace periods (iii) above shall not be considered an action which has a materially adverse effect on required or apply, as the case may be, for any Small Lease. Upon the occurrence of any Event of Default under this Mortgage, Mortgagor shall pay monthly in advance to Mortgagee, or any receiver appointed to collect the Rents, the fair and reasonable rental value for the use and occupation of the Mortgaged Property taken or part of the Mortgaged Property as a wholemay be occupied by Mortgagor or any one Mortgagor and upon default in any such payment Mortgagor shall vacate and surrender possession of the Mortgaged Property to Mortgagee or to such receiver and, in default thereof, Mortgagor may be evicted by summary proceedings or otherwise.
(e) All security deposits of tenants, whether held in cash or any other form, shall not be commingled with any other funds of Mortgagor and, if cash, shall be deposited by Mortgagor at such commercial or savings bank or banks as may be reasonably satisfactory to Mortgagee. Any amendment, modification, waiver, termination, rent reduction, space surrender bond or term shortening other instrument which does not satisfy the Mortgagor is permitted to hold in lieu of cash security deposits under any applicable legal requirements set forth in this Subsection shall be maintained in full force and effect in the full amount of such deposits unless replaced by cash deposits as hereinabove described, shall be issued by an institution reasonably satisfactory to Mortgagee, shall, if permitted pursuant to any legal requirements, name Mortgagee as payee or mortgagee thereunder (or at Mortgagee's option, be fully assignable to Mortgagee) and shall, in all respects, comply with any applicable legal requirements and otherwise be reasonably satisfactory to Mortgagee. Mortgagor shall, upon request, provide Mortgagee with evidence reasonably satisfactory to Mortgagee of Mortgagor's compliance with the foregoing. Following the occurrence and during the continuance of any Event of Default, Mortgagor shall, upon Mortgagee's request, if permitted by any applicable legal requirements, turn over to Mortgagee the security deposits (and any interest theretofore earned thereon) with respect to all or any portion of the Mortgaged Property, to be held by Mortgagee subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all terms of the conditions of this SubsectionLeases.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 1 contract
Leases and Rents. (a) Upon request, Borrower shall furnish Lender with executed copies of all Leases. No material changes may enter into a proposed Lease (including be made to the renewal or extension of an existing Lease (a "Renewal Lease")) Leases without the prior written consent of Lender. In addition, provided such all renewals of Leases and all proposed Lease or Renewal Lease (i) provides leases shall provide for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-shall be arms- length transaction transactions with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lendertenants. All proposed commercial Leases which do not satisfy the requirements set forth in this Subsection 3.8(aand renewals of existing commercial Leases (other than those renewals pursuant to renewal options exercised by tenants pursuant to Lender-approved Leases) shall be subject to the prior approval of Lender, which approval shall not be unreasonably withheld or delayed. All Leases shall provide that they are subordinate to this Security Instrument and that the lessee agrees to attorn to Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver not contain an option to Lender copies purchase or a right of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all first refusal in favor of the conditions of this Subsection.
(b) tenant. Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performed, short of termination thereof; (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; (vi) shall not alter, modify or change the economic terms of any commercial Lease or cancel or terminate any commercial Lease or accept a surrender thereof without the prior written consent of Lender, which consent shall not be unreasonably withheld or delayed, or convey or transfer or suffer or permit a conveyance or transfer of the Land or of any interest therein so as to effect a merger of the estates and rights of, or a termination or diminution of the obligations of, lessees thereunder; (vii) shall not alter, modify or change the terms of any guaranty, letter of credit or other credit support with respect to the Leases or cancel or terminate such lease guaranty without the prior written consent of Lender, which consent shall not be unreasonably withheld or delayed; and (viviii) shall not consent to any assignment of or subletting under any Leases commercial Lease not in accordance with their its terms, without the prior written consent of Lender, which consent shall not be unreasonably withheld or delayed.
(b) All security deposits of lessees, whether held in cash or any other form, shall be treated by Borrower as trust funds, shall not be commingled with any other funds of Borrower and, if cash, shall be deposited by Borrower at a federally insured institution reasonably satisfactory to Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive Notwithstanding the provisions of any Lease or terminateSubsection 3.6(a) above, reduce rents under, accept a surrender renewals of existing commercial Leases and proposed Leases for commercial space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender provided all of the following conditions are satisfied: (i) the rental income pursuant to the renewal or proposed Lease is not more than ten percent (10%) of the total rental income for all of the space tenants at the Property, (ii) the renewal or proposed Lease covers less than ten percent (10%) of space at the Property, (iii) the renewal or proposed Lease shall be written in a form of Lease which has either been previously approved by Lender or is on the same form of the original lease, provided Lender receives its standard form of Subordination, Non-Disturbance and its counselAttornment Agreement in recordable form and executed by Borrower and the tenant prior to the execution of such lease, which approval (iv) no rent credits, free rents or concessions have been granted under the renewal or proposed Lease, (v) the renewal or proposed Lease shall not provide for rental rates and terms comparable to existing local market rates and terms, and (vi) the renewal or proposed Lease shall be unreasonably withheld or delayedan arms-length transaction with a bona fide, at Borrower's expenseindependent third party tenant. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers all Leases which are entered into pursuant to this Subsection (c) together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
the preceding sentence within thirty (d30) Notwithstanding anything contained herein to days after the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) execution of the total rentable square feet at the PropertyLease.
Appears in 1 contract
Samples: Mortgage, Security Agreement and Fixture Filing (Excal Enterprises Inc)
Leases and Rents. (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of does hereby absolutely and unconditionally assign to Lender, provided Borrower's right, title and interest in all current and future Leases and Rents, it being intended by Borrower that this assignment constitutes a present, absolute assignment and not an assignment for additional security only. Such assignment to Lender shall not be construed to bind Lender to the performance of any of the covenants, conditions or provisions contained in any such proposed Lease or Renewal Lease (i) provides for rental rates otherwise impose any obligation upon Lender. Borrower agrees to execute and terms comparable deliver to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date Lender such Lease is executed by Borrower (unlessadditional instruments, in form and substance satisfactory to Lender, as may hereafter be requested by Lender to further evidence and confirm such assignment. Nevertheless, subject to the case terms of this Section 3.7, Lender grants to Borrower a Renewal Leaselicense, revocable upon an Event of Default, to operate and manage the rent payable during such renewalProperty and to collect the Rents. Borrower shall hold the Rents, or a formula or other method portion thereof sufficient to compute such rentdischarge all current sums due on the Debt, is provided in trust for the benefit of Lender for use in the original Lease)payment of such sums. Upon an Event of Default, (ii) is an arms-length transaction with a bona fidewithout the need for notice or demand, independent third party tenantthe license granted to Borrower herein shall automatically be revoked, (iii) does and Lender shall immediately be entitled to possession of all Rents, whether or not have a materially adverse effect on the value Lender enters upon or takes control of the Property taken as a whole, (iv) Property. Lender is subject hereby granted and subordinate to assigned by Borrower the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counselright, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all its option, upon revocation of the conditions license granted herein, to enter upon the Property in person, by agent or by court-appointed receiver to collect the Rents. Any Rents collected after the revocation of this Subsectionthe license may be applied toward payment of the Debt in such priority and proportions as Lender in its sole discretion shall deem proper.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance advance; and (except security deposits shall not be deemed Rents collected in advance); (viv) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents. Borrower shall promptly send copies to Lender of all notices of default which Borrower shall send under any Lease; and, (A) shall enforce all of the terms, covenants and conditions contained in the Lease upon the part of the lessee thereunder to be observed or performed, short of termination thereof; (viB) shall not alter, modify or change the terms of the Leases in any material respect without the prior written consent of Lender; (C) shall not convey or transfer or suffer or permit a conveyance or transfer of the Property or of any interest therein so as to effect a merger of the estates and rights, or a termination or diminution of the obligations of, tenants under the Leases; (D) shall not consent to any assignment of or subletting under any the Leases not in accordance with their termsthe terms of the Leases, without the prior written consent of Lender; and (E) shall not cancel or terminate the Leases or accept a surrender thereof, except following a default by Tenant (hereinafter defined) under its Lease provided Borrower simultaneously enters into a new Lease acceptable to Lender pursuant to the terms hereof.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such LeaseBorrower, as amendedthe lessor thereunder, modified or waived, is otherwise in compliance with the requirements of this Security Instrument may not enter into proposed lease renewals and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, new leases without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive . Borrower expressly understands that any provisions of, terminate, reduce rents under, accept a surrender and all proposed leases are included in the definition of space under, or shorten the term of, any Major Lease. The term "Major Lease" or "Leases" as such terms may be used throughout this Security Instrument, the Note and the Other Security Documents. Borrower shall mean furnish Lender with executed copies of all Leases and any Lease between amendments or other agreements pertaining thereto within ten (10) days of the execution thereof.
(d) All security deposits of tenants, whether held in cash or any other form, shall not be commingled with any other funds of Borrower and, if cash, shall be deposited by Borrower at such commercial or savings bank or banks as landlord may be reasonably satisfactory to Lender. Any bond or other instrument which Borrower is permitted to hold in lieu of cash security deposits under any applicable legal requirements shall be maintained in full force and a third party as tenant demising 122 effect in the aggregate more than full amount of such deposits unless replaced by cash deposits as hereinabove described, shall be issued by an institution reasonably satisfactory to Lender, shall, if permitted pursuant to any legal requirements, name Lender as payee or lender thereunder (or at Lender's option, be fully assignable to Lender) and shall, in all respects, comply with any applicable legal requirements and otherwise be reasonably satisfactory to Lender. Borrower shall, upon request, provide Lender with evidence reasonably satisfactory to Lender of Borrower's compliance with the lesser foregoing. Following the occurrence and during the continuance of any Event of Default, Borrower shall, upon Lender's request, if permitted by any applicable legal requirements, turn over to Lender the security deposits (iand any interest theretofore earned thereon) 15,000 rentable square feet with respect to all or (ii) fifteen percent (15%) any portion of the total rentable square feet at Property, to be held by Lender subject to the Propertyterms of the Leases.
Appears in 1 contract
Samples: Mortgage and Security Agreement (Entertainment Properties Trust)
Leases and Rents. (a) Except as set forth on the occupancy report delivered by Borrower may enter into a proposed Lease (including to Lender prior to the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lenderdate hereof, provided such proposed Lease or Renewal Lease with respect to each Property, (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such each Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject full force and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debteffect; (ii) upon requestthe tenants have commenced the payment of rent under the Leases, shall promptly send copies and to Lender of all notices of default which Borrower shall send Borrower’s actual knowledge, there are no offsets, claims or receive thereunderdefenses to the enforcement thereof; (iii) shall enforce all rents due and payable under the Leases have been paid and no portion thereof has been paid for any period more than thirty (30) days in advance; (iv) the rent payable under each Lease is the amount of the material terms, covenants and conditions contained fixed rent set forth in the Leases upon occupancy report, and, to Borrower’s actual knowledge, there is no claim or basis for a claim by the tenant thereunder for an adjustment to the rent; (v) no tenant has made any claim against the landlord under any Lease which remains outstanding, to Borrower’s actual knowledge, there are no defaults on the part of the landlord under any Lease, and, to Borrower’s actual knowledge, no event has occurred which, with the giving of notice or passage of time, or both, would constitute such a default; (vi) to Borrower’s actual knowledge, there is no present default by the tenant thereunder to be observed under any Lease, and no events or performedcircumstances exist which, (iv) shall not collect any with the passage of time or the giving of notice, or both, would constitute a default under a Lease and enforcement of the Rents more than one Leases by Mortgage Borrower would be subject to no defenses of any kind; (1vii) month in advance (except all security deposits shall not be deemed Rents collected in advance)under Leases are as set forth on the occupancy report; (vviii) shall not execute any other assignment Mortgage Borrower is the sole owner of the entire lessor's ’s interest in each Lease; (ix) each Lease is the valid, binding and enforceable obligation of Mortgage Borrower and the applicable tenant thereunder, and (x) no Person has any possessory interest in, or right to occupy, the Property except under the terms of the Leases or the Rents; and (vi) shall not consent a Permitted Encumbrance. Except as previously disclosed to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use none of the affected space) does not have a materially adverse effect on the value Leases contains any option to purchase or right of first refusal to purchase the Property taken as a wholeor any part thereof. Neither the Leases nor the rents have been assigned or pledged except to Mortgage Lender, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with no other Person has any interest therein except the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectiontenants thereunder.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Strategic Storage Trust VI, Inc.)
Leases and Rents. (a) Borrower does hereby absolutely and unconditionally assign to Lender, all Borrower’s right, title and interest in all current and future Leases and Rents, it being intended by Borrower that this assignment constitutes a present, absolute assignment and not an assignment for additional security only. Such assignment to Lender shall not be construed to bind Lender to the performance of any of the covenants, conditions or provisions contained in any such Lease or otherwise impose any obligation upon Lender. Borrower agrees to execute and deliver to Lender such additional instruments, in form and substance satisfactory to Lender, as may enter into hereafter be requested by Lender to further evidence and confirm such assignment. Nevertheless, subject to the terms of this Section, Lender grants to Borrower a proposed Lease (including revocable license to operate and manage the renewal Security Property and to collect the Rents. Borrower shall hold the Rents, or extension a portion thereof, sufficient to discharge all current sums due on the Debt, in trust for the benefit of Lender for use in the payment of such sums. Upon and during the continuance of an existing Event of Default, without the need for notice or demand, the license granted to Borrower herein shall automatically be revoked, and Lender shall immediately be entitled to possession of all Rents, whether or not Lender enters upon or takes control of the Security Property. Lender is hereby granted and assigned by Borrower the right, at its option, upon revocation of the license granted herein, to enter upon the Security Property in person, by agent or by court-appointed receiver to collect the Rents. Any Rents collected after the revocation of the license may be applied toward payment of the Debt in such priority and proportions as Lender in its sole discretion shall deem proper. Anything to the contrary set forth herein or elsewhere notwithstanding, if Lender shall have required and Borrower shall have executed a Cash Management Agreement in favor of Lender, then, except to the extent that Lender in its sole discretion determines otherwise, (i) the provisions of the Cash Management Agreement shall control over any conflicting provisions of this Section, (ii) the provisions of the Cash Management Agreement which require that Rents shall be delivered or paid directly to a lockbox or similar cash control mechanism shall take priority over any conflicting provisions herein or elsewhere in the Loan Documents, and (iii) the provisions of the Cash Management Agreement which specify the order of application of Rents AMENDED AND RESTATED MORTGAGE, SECURITY AGREEMENT AND FIXTURE FINANCING STATEMENT - Page 17 43412-20/Continental Towers shall take priority over any conflicting provisions in this Section or elsewhere in the Loan Documents, other than provisions granting to Lender any rights following and during the continuance of a default or an Event of Default.
(b) All non-residential Leases executed after the date hereof shall provide that they are subordinate to this Security Instrument and that the tenant agrees to attorn to Lender. Unless specifically approved by Lender, none of the Leases shall contain any option to purchase, any right of first refusal to purchase or, with respect to any Major Lease, any right to terminate the lease term (except in the event of the destruction or condemnation of all or substantially all of the Security Property) to the extent such termination right would disqualify such Lease (from being a "Renewal Major Lease")) . Leases executed after the date hereof shall not contain any provisions which adversely affect the Security Property or have a material adverse effect on the rights of any holder of the Loan without the prior written consent of Lender. Each tenant shall conduct business only in that portion of the Security Property covered by its lease. Upon request, provided such proposed Lease or Renewal Lease Borrower shall furnish Lender with executed copies of all Leases.
(c) Borrower shall not, without the prior consent of Lender which consent shall not be unreasonably withheld (i) provides for rental rates and terms comparable to existing local market rates and terms (taking enter into account the type and quality any Lease of all or any part of the tenantSecurity Property in excess of (x) as 90,000 rentable square feet (inclusive of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewalexpansion options), or (y) 20,000 rentable square feet (inclusive of expansion options) with a formula or other method to compute such rent, is provided for in the original term greater than five (5) years (inclusive of extension options) (a “Major Lease”), (ii) is an arms-length transaction with cancel, terminate, abridge or otherwise modify the terms of any Major Lease, or accept a bona fide, independent third party tenantsurrender thereof, (iii) does consent to any assignment of or subletting under any Major Lease not have a materially adverse effect on the value of the Property taken as a wholein accordance with its terms, (iv) is subject and subordinate to cancel, terminate, abridge or otherwise modify any guaranty of any Major Lease or the Security Instrument and the lessee thereunder agrees to attorn to Lenderterms thereof, and (v) is written on accept prepayments of installments of Rents for a period of more than one (1) month in advance or (vi) further assign the standard form whole or any part of lease approved by Lenderthe Leases or the Rents except to Subordinate Lender pursuant to the Subordinate Loan Documents. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(aIf Lender fails to respond to a request for consent hereunder within ten (10) business days of receipt thereof, such consent shall be deemed granted, provided that such request shall have been accompanied by all information reasonably requested by Lender or reasonably necessary for Lender to evaluate such request and shall have clearly stated, in 14 point type or greater, that if Lender fails to respond to such request within ten (10) business days, Lender’s consent shall be deemed to have been granted. Notwithstanding the foregoing, Lender’s consent shall not be required for renewal Leases containing economic terms which are no less favorable than the terms that are existing under the original Lease. In addition, Borrower shall not (A) lease all or any part of the Security Property, (B) cancel, terminate, abridge or otherwise modify the terms of any Lease, or accept a surrender thereof, (C) consent to any assignment of or subletting under any Lease not in accordance with its terms or (D) cancel, terminate, abridge or otherwise modify any guaranty of any Lease or the terms thereof, unless such actions are exercised for a commercially reasonable purpose in arms-length transactions for market rate terms (provided, however, that Borrower may, subject to the prior approval all other terms of Lender and its counselthis Mortgage, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all lease any part of the conditions of this SubsectionSecurity Property to an affiliated entity if such action is exercised for a commercially reasonable purpose and for market rate terms).
(bd) Borrower (i) shall observe and perform in all material respects all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; AMENDED AND RESTATED MORTGAGE, SECURITY AGREEMENT AND FIXTURE FINANCING STATEMENT - Page 18 43412-20/Continental Towers
(iii) shall use commercially reasonable efforts to enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performed, short of termination thereof; (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's ’s interest in any of the Leases or the RentsRents other than any such assignment set forth specifically in the Subordinate Loan Documents; and (vi) shall deliver to Lender, upon Lender’s reasonable request, tenant estoppel certificates from each commercial tenant at the Security Property in form and substance reasonably satisfactory to Lender, provided that Borrower shall not consent be required to deliver such certificates more frequently than one (1) time in any assignment calendar year (except in the event an Event of or subletting under any Leases not Default has occurred and remains uncured); and (vii) shall execute and deliver at the reasonable request of Lender all such further assurances, confirmations and assignments in accordance connection with their terms, without the prior written consent of LenderSecurity Property as Lender shall from time to time reasonably require.
(ce) All security deposits of tenants, whether held in cash or any other form, shall not be commingled with any other funds of Borrower mayand, without the consent of Lenderif cash, amend, modify shall be deposited by Borrower at such commercial or waive the provisions of any Lease savings bank or terminate, reduce rents under, accept a surrender of space underbanks, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise held in compliance with applicable law, as may be reasonably satisfactory to Lender. Any bond or other instrument which Borrower is permitted to hold in lieu of cash security deposits under any applicable legal requirements shall be maintained in full force and effect in the full amount of such deposits unless replaced by cash deposits as hereinabove described, shall be issued by an institution reasonably satisfactory to Lender, shall, if permitted pursuant to any legal requirements, name Lender as payee or Lender thereunder (or at Lender’s option, be fully assignable to Lender) and shall, in all respects, comply with any applicable legal requirements and otherwise be reasonably satisfactory to Lender. Borrower shall, upon request, provide Lender with evidence reasonably satisfactory to Lender of this Security Instrument Borrower’s compliance with the foregoing. Following the occurrence and during the continuance of any subordinate agreement binding Event of Default, Borrower shall, upon Lender’s request, if permitted by any applicable legal requirements, turn over to Lender the security deposits with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value all or any portion of the Property taken as a whole. Any amendmentSecurity Property, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall to be held by Lender subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all terms of the conditions of this SubsectionLeases.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 1 contract
Samples: Mortgage, Security Agreement and Fixture Financing Statement (Prime Group Realty Trust)
Leases and Rents. (a) Borrower may enter into Except as otherwise consented to by Lender, all Leases shall be written on a standard form of lease which shall have been approved by Lender. If Lender does not approve or disapprove a proposed Lease, within twenty (20) days after Lender's receipt thereof, Borrower shall provide Lender with notice stating in bold print that Lender's approval or disapproval is required within ten (10) days after Lender's receipt of such notice. If Lender does not provide its approval or disapproval within said ten (10) day period, such proposed Lease (including shall be deemed approved. Upon request, Borrower shall furnish Lender with executed copies of all Leases. No material changes may be made to the renewal or extension of an existing Lease (a "Renewal Lease")) Lender-approved standard lease without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed. If Lender does not approve or disapprove of such proposed changes, at Borrowerwithin twenty (20) days after Lender's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contraryreceipt thereof, Borrower shall notprovide Lender with notice stating in bold print that Lender's approval or disapproval is required within ten (10) days after Lender's receipt of such notice. If Lender does not provide its approval or disapproval within said ten (10) day period, such proposed changes shall be deemed approved. Borrower may enter into a proposed Lease without the Lender's prior written consent provided that such proposed Lease (i) is on the same standard form of lease which has been approved by Lender except Lender's consent will not be required for non-material, enter intonon-adverse changes, renew(ii) is the result of an arms-length transaction, extend(iii) provides for rental rates comparable to existing market rates, amend(iv) involves space to be leased less than ten percent (10%) of total rentable space of the Property, modify(v) involves a proposed tenant which is an independent third party not affiliated with the Borrower, waive (vi) does not contain any provisions ofterms which would materially and adversely affect Lender's rights under this Security Instrument, terminatethe Note or the other Security Documents, reduce rents under, accept and (vii) is not a surrender of space under, or shorten the term of, any Major Lease. The term For purposes hereof, a "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable covering more than 20,000 square feet of rentable space of the Property, or (ii) fifteen percent which has a term of more than five (15%5) years. Moreover, for purposes of calculating the total rentable 20,000 square feet at footage test in the Propertyimmediately preceding sentence, Lender may, in Lender's sole discretion, aggregate any and all Leases to affiliated entities to determine whether such Leases should be treated as one or more Major Lease.
Appears in 1 contract
Samples: Fee and Leasehold Mortgage and Security Agreement (Konover Property Trust Inc)
Leases and Rents. (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lenderdoes hereby absolutely and unconditionally assign to Lender all current and future Leases and Rents, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed it being intended by Borrower (unlessthat this assignment constitutes a present, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided absolute assignment and not an assignment for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectionadditional security only.
(b) Borrower (i) hereby grants to Lender the right to enter upon and to take possession of the Mortgaged Property and every part thereof for the purpose of collecting the Rents and to let the Mortgaged Property or any part thereof, and to apply the Rents, after payment of all necessary charges and expenses, on account of the Debt. This assignment and grant shall observe continue in effect until the Debt which is secured hereby is paid in full. Notwithstanding the foregoing, Borrower shall have the right under a license granted hereby from Lender to collect and perform all receive the obligations imposed Rents until the occurrence of an Event of Default, and Xxxxxxxx agrees to use the Rents in payment of the Debt and in payment of Taxes, Other Charges and any other charge becoming due against the Mortgaged Property, but such right of Borrower shall be revoked automatically upon the lessor under occurrence of an Event of Default.
(c) Except for the Leases and shall not do set forth on Exhibit B to this Mortgage, Borrower will not, without the written consent of Lender, enter into any Leases, nor receive or permit to be done anything to impair the value of collect Rents from any tenant of the Leases as security Mortgaged Property or any part thereof for the Debt; (ii) upon request, shall promptly send copies to Lender a period of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance. After the occurrence of an Event of Default, Borrower will pay monthly in advance (except security deposits shall not to Lender, or to any receiver appointed to collect the Rents, the fair and reasonable rental value for the use and occupation of the Mortgaged Property or of such part thereof as may be deemed Rents collected in advance); (v) shall not execute the possession of Borrower or any other assignment of party or parties claiming through or under Borrower, and upon failure to make any such payment will, at the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent option of Lender, amend, modify or waive vacate and surrender the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use possession of the affected space) does not have a materially adverse effect on the value of the Mortgaged Property taken as a wholeto Lender or to such receiver, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not thereof may be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expenseevicted by summary proceedings. Borrower shall promptly deliver to Lender copies of amendments, modifications covenants and waivers which are entered into pursuant to this Subsection together with Borrower's certification agrees that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall will not, without the prior written consent of Lender in each case, (a) assign, pledge, hypothecate or otherwise encumber any of the Leases or the Rents, (b) enter into any Leases which are not at then-market rates or which are not by their terms expressly subordinate to this Mortgage, (c) enter into any Leases which are not in form approved by Lender, enter into, renew, extend, or (d) amend, modify, waive cancel or terminate any provisions ofLeases or aceept a voluntary surrender thereof. Borrower will fully perform all of the covenants and agreements of the landlord under the Leases, terminateand will take all such necessary actions (short of termination) as may be necessary or appropriate to enforce the covenants and agreements of the tenants under the Leases.
(d) At any time, reduce rents underand from time to time, accept on notice from Lender, Borrower shall deliver to Lender a surrender schedule of all Leases then in effect, which schedule shall include the following: (a) the name of the tenant; (b) a description of the leased space underin form satisfactory to Lender, or shorten including, but not limited to, the approximate number of square feet so leased and the type of activity performed under such Lease; (e) the rental rate, including escalations, if any; (d) the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at Lease; and (e) such other information as Lender reasonably may request. If requested by Xxxxxx, Borrower shall also deliver photocopies of all Leases accompanied by the Propertycertificate of Borrower that such copies are true, complete and accurate.
(e) Upon demand from Lender, Xxxxxxxx also shall execute and deliver to Lender such further assignments and other documents and instruments as Lender may deem necessary to carry out or evidence the assignment herein made.
(f) Written demand by Xxxxxx delivered to any tenant for payment of Rents by reason of the occurrence of any Event of Default claimed by Xxxxxx shall be sufFieient evidence of each such tenant's obligation and authority to make all future payments of Rents to Lender without the necessity of further consent by Xxxxxxxx. Xxxxxxxx hereby indemnifies and agrees to hold each tenant free and harmless from and against all liability, loss, cost, damage or expense suffered or incurred by such tenant by reason 10
Appears in 1 contract
Leases and Rents. (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease Mortgagor shall (i) provides for rental rates and terms comparable perform or cause to existing local market rates and terms (taking into account be performed all the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal lessor's obligations under any Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) enforce (including the termination and cancellation of any Lease, so long as the same is an arms-length transaction with a bona fidefide enforcement of Mortgagor's right as lessor under any such Lease and such termination or cancellation, independent third party tenanteither by itself or in the aggregate with other terminations and cancellations, shall not diminish or impair the security of this Mortgage) the performance by the lessee under its respective Lease of all of said lessee's obligations thereunder, (iii) does not give Mortgagee prompt notice and a copy of any notice of default, event of default, termination or cancellation sent or received by Mortgagor in respect of any Lease producing an annual income to Mortgagor of $100,000 or more (such Lease, a AMaterial Lease"); but nothing contained herein shall preclude Mortgagor from modifying, supplementing or amending any existing Lease or preclude Mortgagor from entering, subject to Section 2.02(b) hereof, into additional Leases which may, from time to time, be modified, supplemented, amended, terminated or cancelled by Mortgagor subject to the provisions of this Section 2.02(a).
(b) Mortgagor agrees that any Lease, the termination of which could reasonably be expected to have a materially adverse effect on Material Adverse Effect, shall contain the value of the Property taken as a whole, (iv) following provision: A[Tenant] acknowledges and agrees that this [Lease] is subject and subordinate to that certain Tranche B Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated as of March __, 2000, made by [Landlord] in favor of Citibank, N.A. as collateral agent for the Security Instrument and the lessee thereunder agrees to attorn to Lender, and lenders listed therein (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all any amendment, assignment or other modification thereof made at any time, the AMortgage"), such subordination being self-operative and requiring no further instrument of subordination. If at any time the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor mortgagee under the Leases Mortgage (together with successors and shall not do assigns of such mortgagee, AMortgagee") or permit to be done anything to impair any other person or the value successors or assigns of any of the Leases foregoing shall succeed to the rights of [Landlord] (any such successor, a ASuccessor Landlord"), then [Tenant] shall, at the election and upon the request of any Successor Landlord, fully and completely attorn to and recognize such Successor Landlord as security the landlord under this [Lease] upon the then executory terms of this [Lease], except that such Successor Landlord shall not be (a) liable for the Debt; any act or omission of any previous [landlord] under this [Lease], (iib) upon requestobligated to repair, shall promptly send copies to Lender of all notices of default which Borrower shall send replace, rebuild or receive thereunder; (iii) shall enforce all restore any portion of the material terms, covenants and conditions contained [premises demised under the Lease] in the Leases upon the part event of damage, destruction or taking by eminent domain, (c) subject to any offset or defense which [Tenant] may have against any previous [landlord] under this [Lease], (d) bound by any amendment or modification of the tenant thereunder [Lease] unless Mortgagee has approved such amendment or modification in advance, and (e) obligated to perform any work in the [premises demised under the Lease] other than work that is required to be observed performed under the [Lease]. If any act or performedomission by [Landlord] shall give [Tenant] the right, (iv) immediately or after the lapse of time, to cancel or terminate this [Lease] in whole or in part or to claim such cancellation or termination on the basis of a partial or total eviction, [Tenant] shall not collect exercise any of the Rents more than one such right until (1) month in advance (except security deposits it shall not be deemed Rents collected in advance); (v) shall not execute any other assignment have given written notice of the lessor's interest in any of the Leases such act or the Rents; omission to Mortgagee, and (vi2) a reasonable period for remedying such act or omission shall not consent have elapsed following such notice and following the time when Mortgagee shall have become entitled under this Mortgage to any assignment of or subletting under any Leases not in accordance with their terms, without remedy the prior written consent of Lendersame."
(ci) Borrower mayExcept as provided in Section 2.02(a) hereof, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower Mortgagor shall not, without Mortgagee's consent, (A) assign, mortgage, pledge or otherwise transfer, dispose of or encumber, whether by operation of law or otherwise, any Lease or the prior written consent Rents, (B) accept or permit the acceptance of Lendera prepayment of any amounts payable under such Lease for more than one month in advance of the due date therefor, (C) enter into, renew, extend, amend, modify, waive any provisions ofcancel, terminate, reduce rents under, terminate or accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower or (D) enter into any Lease (1) with Mortgagor or any affiliate of Mortgagor or its constituent partners or (2) which would be a "disqualified lease", as landlord and a third party defined in Section ' 168(h)(1)(B)(ii) of the Internal Revenue Code of 1986, as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or amended.
(ii) fifteen percent Supplementing the provisions of Section 2.02(c)(i) hereof, if the lessee under any Lease (15%or any receiver, trustee, custodian or other party who succeeds to the rights of any lessee) rejects or disaffirms such Lease pursuant to any bankruptcy law, Mortgagor hereby assigns to Mortgagee the proceeds of any claims (including the right to retain or apply any security deposits) that Mortgagor may have against the lessee (or receiver, trustee, custodian or other party who succeeds to the rights of any lessee) and any guarantor of any of the total rentable square feet Leases, under any one or more of the Leases or any guaranty thereof based upon any breach by such lessee of the terms and provisions of the applicable Lease (including any claim that Mortgagor may have by reason of a termination, rejection or disaffirmance of such Lease pursuant to any bankruptcy law), and the use and occupancy of the premises demised thereby, whether or not pursuant to the applicable Lease (including any claim for use and occupancy arising under any bankruptcy law). Mortgagor, immediately upon obtaining knowledge of any such breach or use by any such lessee, shall notify Mortgagee of any such breach or use. Except in respect of any Lease that is not a Material Lease (in which case Mortgagor shall proceed in Mortgagor's and Mortgagee's behalf pursuant to Section 2.02(c)(ii)(B) hereof), Mortgagee shall have the sole right to elect, either:
(A) to proceed against such lessee or guarantor as if it were the named lessor thereunder, in Mortgagor's name or in Mortgagee's name as agent for Mortgagor, and Mortgagor agrees to cooperate with Mortgagee in such action and shall execute any and all documents reasonably required in furtherance of such action; or
(B) to have Mortgagor proceed in Mortgagor's and Mortgagee's behalf in which event Mortgagee may participate in any such proceedings, and Mortgagor from time to time shall deliver to Mortgagee all instruments reasonably requested by Mortgagee or as may be required to permit such participation. Mortgagor shall, at its expense, diligently prosecute any such proceedings, shall deliver to Mortgagee copies of all papers served in connection therewith and shall consult and cooperate with Mortgagee, its attorneys and agents, in the Propertycarrying on and defense of any such proceedings; provided that no settlement of any such proceeding shall be made by Mortgagor without Mortgagee's consent.
Appears in 1 contract
Samples: Mortgage, Assignment of Leases and Rents, Security Agreement (North Atlantic Energy Corp /Nh)
Leases and Rents. (a) Unless Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the shall have received Lender’s prior written consent consent, all Leases and all renewals of Lender, provided such proposed Lease or Renewal Lease Leases executed after the date hereof shall (i) provides provide for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease)similar properties, (ii) is an arms-length transaction be on commercially reasonable terms with a bona fideunaffiliated, independent third party tenantparties (unless otherwise consented to by Lender), (iii) does not have a materially adverse effect on the value of the Property taken as a wholefor each Individual Continental Property, (iv) provide that such Lease is subject and subordinate to the Security Instrument and that the lessee thereunder agrees to will attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, any purchaser at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe a foreclosure sale and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) not contain any terms which would have a Material Adverse Effect. Notwithstanding anything to the contrary contained herein, Borrower shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their termsnot, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, (which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender), enter into, renew, extend, amend, modify, permit any assignment of or subletting under, waive any material provisions of, release any party to, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, in each case, any Major LeaseLease at an Individual Continental Property. The term "Major Lease" At any time that Lender’s approval is required under this Section 4.14(a), provided no Event of Default is continuing, Lender’s approval shall mean any Lease between be deemed granted if the Deemed Approval Requirements have been satisfied with respect thereto.
(b) Without limitation of subsection (a) above, except in connection with Prior Hurricane Damage, Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or shall observe and perform the material obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) fifteen percent (15%) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the total rentable square feet lessee thereunder to be observed or performed in a commercially reasonable manner (which shall not, for the avoidance of doubt, require termination thereof); (iii) shall not collect any of the Rents more than one (1) month in advance (other than Security Deposits); (iv) shall not execute any assignment of lessor’s interest in the Leases or the Rents (except as contemplated by the Loan Documents); (v) shall not, without Lender’s prior written consent, alter, modify or change any Lease to the extent the same would, individually or in the aggregate, (A) cause any such Lease to violate Section 4.14(a)(i) through (iii) above or (B) have a Material Adverse Effect; and (vi) shall hold all Security Deposits in accordance with Legal Requirements. Upon request, Borrower shall furnish Lender with executed copies of all Leases.
(c) Notwithstanding anything contained herein to the contrary, Borrower shall not willfully withhold from Lender any information required to be delivered pursuant to the terms of this Agreement regarding renewal, extension, amendment, modification, waiver of provisions of, termination, rental reduction of, surrender of space of, or shortening of the term of, any Lease during the term of the Loan. Borrower further agrees to provide Lender on a quarterly basis with written notice of any Tenants under any Major Leases “going dark” under such Tenant’s Major Lease, it being understood that, with respect to any Individual Puerto Rico Property for which the related PR Restoration has been completed in accordance with Section 4.29 hereof, the foregoing notice requirement shall apply to any Major Lease at such Individual Puerto Rico Property. Borrower agrees to use commercially reasonable efforts to provide Lender with written notice of any monetary event of default under a Major Lease within ten (10) Business Days after the occurrence of any such event of default, it being understood that, with respect to any Individual Puerto Rico Property for which the related PR Restoration has been completed in accordance with Section 4.29 hereof, the foregoing notice requirement shall apply to any Major Lease at such Individual Puerto Rico Property.. Borrower’s obligations under this
Appears in 1 contract
Samples: Loan Agreement (DDR Corp)
Leases and Rents. (a) Borrower may may, in the ordinary course of business without Administrative Agent’s consent, enter into a proposed into, amend or modify any Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided that such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable in all material respects to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease)similar properties, (ii) is an arms-length transaction with a bona fide, independent third party tenanton commercially reasonable terms (unless otherwise consented to by Administrative Agent), (iii) does not have a materially adverse effect on the value of the Property taken as a wholeis with unaffiliated, third parties (unless otherwise consented to by Administrative Agent), (iv) is subject and subordinate to provides that the Security Instrument and the lessee Tenant thereunder agrees to will attorn to Lender, Administrative Agent and any purchaser at a foreclosure sale and (v) is written on the standard form of lease approved by Lender. All proposed Leases does not contain any terms which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject are reasonably likely to the prior approval of Lender and its counsel, at Borrower's expensehave a Material Adverse Effect. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of have the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower mayright, without the consent or approval of LenderAdministrative Agent, amend, modify to terminate or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease that is not a Major Lease so long as such termination or surrender is (including any guaranty, letter A) by reason of credit or other credit support with respect theretoa Tenant default under the applicable Lease and (B) provided that such action (taking into account, in the case ordinary course of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such LeaseBorrower’s business. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject Notwithstanding anything to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contrary contained herein to the contraryherein, Borrower shall not, without the prior written consent approval of LenderAdministrative Agent (which approval shall not be unreasonably withheld, conditioned or delayed), enter into, renew, extend, amend, modifyor modify (other than to a de minimis extent), consent to any assignment of or subletting under, waive any provisions of, release any party to, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, in each case, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising , except (x) in the aggregate more case of any Major Lease other than any Specified Tenant Lease and the lesser Oaktree Lease, to the extent that the terms of such Major Lease require Borrower to act reasonably in approving such action and withholding approval under the circumstances would be unreasonable (for the avoidance of doubt, the foregoing proviso shall not be applicable to any Specified Tenant Lease and the Oaktree Lease, and Administrative Agent’s approval with respect to any Specified Tenant Lease and the Oaktree Lease shall be required as otherwise provided herein) and (y) to the extent that a Tenant under any Major Lease has, pursuant to the terms of its Lease, an unilateral right (without Borrower’s consent and/or approval) to effectuate such action. Notwithstanding the foregoing provisions of this Section 4.14(a), it being acknowledged that Borrower is permitted to enter into an amendment to the Convene Lease on the terms set forth on Schedule I hereto.
(b) Borrower (i) 15,000 rentable square feet or shall observe and perform the obligations (other than those of a de minimis nature) imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) shall enforce all terms, covenants and conditions (other than those of a de minimis nature) contained in the Leases upon the part of the Tenants thereunder to be observed or performed in a commercially reasonable manner, provided, however, Borrower shall not terminate or accept a surrender of a Major Lease without the Administrative Agent’s prior approval, which approval shall not be unreasonably withheld, conditioned or delayed; provided, further that to the extent that the Deemed Approval Requirements are fully satisfied in connection with a Borrower request for Administrative Agent consent under this clause (ii) and Administrative Agent thereafter fails to respond, Administrative Agent’s approval shall be deemed given; (iii) shall not collect any of the Rents more than one (1) month in advance (other than Security Deposits); (iv) shall not execute any assignment of Borrower’s interest in the Leases or the Rents (except as contemplated by the Loan Documents); (v) shall not, without the Administrative Agent’s prior written consent, alter, modify or change any Lease so as to change the amount of or payment date for rent, change the expiration date, grant any option for additional space or term, materially reduce the obligations of the Tenant or increase the obligations of lessor, in each case, to the extent the same would, individually or in the aggregate, (A) cause any such Lease to violate Section 4.14(a)(i) through (iii) above or (B) have a Material Adverse Effect; and (vi) shall hold all Security Deposits in accordance with Legal Requirements in all material respects. Upon request, Borrower shall furnish Administrative Agent with executed copies of all Leases.
(c) Notwithstanding anything contained herein to the contrary, Borrower shall provide to Administrative Agent any information regarding renewal, extension, amendment, modification, waiver of provisions of, termination, rental reduction of, surrender of space of, or shortening of the term of, any Major Lease (or at Administrative Agent’s reasonable request any Lease) during the term of the Loan within fifteen percent (15%) days after the occurrence of any such event. Borrower further agrees to provide Administrative Agent with written notice of any Tenant under a Major Lease “going dark” under such Tenant’s Lease within fifteen (15) days after Borrower obtains knowledge that such Tenant “has gone dark”. Borrower agrees to provide Administrative Agent with written notice of any monetary or material non-monetary default under a Major Lease within fifteen (15) days after Borrower obtains knowledge of the total rentable square feet occurrence of any such event of default. Borrower’s failure to provide any of the aforesaid notices shall, at Administrative Agent’s option, constitute an Event of Default.
(d) Borrower shall notify Administrative Agent in writing, within two (2) Business Days following receipt thereof, of Borrower’s receipt of any Lease Termination Payment or other termination fee or payment paid by any Tenant under any Lease. During the Propertycontinuance of a Trigger Period, any Lease Termination Payment paid by any Tenant at Property but only to the extent that such Lease Termination Payment paid by such Tenant exceeds Five Hundred Thousand and No/100 Dollars ($500,000.00), shall be deposited into the Leasing Reserve Account to be held and disbursed in accordance with Section 8.3 hereof; and Borrower covenants and agrees that, until deposited in accordance herewith, Borrower shall hold any such termination fee or payment in trust for the benefit of Lenders.
Appears in 1 contract
Samples: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Leases and Rents. (a) Upon request, Borrower may enter into a shall furnish Agent with executed copies of all Leases then in effect. All renewals of Leases and all proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides leases shall provide for rental rates and terms comparable to existing local market rates and terms shall be arm’s length transactions with bona fide, independent third-party Tenants. Within ten (taking into account 10) days after the type and quality execution of the tenant) as a Lease or any renewals, amendments or modification of the date a Lease, Borrower shall deliver to Agent a copy thereof, together with Borrower’s certification that such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during or such renewal, amendment or modification) was entered into in accordance with the terms of this Agreement.
(b) Any Lease and any renewals, amendments or modification of a Lease (provided such Lease or Lease renewal, amendment or modification is not a Major Lease (or a formula renewal, amendment or other method modification to compute such rent, is provided for in the original a Major Lease)) that meets the following requirements may be entered into by Borrower without Agent’s prior consent: such Lease (i) provides for rental rates comparable to existing local market rates for similar properties and is otherwise on commercially reasonable terms, (ii) unless a subordination, non-disturbance and attornment agreement is an arms-length transaction with a bona fidedelivered pursuant to this Section 7.14, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) provides that such Lease is subject and subordinate to the Security Instrument and that the lessee thereunder agrees to will attorn to LenderLender and any purchaser at a foreclosure sale, (iii) is written substantially in accordance with the standard form of Lease which shall have been approved by Agent (subject to any commercially-reasonable changes made in the course of negotiations with the applicable Tenant), (iv) is not with an Affiliate of Borrower, Sponsor, Pledgor or any Guarantor, and (v) is written on does not contain any option to purchase, any right of first refusal to purchase, any right to terminate (except in the standard form event of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval destruction or condemnation of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied substantially all of the conditions Property) or any other terms which would cause a Material Adverse Effect. All other Leases (including Major Leases) and all renewals, amendments and modifications thereof (including, without limitation, any subletting or assignment thereunder not contemplated by the express terms of this Subsectionsuch Lease (other than any subletting or assignment which does not require
(c) Agent shall execute and deliver a Subordination, Non-Disturbance and Attornment Agreement on Agent’s then current standard form, or on such other form reasonably acceptable to Agent, to Tenants under future Major Leases approved by Agent promptly upon request with such commercially reasonable changes as may be requested by Xxxxxxx, from time to time, as are reasonably acceptable to Agent.
(bd) Borrower shall (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debtin all material respects in a commercially reasonable manner; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performedperformed in a commercially reasonable manner, provided, however, Borrower shall not terminate or accept a surrender of a Major Lease without Xxxxxx’s prior approval; (iviii) shall not collect any of the Rents and Profits more than one (1) month in advance (other than security deposits); (iv) not execute any assignment of lessor’s interest in the Leases or the Rents and Profits (except security deposits shall not be deemed Rents collected in advanceas contemplated by the Loan Documents); (v) shall not execute not, without Xxxxxx’s consent, alter, modify or change any other assignment Lease so as to change the amount of or payment date for rent, change the expiration date, grant any option for additional space or term, materially reduce the obligations of the lessee or increase the obligations of lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting hold all security deposits under any all Leases not in accordance with their terms, without the prior written consent of LenderApplicable Law.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(de) Notwithstanding anything contained herein to the contrary, Borrower shall notnot willfully withhold from Agent or Lender any information regarding renewal, without the prior written consent extension, amendment, modification, waiver of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminatetermination, reduce rents underrental reduction of, accept a surrender of space underof, or shorten shortening of the term of, any Major Lease. The Lease during the term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the PropertyLoan. Xxxxxxxx further agrees to provide Agent with written notice of a Tenant “going dark” under such Xxxxxx’s Lease within five (5) Business Days after Borrower becomes aware that such Tenant “goes dark” and Borrower’s failure to provide such notice shall constitute an Event of Default.
Appears in 1 contract
Samples: Loan Agreement (CaliberCos Inc.)
Leases and Rents. (a) Borrower may enter into a proposed Lease (including All Leases and all renewals of Leases executed after the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease date hereof shall (i) provides provide for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease)similar properties, (ii) is an arms-length transaction be on commercially reasonable terms with a bona fideunaffiliated, independent third party tenantparties (unless otherwise consented to by Lender) which consent shall not be unreasonably withheld, delayed or conditioned), (iii) does not have provide that such Lease is subordinate to the applicable Security Instrument and that the lessee will attorn to Lender and any purchaser at a materially adverse effect on the value foreclosure sale (subject to any rights of the Property taken as a whole, Tenant under a SNDA) and (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lendernot contain any terms which would have a Material Adverse Effect. All proposed Leases which do not satisfy and all renewals, amendments and modifications thereof executed after the requirements set forth in this Subsection 3.8(a) date hereof shall be subject to the Lender’s prior approval, which approval of Lender and its counselshall not be unreasonably withheld, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectiondelayed or conditioned.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debtin a commercially reasonable manner; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performedperformed in a commercially reasonable manner, provided, however, Borrower shall not terminate or accept a surrender of a Lease without Lender’s prior approval, which approval shall not be unreasonably withheld, delayed or conditioned; (iviii) shall not collect any of the Rents more than one (1) month in advance (except other than security deposits deposits); (iv) shall not be deemed execute any assignment of lessor’s interest in the Leases or the Rents collected in advance(except as contemplated by the Loan Documents); (v) shall not, without Lender’s prior written consent, which consent shall not execute be unreasonably withheld, delayed or conditioned, alter, modify or change any other assignment Lease so as to change the amount of or payment date for rent, change the expiration date, grant any option for additional space or term, materially reduce the obligations of the lessee or increase the obligations of lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting hold all security deposits under any all Leases not in accordance with their termsLegal Requirements. Upon written request, without the prior written consent Borrower shall furnish Lender with executed copies of Lenderall Leases.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall notnot willfully withhold from Lender any information regarding renewal, without the prior written consent extension, amendment, modification, waiver of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminatetermination, reduce rents underrental reduction of, accept a surrender of space underof, or shorten shortening of the term of, any Major Lease during the term of the Loan. Borrower further agrees to provide Lender with written notice of a Tenant “going dark” under such Tenant’s Lease within thirty (30) days after such Tenant “goes dark” and Borrower’s failure to provide such notice shall constitute an Event of Default.
(d) Borrower shall notify Lender in writing, within two (2) Business Days following receipt thereof, of Borrower’s receipt of any early termination fee or payment or other termination fee or payment paid by any Tenant under any Lease, and Borrower further covenants and agrees that Borrower shall hold any such termination fee or payment in trust for the benefit of Lender and that any use of such termination fee or payment shall be subject in all respects to Lender’s prior written consent in Lender’s sole discretion (which consent may include, without limitation, a requirement by Lender that such termination fee or payment be placed in reserve with Lender to be disbursed by Lender for tenant improvement and leasing commission costs with respect to the applicable Individual Property and/or for payment of the Debt or otherwise in connection with the Loan evidenced by the Note and/or the Properties, as so reasonably determined by Lender).
(e) Upon written request from Borrower and provided no Event of Default exists, Lender shall enter into a subordination, non-disturbance and attornment agreement, on a commercially reasonable form then currently used or accepted by Lender (an “SNDA”) with any Tenant (other than an Affiliate of Borrower) entering into any Lease provided Lender has approved such Lease. The term "Major Lease" All reasonable costs and expenses incurred by Lender in connection with the negotiation, preparation, execution and delivery of any such agreement, including, without limitation, reasonable fees and disbursements of legal counsel, shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Propertybe paid by Borrower.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital Trust III, Inc.)
Leases and Rents. (a) Borrower may The Property is subject to the Brookdale Master Lease. SPTBROOK shall not enter into a proposed any other Lease (including of the renewal or extension of an existing Lease (a "Renewal Lease")) Property without the prior written consent of Lender. As used herein, provided such proposed Lease or Renewal Lease (i) provides for rental rates the term "TENANT" shall mean and terms comparable to existing local market rates include the tenant and terms (taking into account the type and quality any guarantor of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of 's obligations under a Renewal Lease, including, without limitation, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument Brookdale Master Tenant and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by LenderBrookdale Lease Guarantors. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower SPTBROOK (i) shall observe and perform all the obligations imposed upon the lessor under the Leases (including, without limitation, the Brookdale Master Lease and the Brookdale Lease Guaranty) and shall not do or permit to be done anything to impair the value of any of the Leases Lease as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower SPTBROOK shall send or receive thereunderunder any Lease; (iii) shall enforce in a commercially reasonable manner all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant Tenant thereunder to be observed or performed, ; (iv) shall not collect any of the Rents more than one (1) month in advance (except provided that a security deposits deposit shall not be deemed Rents rent collected in advance); (v) shall not execute any other assignment of the lessor's interest in any Lease or Rents; (vi) shall not (A) materially alter, modify or change any of the Leases terms of any Lease without the prior written consent of Lender or (B) cancel or terminate any Lease (including any lease guaranty) or transfer or suffer or permit a conveyance or transfer of the RentsLand or of any interest therein so as to effect a merger of the estates and rights of, or a termination or diminution of the obligations of, Tenants thereunder; and (vivii) shall not consent to any assignment of or subletting under any Leases Lease not in accordance with their termsthe terms thereof, without the prior written consent of Lender.
(c) Borrower may. In the event that the Brookdale Master Lease is replaced by another Lease which, without the consent by express agreement of Lender, amend, modify or waive is superior to the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements lien of this Security Instrument and any subordinate agreement binding upon Lender or with respect to which a subordination, non-disturbance and attornment agreement is entered into by the Tenant under such Lease. A termination of a , SPTBROOK and Lender, the express references to the Brookdale Master Lease with a tenant who is (and specific sections, articles and provisions thereof) and the Brookdale Master Tenant in default beyond applicable notice Sections 3.3(i), 3.4(b), 3.5, 3.11 and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection 4.3(d) hereof shall be subject deemed to refer to such replacement Lease (and the corresponding sections, articles and provisions thereof) and the Tenant thereunder to the prior approval of extent and as the Lender and its counsel, which approval shall not be unreasonably withheld or delayedmay, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendmentsits option and in its absolute discretion, modifications so agrees with such Tenant and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this SubsectionSPTBROOK.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 1 contract
Samples: Revolving Loan Agreement (Senior Housing Properties Trust)
Leases and Rents. (a) 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. Upon request, Borrower shall furnish Lender with executed copies of all Leases. No material changes may enter into a proposed Lease (including be made to the renewal or extension of an existing Lease (a "Renewal Lease")) Lender-approved standard lease without the prior written consent of Lender. In addition, provided such all renewals of Leases and all proposed Lease or Renewal Lease (i) provides Leases shall provide for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an shall be arms-length transaction transactions with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lendertenants. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(aand renewals of existing Leases (other than residential Leases relating to a residential multifamily property) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower All Leases excluding the Ground Lease shall promptly deliver to Lender copies of all Leases which provide that they are entered into pursuant subordinate to this Subsection together with Security Instrument and that the lessee agrees to attorn to Lender. Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases (except that with respect to the Ground Lease, it shall observe and perform all of the obligations imposed upon lessee) and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performed, short of termination thereof excluding the Ground Lease; provided however, with respect to multifamily residential property, a residential Lease may be terminated in the event of a default by the tenant thereunder; (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; (vi) shall not alter, modify or change the terms of any Leases without the prior written consent of Lender, or cancel or terminate any Leases or accept a surrender thereof or convey or transfer or suffer or permit a conveyance or transfer of the Land or of any interest therein so as to effect a merger of the estates and rights of or a termination or diminution of the obligations of, lessees thereunder; (vii) shall not alter, modify or change the terms of any guaranty, letter of credit or other credit support with respect to any of the Leases (the "Lease Guaranty") or cancel or terminate such Lease Guaranty without the prior written consent of Lender; and (viviii) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(cb) Borrower may, without the consent of Lender, amend, modify or waive Notwithstanding the provisions of any Lease or terminateSubsection 3.7(a) above, reduce rents under, accept a surrender renewals of existing Leases and Leases for commercial space under, or shorten the term of, any Lease for in-line stores (including any guaranty, letter of credit or other credit support with respect theretoas determined by Lender) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender provided all of the following conditions are satisfied: (i) the rental income pursuant to the renewal or proposed Lease is not more than ten percent (10%) of the total rental income for the in-line stores, (ii) the renewal or proposed Lease covers less than ten percent (10%) of the in-line store space, in the aggregate, (iii) the renewal or proposed Lease shall have a lease term not to exceed ten (10) years including options to renew, (iv) no rent credits, free rents or concessions in excess of one (1) month for each two (2) years of lease term (not to exceed three (3) months in the aggregate) have been granted under the renewal or proposed Lease, (v) the renewal or proposed Lease shall provide for rental rates and terms comparable to existing local market rates and terms, (vi) the renewal or proposed Lease shall be an arms-length transaction with a bona fide, independent third party tenant, (vii) the renewal or proposed Lease is subject and subordinate to the Security Instrument and the lessee thereunder shall have agreed to attorn to Lender, (viii) the renewal or proposed Lease is on the standard form of lease approved by Lender, and (ix) the renewal or proposed Lease shall satisfy other criteria as shall be required by Lender in its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expensesole discretion. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers all Leases which are entered into pursuant to this Subsection (b) together with Borrower's certification that it has satisfied all of the conditions of the preceding sentence within thirty (30) days after the execution of the Lease. Notwithstanding the provisions above, to the extent Lender's prior written approval is required pursuant to this SubsectionSection 3.7, Lender shall, with respect to such proposed Leases and/or modifications, amendments or terminations of existing Leases, have eleven (11) Business Days (as defined in Article 16) from receipt of such written request and any and all required material information and documentation relating thereto in which to approve or disapprove such material information and documentation, provided, such request to Lender is marked in bold lettering with the following language: "LENDER'S RESPONSE IS REQUIRED WITHIN ELEVEN (11) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MORTGAGE AND SECURITY AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER" and the envelope containing the request must be marked "PRIORITY". In the event Lender fails to respond to the information and proposed documentation within such time, Lender's approval shall be deemed given. Borrower shall be required to provide Lender with such material information and documentation as may be required by Lender, in its sole discretion, including without limitation, lease comparables and other market information as required by Lender. If Lender disapproves any new Leases, or any amendment, modification or termination of any existing Leases, Lender shall provide Borrower with a written explanation of its disapproval.
(dc) Notwithstanding anything contained herein Upon the occurrence of an Event of Default, to the contraryextent permitted by law, Borrower shall notpromptly deposit with Lender any and all monies representing security deposits under the Leases, without whether or not Borrower actually received such monies (the prior written consent "Security Deposits"). Lender shall hold the Security Deposits in accordance with the terms of Lenderthe respective Lease, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept and shall only release the Security Deposits in order to return a surrender tenant's Security Deposit to such tenant if such tenant is entitled to the return of space under, or shorten the term of, any Major Security Deposit under the terms of the Lease and is not otherwise in default under the Lease. The term "Major Lease" To the extent required by Applicable Laws (defined below), Lender shall mean any Lease between hold the Security Deposits in an interest bearing account selected by Lender in its sole discretion. In the event Lender is not permitted by law to hold the Security Deposits, Borrower shall deposit the Security Deposits into an account with a federally insured institution as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Propertyapproved by Lender.
Appears in 1 contract
Samples: Mortgage and Security Agreement (Cedar Income Fund LTD /Md/)
Leases and Rents. (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease ("a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expenseexpense such approval not to be unreasonably withheld, delayed or conditioned. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month calendar quarter in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting otherwise not permitted under any Leases not in accordance with their termsLeases, without the prior written consent of Lender. Provided no Event of Default has occurred and is continuing, Borrower may waive, amend and/or supplement any financial covenants of Foster Wheeler contained in the Foster Wheeler Lease withxxx xxx xxxxx written consent of Xxxxxx.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising which lease is (i) approved by Lender, in form and substance, in its sole discretion using prudent business judgment, (ii) at comparable terms with the Foster Wheeler Lease and (iii) which demises in the aggregate more than aggrexxxx xxxx xxxx the lesser of (ia) 15,000 rentable square feet or (iib) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 1 contract
Samples: Leasehold Mortgage and Security Agreement (Corporate Property Associates 15 Inc)
Leases and Rents. (a) Borrower In connection with the Loan, Grantor does hereby grant, bargain, sell, convey, assign, and set over and has absolutely and unconditionally granted, bargained, sold, conveyed, assigned and set over unto Beneficiary all of Grantor's right, title and interest in all current and future Leases and Rents, including, without limitation, the Operating Lease and all Rents derived therefrom, it being intended by Grantor that such assignment constitutes a present, absolute assignment and not an assignment for additional security only. Such assignment to Beneficiary shall not be construed to bind Beneficiary to the performance of any of the covenants, conditions or provisions contained in any such Lease or otherwise to impose any obligation upon Beneficiary. Grantor shall execute and deliver to Beneficiary such additional instruments, in form and substance reasonably satisfactory to Beneficiary, as may enter into hereafter be requested by Beneficiary to further evidence and confirm such assignment. Nevertheless, subject to the terms of this Section, Beneficiary has granted to Grantor a proposed Lease (including revocable license to operate and manage the renewal Property and to collect the Rents. Grantor shall hold the Rents, or extension a portion thereof sufficient to discharge all current sums due on the Debt, in trust for the benefit of Beneficiary for use in the payment of such sums. Upon the occurrence of an existing Lease Event of Default, the license granted to Grantor shall automatically be revoked, and Beneficiary shall immediately be entitled to possession of all Rents, whether or not Beneficiary enters upon or takes control of the Property. Beneficiary is hereby granted and assigned by Grantor the right, at its option, upon revocation of the license granted herein, to enter upon the Property in person, by agent or by court-appointed receiver to collect the Rents. Any Rents collected after revocation of the license may be applied toward payment of the Debt in such priority and proportions as Beneficiary in its discretion shall deem appropriate.
(a "Renewal Lease")b) without the prior written consent Grantor shall furnish Beneficiary with executed copies of Lender, provided such all Leases. All renewals of Leases and all proposed Lease or Renewal Lease (i) provides Leases shall provide for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an shall be arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject transactions and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior written approval of Lender and its counselBeneficiary (which approval shall not be unreasonably withheld, at Borrower's expense. Borrower shall promptly deliver to Lender copies of conditioned or delayed) for all Leases which not including the Operating Lease. All Leases shall provide that they are entered into pursuant subordinate to this Subsection together with Borrower's certification Deed of Trust and that it has satisfied all of the conditions of this Subsection.
lessee agrees to attorn to Beneficiary (bprovided, as to the Operating Lease only, that Beneficiary agrees not to disturb lessee’s possession). Grantor shall: (A) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (iiB) upon request, shall promptly send to Beneficiary copies to Lender of all notices of default which Borrower Grantor shall send or receive thereunder; (iiiC) shall enforce all of the material terms, covenants and conditions contained in the Leases upon (other than minor waivers in the ordinary course of business in all Leases not including the Operating Lease) on the part of the tenant lessee thereunder to be observed or performed, short of termination thereof; (ivD) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (vE) shall not execute any other assignment of the lessor's interest in the Leases or Rents; (F) other than de minimis non-financial amendments, not alter, modify or change the terms of the Leases without the prior written consent of Beneficiary, or, except if a lessee is in default, cancel or terminate the Leases or accept a surrender thereof or convey or transfer or suffer or permit a conveyance or transfer of the Property or of any interest therein so as to effect a merger of the estates and rights of, or a termination or diminution of the obligations of, lessees thereunder; provided, however, that any Lease (not including the Operating Lease) may be canceled if at the time of the cancellation thereof a new Lease is entered into with a bona fide, independent third-party on substantially the same terms or more favorable terms as the canceled Lease; (G) not alter, modify or change the terms of any guaranty of the Leases or cancel or terminate such guaranty without the Rentsprior written consent of Beneficiary (which approval shall not be unreasonably withheld, conditioned or delayed for all such guaranties); and (viH) shall not consent to any assignment of or subletting under any the Leases (not including the Operating Lease) not in accordance with their terms, without the prior written consent of LenderBeneficiary (which consent shall not be unreasonably withheld, conditioned or delayed for all such Leases not including the Operating Lease); and (I) execute and deliver at the request of Beneficiary all such further assurances, confirmations and assignments in connection with the Property as Beneficiary shall from time to time request.
(c) Borrower mayAll security deposits of lessees, whether held in cash or any other form, shall not be commingled with any other funds of Grantor and, if cash, shall be deposited by Grantor into a separate "Security Deposits Account." Any bond or other instrument which Grantor is permitted to hold in lieu of cash security deposits under any applicable legal requirements shall be maintained in full force and effect unless replaced by cash deposits as hereinabove described, shall be issued by an institution satisfactory to Beneficiary, shall, if permitted pursuant to any legal requirements, name Beneficiary as payee or mortgagee thereunder (or at Beneficiary's option, be fully assignable to Beneficiary) and shall, in all respects, comply with any applicable legal requirements and otherwise be reasonably satisfactory to Beneficiary. Grantor shall, upon request, provide Beneficiary with evidence reasonably satisfactory to Beneficiary of Grantor's compliance with the foregoing. Following the occurrence and during the continuance of any Event of Default, Grantor shall, upon Beneficiary's request, if permitted by any applicable legal requirements, turn over to Beneficiary the security deposits (and any interest theretofore earned thereon) with respect to all or any portion of the Property, to be held by Beneficiary subject to the terms of the Leases.
(d) Grantor makes the following additional covenants with respect to the Operating Lease:
(i) Grantor shall (x) diligently perform and observe all of the terms, covenants and conditions of the Operating Lease on the part of Grantor, as landlord thereunder, to be performed and observed prior to the expiration of any applicable grace period therein provided, (y) promptly notify Beneficiary of the giving of any notice by Tenant, as tenant thereunder, of any default by Grantor in the performance or observance of any of the terms, covenants or conditions of the Operating Lease on the part of Grantor, as landlord thereunder, to be performed or observed and deliver to Beneficiary a true copy of each such notice and (z) diligently enforce all of the terms, covenants and conditions contained in the Operating Lease which are to be performed by Tenant thereunder. Grantor shall not, without the prior consent of LenderBeneficiary, amendin its sole discretion (regarding rent, modify other economic terms and other material Operating Lease provisions, otherwise in its reasonable discretion), surrender its interest in the Operating Lease, consent to an assignment of Tenant's interest under the Operating Lease, or waive terminate or cancel the Operating Lease or modify, change, supplement, alter or amend the Operating Lease, in any respect, either orally or in writing, and Grantor hereby assigns to Beneficiary, as further security for the payment of the Debt, all of the rights, privileges and prerogatives of Grantor, as landlord under the Operating Lease, to consent to an assignment of Tenant's interest under the Operating Lease, or to terminate, cancel, modify, change, supplement, alter or amend the Operating Lease in any respect, and any such assignment of Tenant's interests thereunder, or termination, cancellation, modification, change, supplement, alteration or amendment of the Operating Lease in any material respect without the prior consent of Beneficiary shall be void and of no force and effect. If Grantor shall receive notice from Tenant of an event of default in the performance or observance of any term, covenant or condition of the Operating Lease on the part of Grantor, as landlord thereunder, to be performed or observed, then, without limiting the generality of the other provisions of this Deed of Trust, and without waiving or releasing Grantor from any of its obligations hereunder, Beneficiary shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Operating Lease on the part of Grantor, as landlord thereunder, to be performed or observed or to be promptly performed or observed on behalf of Grantor, to the end that the rights of Grantor in, to and under the Operating Lease shall be kept unimpaired and free from default, even though the existence of such event of default or the nature thereof be questioned or denied by Grantor or by any party on behalf of Grantor. Beneficiary will, prior to the making of any such payment, the performance of any such act, or the taking of any such action in accordance with the previous sentence, notify Grantor in writing, consult with Grantor in connection therewith, and afford Grantor a reasonable opportunity to address such matter with Tenant, not to exceed ten (10) business days. In any such event, subject to the rights of tenants, subtenants and other occupants under the Leases, Beneficiary and any person designated by Beneficiary shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking any such action. Beneficiary may pay and expend such sums of money as Beneficiary reasonably deems necessary for any such purpose and upon so doing shall be subrogated to any and all rights of the tenant under the Operating Lease. Grantor hereby agrees to pay to Beneficiary promptly after demand, which demand shall include documentation describing Beneficiary's expenditures in reasonable detail, all such sums so paid and expended by Beneficiary, together with interest thereon from the day of such payment until paid at the Default Rate (as defined in the Note). All sums so paid and expended by Beneficiary and the interest thereon shall be secured by the legal operation and effect of this Deed of Trust.
(e) Beneficiary's acceptance of this assignment of the Leases shall not be deemed to constitute Beneficiary a "mortgagee in possession," nor obligate Beneficiary to appear in or defend any proceeding relating to the Leases or to the Property, or to take any action hereunder, expend any money, incur any expenses, or perform any obligation or liability under the Leases, or assume any obligation for any deposit delivered to Grantor by any tenant and not delivered to and accepted by Beneficiary as such. Beneficiary shall not be liable for any injury or damage to person or property in or about the Property due solely to Beneficiary's acceptance of this assignment, or for Beneficiary's failure to collect or to exercise diligence in collecting Rents, but shall be accountable only for Rents that it shall actually receive. Neither the assignment of Leases and Rents, nor enforcement of Beneficiary's rights regarding the Leases and Rents (including collection of Rents) nor possession of the Property by Beneficiary nor Beneficiary's consent to or approval of any Lease (nor all of the same), shall render Beneficiary liable on any obligation under or terminate, reduce rents under, accept a surrender of space underwith respect to any Lease or constitute affirmation of, or shorten the term ofany subordination to, any Lease, occupancy, use or option. If Beneficiary seeks or obtains any judicial relief regarding Rents or Leases, the same shall in no way prevent the concurrent or subsequent employment of any other appropriate rights or remedies nor shall same constitute any election of judicial relief for any foreclosure or any other purpose. Beneficiary neither has nor assumes any obligations as lessor or landlord with respect to any Lease. The rights of Beneficiary under this Section 9 shall be cumulative of all other rights of Beneficiary under the Loan Documents or otherwise.
(f) Grantor acknowledges that this Deed of Trust is a "Mortgage" as defined in the Operating Lease and that pursuant to Article XXXIV of the Operating Lease (w) Tenant will receive the same notice, if any, given to Grantor by Beneficiary following an Event of Default, acceleration of the Debt or any foreclosure sale relating to this Deed of Trust, (x) Tenant will be permitted to cure any such Default on Grantor's behalf within applicable cure periods (in which event Tenant shall be reimbursed by Grantor for all costs relating to such cure, including without limitation, reasonable attorney's fees), and (y) Tenant will be permitted to appear by its representative and to bid at any guarantyforeclosure sale relating to this Deed of Trust.
(g) Notwithstanding Section 10(t) hereof, letter Grantor may enter into certain operating leases and capital leases of credit personal property, hotel management systems or office equipment, including, but not limited to: copiers, computers, fax machines and telephone equipment or other credit support with respect thereto) provided that such action (taking into accountsubordinate financing, copies of which have been previously delivered to Beneficiary, of equipment used in the ordinary course of business in the operation of hotels and which, in the case of aggregate, have a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) payment stream that does not exceed _________ Dollars ($ ) per year, and in the aggregate over the term of all such leases and subordinate financing, have a materially adverse effect on payment stream that does not exceed _________ Dollars ($ ) (the value "FF&E Financing"). Grantor shall have the right to request approval of an increase in the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise foregoing amounts in compliance connection with the requirements replacement/renewal of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendmentoperating leases, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counselcapital leases and/or equipment, which approval shall not be unreasonably withheld withheld, conditioned or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 1 contract
Samples: Deed of Trust (Equity Inns Inc)
Leases and Rents. (a) Upon request, Borrower may enter into a shall furnish Lender with executed copies of all Leases then in effect. All renewals of Leases and all proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides leases shall provide for rental rates and terms comparable to existing local market rates and terms shall be arm’s length transactions with bona fide, independent third-party Tenants. Within ten (taking into account 10) days after the type and quality execution of the tenant) as a Lease or any renewals, amendments or modification of the date a Lease, Borrower shall deliver to Lender a copy thereof, together with Borrower’s certification that such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during or such renewal, amendment or modification) was entered into in accordance with the terms of this Agreement.
(b) Any Lease and any renewals, amendments or modification of a Lease (provided such Lease or Lease renewal, amendment or modification is not a Major Lease (or a formula renewal, amendment or other method modification to compute such rent, is provided for in the original a Major Lease)) that meets the following requirements may be entered into by Borrower without Lender’s prior consent: such Lease (i) provides for rental rates comparable to existing local market rates for similar properties and is otherwise on commercially reasonable terms, (ii) is an arms-length transaction with a bona fide, independent third party tenantintentionally omitted, (iii) does not have a materially adverse effect on is written substantially in accordance with the value standard form of Lease delivered to Lender in connection with the closing of the Property taken as a wholeLoan, or the then-current standard form of Lease if such form shall have been approved by Lender (in either case, subject to any commercially-reasonable changes made in the course of negotiations with the applicable Tenant), (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lendernot with an Affiliate of Borrower or any Guarantor, and (v) is written on does not contain any option to purchase, any right of first refusal to purchase, any right to terminate (except in the standard form event of lease approved by Lenderthe destruction or condemnation of substantially all of the Property) or any other terms which would cause a Material Adverse Effect. All proposed other Leases which do (including Major Leases) and all renewals, amendments and modifications thereof (including, without limitation, any subletting or assignment thereunder not satisfy contemplated by the requirements set forth in this Subsection 3.8(aexpress terms of such Lease (other than any subletting or assignment that does not require Borrower’s consent under such Lease)) executed after the date hereof shall be subject to the Lender’s prior approval, which approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectionnot be unreasonably withheld or delayed.
(bc) Lender shall execute and deliver a Subordination, Non-Disturbance and Attornment Agreement on Lender’s then current standard form to Tenants under future Major Leases approved by Lender promptly upon request with such commercially reasonable changes as may be requested by Tenants, from time to time, as are reasonably acceptable to Lender. Lender’s execution of a Subordination, Non-Disturbance and Attornment Agreement which is not in compliance with the foregoing sentence shall be at Lender’s sole discretion and subject to such additional conditions as Lender shall reasonably determine.
(d) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debtin all material respects in a commercially reasonable manner; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performedperformed in a commercially reasonable manner, provided, however, Borrower shall not terminate or accept a surrender of a Major Lease without Lender’s prior approval; (iviii) shall not collect any of the Rents more than one (1) month in advance (except other than security deposits deposits); (iv) shall not be deemed execute any assignment of lessor’s interest in the Leases or the Rents collected in advance(except as contemplated by the Loan Documents); (v) shall not execute not, without Lender’s consent, alter, modify or change any other assignment Lease so as to change the amount of or payment date for rent, change the expiration date, grant any option for additional space or term, materially reduce the obligations of the lessee or increase the obligations of lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting hold all security deposits under any all Leases not in accordance with their terms, without the prior written consent of LenderApplicable Law.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(de) Notwithstanding anything contained herein to the contrary, Borrower shall notnot willfully withhold from Lender any information regarding renewal, without the prior written consent extension, amendment, modification, waiver of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminatetermination, reduce rents underrental reduction of, accept a surrender of space underof, or shorten shortening of the term of, any Major LeaseLease during the term of the Loan. The term "Major Lease" Borrower’s delivery of the certified rent roll required pursuant to Section 4.12 hereof shall mean not, in and of itself, satisfy the requirements of this subsection (e).
(f) Borrower shall notify Lender in writing, within two (2) Business Days following receipt thereof, of Borrower’s receipt of any termination fee or payment (“Lease Event Payment”) paid by any Tenant under any Lease between in consideration of any termination, modification or amendment or settlement of any Lease or any release or discharge of any Tenant under any Lease from any obligation thereunder (a “Lease Event”). Borrower as landlord further covenants and a third party as tenant demising in the aggregate more than the lesser of agrees that (i) 15,000 rentable square feet or Borrower shall hold any such Lease Event Payment in trust for the benefit of Lender and (ii) fifteen percent (15%A) in the event such Lease Event Payment is less than $50,000 and such Lease Event does not have a Material Adverse Effect, and provided there is no Event of Default or Cash Trap Event Period then continuing, such Lease Event Payment shall be payable to Borrower or (B) in the total rentable square feet at event such Lease Event Payment equals or exceeds $50,000, such Lease Event has a Material Adverse Effect, or there is an Event of Default or Cash Trap Event Period then continuing, such Lease Event Payment shall be placed by Borrower in reserve with Lender, to be disbursed by Lender for tenant improvement and leasing commission costs with respect to the Property.
(g) Notwithstanding anything to the contrary contained herein, to the extent Lender’s prior approval is required for any leasing matters set forth in this Section 4.14, Lender shall have ten (10) Business Days from receipt of written request and all required information and documentation relating thereto in which to approve or disapprove such matter, provided that such request to Lender is marked in bold lettering with the following language: “LENDER’S RESPONSE IS REQUIRED WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER” and the envelope containing the request must be marked “PRIORITY”. In the event that Lender fails to respond to the leasing matter in question within such time, Lender’s approval shall be deemed given for all purposes. Borrower shall provide Lender with such information and documentation as may be reasonably required by Lender, including, without limitation, lease comparables and other market information as reasonably required by Lender. For purposes of clarification, Lender’s requesting additional and/or clarified information, in addition to approving or denying any request (in whole or in part), shall be deemed a response by Lender for purposes of the foregoing.
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Leases and Rents. (a) Borrower may enter into a proposed As part of the consideration for the Secured Obligations, Mortgagor hereby absolutely and unconditionally assigns and transfers to Mortgagee all of Mortgagor’s right, title and interest in and to the Leases and the Rents, including those now due, past due or to become due by virtue of any Lease (including for the renewal occupancy or extension use of all or any part of the Real Estate. Mortgagor hereby authorizes Mortgagee or Mortgagee’s agents to collect the Rents and hereby directs such tenants, lessees and licensees of the Real Estate to pay the Rents to Mortgagee or Mortgagee’s agents; provided, however, that prior to written notice given by Mortgagee to Mortgagor of any Event of Default by Mortgagor, Mortgagor shall collect and receive the Rents as trustee for the benefit of Mortgagee, to apply the Rents so collected to the Secured Obligations, to the extent then due, with the balance, so long as no Event of Default has occurred, to the account of Mortgagor. Mortgagor agrees that each and every tenant, lessee and licensee of the Real Estate shall pay, and hereby irrevocably authorizes and directs each and every tenant, lessee and licensee of the Real Estate to pay, the Rents to Mortgagee or Mortgagee’s agents on Mortgagee’s written demand therefor without any obligation on the part of said tenant, lessee or licensee to inquire as to the existence of an existing Lease (a "Renewal Lease")) without Event of Default and notwithstanding any notice or claim of Mortgagor to the prior written consent of Lendercontrary, provided such proposed Lease and Mortgagor agrees that Mortgagor shall have no right or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party claim against said tenant, (iii) does not have a materially adverse effect on the value lessee or licensee for or by reason of the Property taken as a whole, (iv) is subject and subordinate any Rents paid to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is Mortgagee following receipt of such written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectiondemand.
(b) Borrower (i) shall observe Mortgagor hereby covenants that Mortgagor has not executed any prior assignment of the Leases or the Rents, that Mortgagor has not performed, and perform all will not perform, any acts or has not executed, and will not execute, any instruments which would prevent Mortgagee from exercising the obligations imposed upon the lessor under rights as holder of the Leases and shall not do Rents under this Mortgage, and that at the time of execution of this Mortgage, there has been no anticipation or permit to be done anything to impair the value prepayment of any of the Leases as security Rents for more than one (1) month prior to the Debt; (ii) upon request, shall promptly send copies to Lender due dates of all notices such Rents. Mortgagor further covenants that Mortgagor will not hereafter collect or accept payment of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month prior to the due dates of such Rents.
(c) Mortgagor agrees that neither the foregoing assignment of Leases and Rents nor the exercise of any of Mortgagee’s rights and remedies under Paragraph 21 hereof shall be deemed to make Mortgagee a mortgagee-in-possession or otherwise responsible or liable in advance any manner with respect to the Leases, the Real Estate or the use, occupancy, enjoyment or operation of all or any portion thereof, unless and until Mortgagee, in person or by agent, assumes actual possession thereof. Nor shall the appointment of any receiver for the Real Estate by any court at the request of Mortgagee or by agreement with Mortgagor, or the entering into possession of any part of the Real Estate by such receiver, be deemed to make Mortgagee a mortgagee-in-possession or otherwise responsible or liable in any manner with respect to the Leases, the Real Estate or the use, occupancy, enjoyment or operation of all or any portion thereof.
(except security deposits d) If Mortgagee or a court-appointed receiver enters upon, takes possession of and maintains control of the Real Estate pursuant to this Mortgage, all Rents thereafter collected shall be applied first to the costs of taking control of and managing the Real Estate and collecting the Rents, including, but not limited to, reasonable attorneys’ fees actually incurred, receiver’s fees, premiums on receiver’s bonds, costs of repairs to the Real Estate, premiums on insurance policies, Impositions and other charges on the Real Estate, and the costs of discharging any obligation or liability of Mortgagor as landlord, lessor or licensor of the Real Estate and then to the Secured Obligations. Mortgagee or the receiver shall have access to the books and records used in the operation and maintenance of the Real Estate and shall be liable to account only for those Rents actually received. Mortgagee shall not be deemed liable to Mortgagor, anyone claiming under or through Mortgagor or anyone having an interest in the Real Estate by reason of anything done or left undone by Mortgagee. If the Rents are not sufficient to meet the costs of taking control of and managing the Real Estate and collecting the Rents, any monies expended by Mortgagee for such purposes shall become a portion of the Secured Obligations. Unless Mortgagee and Mortgagor agree in writing to other terms of payment, such amounts shall be payable upon notice from Mortgagee to Mortgagor requesting payment thereof and shall bear interest from the date of disbursement at the default rate stated in the Note unless payment of interest at such rate would be contrary to applicable law, in which event such amounts shall bear interest at the highest rate which may be collected in advance); (v) from Mortgagor under applicable law. The entering upon and taking possession of and maintaining of control of the Real Estate by Mortgagee or the receiver and the application of Rents as provided herein shall not execute cure or waive any Event of Default or invalidate any other assignment right or remedy of Mortgagee hereunder.
(e) Mortgagor will not enter into any Lease of all or any portion of the lessor's interest Real Estate unless such Lease shall be upon a form of lease previously approved by Mortgagee; provided however that after any Event of Default shall have occurred hereunder and until such time as such Event of Default has either been cured with a written consent of Mortgagee or the Event of Default has been waived in writing by Mortgagee, Mortgagor will not enter into any Lease of all or any portion of the Leases Real Estate or amend, supplement or otherwise modify, or terminate or cancel, or accept the Rents; and (vi) shall not surrender of, or consent to any the assignment of or subletting under of, or grant any Leases not in accordance with their termsconcessions to or waive the performance of any obligations of any tenant, lessee or licensee under, any now existing or future Lease of the Real Estate, without the prior written consent of LenderMortgagee. Mortgagor, at Mortgagee’s request, shall furnish Mortgagee with executed copies of all Leases hereafter made of all or any part of the Real Estate, and all Leases now or hereafter entered into will be in form and substance subject to the approval of Mortgagee. Upon Mortgagee’s request, Mortgagor shall make a separate and distinct assignment to Mortgagee, as additional security, of all Leases hereafter made of all or any part of the Real Estate.
(cf) Borrower mayUpon or at any time after the occurrence of an Event of Default, Mortgagee shall have the right to proceed in its own name or in the name of Mortgagor in respect of any claim, suit, action or proceeding relating to the rejection of any Lease, including, without limitation, the consent right to file and prosecute, to the exclusion of LenderMortgagor, amendany proofs of claim, modify complaints, motions, applications, notices and other documents, in any case in respect of the lessee under such Lease under the Bankruptcy Code.
(g) If there shall be filed by or waive against Mortgagor a petition under the provisions Bankruptcy Code, and Mortgagor, as lessor under any Lease, shall determine to reject such Lease pursuant to Section 365(a) of the Bankruptcy Code, then Mortgagor shall give Mortgagee not less than ten (10) days’ prior notice of the date on which Mortgagor shall apply to the bankruptcy court for authority to reject the Lease. Mortgagee shall have the right, but not the obligation, to serve upon Mortgagor within such ten-day period a notice stating that (i) Mortgagee demands that Mortgagor assume and assign the Lease to Mortgagee pursuant to Section 365 of the Bankruptcy Code and (ii) Mortgagee covenants to cure or provide adequate assurance of future performance under the Lease. If Mortgagee serves upon Mortgagor the notice described in the preceding sentence, Mortgagor shall not seek to reject the Lease and shall comply with the demand provided for in clause (i) of the receding sentence within thirty (30) days after the notice shall have been given, subject to the performance by Mortgagee of the covenant provided for in clause (ii) of the preceding sentence.
(h) Nothing in this Mortgage shall be construed to impose upon Mortgagee any obligation or responsibility of Mortgagor, to any Lessee under any of the Leases or to any other third party, for the control, care, management or repair of the Real Estate, the performance of any Lease or terminate, reduce rents under, accept a surrender of space underthe landlord’s obligations under the Leases, or shorten for any dangerous or defective condition on the term ofReal Estate.
(i) Mortgagor shall defend, any Lease indemnify and hold Mortgagee harmless from and against all obligations, liabilities, losses, costs, expenses, civil fines, penalties or damages (including attorneys fees) which Mortgagee may incur by reason of this Mortgage or in connection with any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected spaceLeases or with regard to the Real Estate prior to such time as Mortgagee takes physical possession of and manages and operates the Real Estate after an Event of Default. Mortgagor shall defend Mortgagee against any such claim or litigation involving Mortgagee for the same. Should Mortgagee incur such obligation, liability, loss, cost, expense, civil fine, penalty or damage, Mortgagor shall reimburse Mortgagee upon demand. Any amount owed Mortgagee under this provision shall bear interest at the highest applicable interest rate payable under the Note.
(j) does not have a materially adverse effect on It is understood and agreed that neither the value assignment of the Property taken Leases as to Mortgagee nor the exercise by Mortgagee of any of its rights or remedies under this Mortgage shall be deemed to make Mortgagee a whole, and provided that such Lease, as amended, modified “Mortgagee-in-Possession” or waived, is otherwise responsible or liable in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender manner with respect to such Lease. A termination the Real Estate or the use, occupancy, enjoyment or operation of all or any portion thereof, unless and until Mortgagee, in person or agent, assumes actual possession thereof, nor shall appointment of a Lease receiver by any court at the request of Mortgagee or by agreement with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on Mortgagor or the value entering into possession of the Property taken as Real Estate or any part thereof by such receiver be deemed to make Mortgagee a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender “Mortgagee-in-Possession” or term shortening which does not satisfy the requirements set forth otherwise responsible or liable in this Subsection shall be subject any manner with respect to the prior approval Real Estate or the use, occupancy, enjoyment or operation of Lender and its counsel, which approval shall not be unreasonably withheld all or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectionany portion thereof.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
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Leases and Rents. 2.5.1 Exhibit B attached hereto is a true, complete and accurate copy of Borrower's rent roll for the Real Property (the "Rent Roll") which has been generated in the ordinary course of Borrower's business. There are no leases, subleases, licenses or concession agreements or other agreements for occupancy of the Real Property other than the Leases on the attached Rent Roll. All of the information set forth on the attached Rent Roll is true, accurate and complete in all material respects. Except as set forth on the Rent Roll: (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender[Intentionally Deleted], provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe to Borrower's actual knowledge, without independent investigation, no default has occurred and perform all the obligations imposed upon the lessor no event has occurred that with notice or lapse of time or both would constitute a default under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases except as security for the Debt; (ii) upon request, shall promptly send copies disclosed by Borrower to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of in writing prior to the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performedClosing, (ivc) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any none of the Leases has been amended or modified except as disclosed by Borrower to Lender in writing prior to Closing, (d) to Borrower's actual knowledge, without independent investigation, each of the Rents; Leases is in full force and effect, and (vie) shall not consent to any assignment of or subletting under any Leases not in accordance with their termsBorrower's actual knowledge, without independent investigation, all tenant improvement allowances and other concessions granted by Borrower under the prior written consent Leases have been paid in full. Other than as specifically set forth in the Leases, no person or entity has an option or contractual right to purchase all or any portion of Lenderthe Real Property, and no person or entity has an option or contractual right to lease any portion of the Real Property. All security deposits held or controlled by Borrower as of the Effective Date (collectively, the "Security Deposits") and paid by each tenant at the Property under the Leases currently held by, or under the control of, Borrower are set forth on the attached Rent Roll.
(c) Borrower may, without 2.5.2 Without limiting the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use generality of the affected space) does not have a materially adverse effect on the value of the Property taken as a wholeforegoing, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a that certain Prime Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendmentdated May ___, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
2010 (dsic) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third Chrysler Group Realty Company LLC (the "Chrysler Lease") that: (a) the Chrysler Lease has been terminated and is of no further force or effect, and (b) no party as tenant demising in has any rights or obligations under the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the PropertyChrysler Lease.
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Samples: Conveyance in Lieu of Foreclosure Agreement (Retail Opportunity Investments Corp)
Leases and Rents. Mortgagor represents that there are no leases or ---------------- tenancies with respect to the Mortgaged Property. Subject to the terms of this paragraph, the Mortgagee waives the right to enter the Mortgaged Property for the purpose of collecting the Rents, and grants the Mortgagor the right to collect the Rents. The Mortgagor shall hold the Rents, or an amount sufficient to discharge all current sums due on the Debt, in trust for use in payment of the Debt.
(a) Borrower may enter into a proposed Lease (including the renewal fulfill or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates perform each and terms comparable to existing local market rates and terms (taking into account the type and quality every material provision of the tenant) as Leases on the part of the date such Lease is executed by Borrower (unlessMortgagor to be fulfilled or performed, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower the Mortgagor shall send or receive thereunder; under the Leases to the Mortgagee, and (iiic) shall enforce all enforce, short of termination of the Leases, the performance or observance of the material termsprovisions thereof by the tenants thereunder. The Mortgagor shall from time to time upon the request of the Mortgagee provide to the Mortgagee a complete and detailed leasing status report with respect to the Improvements, covenants which leasing status report shall be in form and conditions contained substance reasonably satisfactory in all respects to the Mortgagee. In addition to the rights which the Mortgagee may have herein, in the Leases upon event of any default under this Mortgage that remains uncured beyond the expiration of any applicable notice and cure period, the Mortgagee, at its option, may require the Mortgagor to pay monthly in advance to the Mortgagee, or any receiver appointed to collect the Rents, the fair and reasonable rental value for the use and occupation of such part of the tenant thereunder Mortgaged Property as may be in possession of the Mortgagor. Upon default in any such payment that remains uncured beyond the expiration of any applicable notice and cure period, the Mortgagor will vacate and surrender possession of the Mortgaged Property to the Mortgagee, or to such receiver, and, in default thereof, the Mortgagor may be observed evicted by summary proceedings or performed, (iv) otherwise. Nothing contained in this paragraph shall not collect be construed as imposing on the Mortgagee any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment obligations of the lessor's interest in any of lessor under the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of LenderLeases.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
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Leases and Rents. (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) will not, without the prior written consent of Lender's consent, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality execute an assignment of the tenant) as any of the date such Lease is executed by Borrower (unlessits right, title or interest in the case of a Renewal Lease, the rent payable during such renewalRents and Profits, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fideunless required to do so by the terms of the lease, independent third party tenantterminate or consent to the cancellation or surrender of any lease of the Property or any part thereof, now or hereafter existing, (iii) does not have a materially adverse effect on modify any lease of the Property or any part thereof so as to reduce the unexpired term thereof, to decrease the amount of rent payable thereunder, or release or discharge, in whole or in part, the lessee or any guarantor of lessee's liability under the lease from any obligation under the lease, or (iv) accept prepayment of any installments of rent to become due under any of such leases in excess of one month, except prepayments in the nature of security for the performance of the lessee thereunder, or (v) in any other manner impair the value of the Property taken as a whole, (iv) is subject and subordinate to or the security of this Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expenseInstrument. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment lease of the lessor's interest in all or any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value portion of the Property taken as a wholeexcept for actual occupancy by the lessee thereunder, and provided that such Leasewill at all times promptly and faithfully perform, as amendedor cause to be performed, modified or waivedeach covenant, is otherwise condition and agreement contained in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value each lease of the Property taken as a whole. Any amendmentnow or hereafter existing, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy on the requirements set forth in this Subsection shall part of lessor thereunder to be subject to the prior approval of Lender kept and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expenseperformed. Borrower shall promptly deliver furnish to Lender, within ten (10) days after a request by Lender to do so, a written statement containing the names of all lessees of the Property, the terms of their respective leases, the space occupied and the rentals payable thereunder, and such other information relative to such lessees and leases as Lender may request, together with copies of amendments, modifications any and waivers all written leases then existing which are entered into pursuant affect or pertain to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 1 contract
Samples: Deed of Trust and Security Agreement (Global Geophysical Services Inc)
Leases and Rents. (a) Borrower Mortgagor does hereby absolutely and unconditionally assign to Mortgagee its right, title and interest in all current and future Leases and Rents and all proceeds from the sale, cancellation, surrender or other disposition of the Leases, it being intended by Mortgagor that this assignment constitutes a present, absolute assignment and not an assignment for additional security only. Such assignment to Mortgagee shall not be construed to bind Mortgagee to the performance of any of the covenants, conditions or provisions contained in any such Lease or otherwise to impose any obligation upon Mortgagee. Mortgagor agrees to execute and deliver to Mortgagee such additional instruments in form and substance satisfactory to Mortgagee, as may hereafter be requested by Mortgagee to further evidence and confirm such assignment. Nevertheless, subject to the terms of this Paragraph 7, Mortgagee grants to Mortgagor a revocable license to operate and manage the Mortgaged Property and to collect the Rents. Mortgagor shall hold the Rents, or a portion thereof sufficient to discharge all current sums due on the Indebtedness, in trust for the benefit of Mortgagee for use in the payment of such sums. The grant of the foregoing license is subject to the provisions of Paragraph 1 of the separate Assignment of Leases and Rents of even date herewith granted by the Mortgagor as “Assignor“ to the Mortgagee as “Assignee“ with respect to the Mortgaged Property (“Assignment of Leases and Rents“). Upon the occurrence of an Event of Default, the license granted to Mortgagor herein shall be automatically revoked and Mortgagee shall immediately be entitled to possession of all Rents, whether or not Mortgagee enters upon or takes control of the Mortgaged Property. Mortgagee is hereby granted and assigned by Mortgagor the right, at its option, upon the revocation of the license granted herein to enter into upon the Mortgaged Property in person, by agent or by court-appointed receiver to collect the Rents. Any Rents collected after the revocation of the license herein granted may be applied toward payment of the Indebtedness in such priority and proportion as Mortgagee in its discretion shall deem proper. It is further the intent of Mortgagor and Mortgagee that the Rents hereby absolutely assigned are no longer, during the term of this Mortgage, property of Mortgagor or property of any estate of Mortgagor as defined in Section 541 of the Bankruptcy Code and shall not constitute collateral, cash or otherwise, of Mortgagor. The term “Rents“ as used herein shall mean the gross rents without deduction or offsets of any kind.
(b) All Leases executed after the date of this Mortgage shall provide that they are subordinate to this Mortgage and that the lessee agrees to attorn to Mortgagee; provided, however, that nothing herein shall affect Mortgagee’s right to designate from time to time any one or more Leases as being superior to this Mortgage and Mortgagor shall execute and deliver to Mortgagee and shall cause to be executed and delivered to Mortgagee from each tenant under such Lease any instrument or agreement as Mortgagee may deem necessary to make such Lease superior to this Mortgage. Upon request, Mortgagor shall promptly furnish Mortgagee with executed copies of all Leases.
(c) Mortgagor shall not, without the prior consent of Mortgagee, (i) lease all or any part of the Mortgaged Property, (ii) alter or change the terms of any Lease or cancel or terminate, abridge or otherwise modify the terms of any Lease, (iii) consent to any assignment of or subletting under any Lease not in accordance with its terms, (iv) cancel, terminate, abridge or otherwise modify any guaranty of any Lease or the terms thereof, (v) collect or accept prepayments of installments of Rents for a proposed period of more than one (1) month in advance or (vi) further assign the whole or any part of the Leases or the Rents; provided, however, that such action as described in subsections (i)-(iv) above may be taken without Mortgagee’s consent for any Lease which is for less than 5,000 square feet of space with an annual rent of not less than the prevailing market rent, and has a term (including the renewal or extension of an existing Lease term) not exceeding five years (a lease satisfying those criteria shall be referred to as a "Renewal Small Lease") so long as the taking of such action is in the ordinary course of Mortgagor’s business and that such action is still subject to Paragraph 1 of the separate Assignment of Leases and Rents pertaining to Termination Amounts (as defined therein) (a lease satisfying those criteria shall be referred to as a "Small Lease") so long as the taking of such action is in the ordinary course of Mortgagor’s business and that such action is still subject to Paragraph 1 of the separate Assignment of Leases and Rents pertaining to Termination Amounts (as defined therein).
(d) without the prior written consent of LenderWith respect to each Lease, provided such proposed Lease or Renewal Lease Mortgagor shall (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all each and every provision thereof on the obligations imposed upon the lessor lessor’s part to be fulfilled or performed under the Leases each Lease and shall not do or permit to be done anything to impair the value of any of the Leases Lease as security for the Debt; Loan, including surrender or voluntary termination of any Lease, (ii) upon request, shall promptly send to Mortgagee copies to Lender of all notices of default which Borrower Mortgagor shall send or receive thereunder; , (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases such Lease upon the lessee’s part of the tenant thereunder to be observed or performed, short of termination thereof, (iv) shall not collect any execute and deliver, at the request of Mortgagee, all such further assurances, confirmations and assignments in connection with the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); Mortgaged Property as Mortgagee shall, from time to time, require and (v) shall not execute any other assignment upon request, furnish Mortgagee with executed copies of the lessor's interest in any of the Leases or the Rentsall Leases; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their termsprovided, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of termhowever, the planned alternative use of notice to Mortgagee referenced in subparagraph (ii) above and the affected space) does not have a materially adverse effect restriction on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease in connection with a tenant who is the enforcement of its terms, covenants and conditions set forth in default beyond applicable notice and grace periods (iii) above shall not be considered an action which has a materially adverse effect on required or apply, as the case may be, for any Small Lease. Upon the occurrence of any Event of Default under this Mortgage, Mortgagor shall pay monthly in advance to Mortgagee, or any receiver appointed to collect the Rents, the fair and reasonable rental value for the use and occupation of the Mortgaged Property taken or part of the Mortgaged Property as a wholemay be occupied by Mortgagor or any one Mortgagor and upon default in any such payment Mortgagor shall vacate and surrender possession of the Mortgaged Property to Mortgagee or to such receiver and, in default thereof, Mortgagor may be evicted by summary proceedings or otherwise.
(e) All security deposits of tenants, whether held in cash or any other form, shall not be commingled with any other funds of Mortgagor and, if cash, shall be deposited by Mortgagor at such commercial or savings bank or banks as may be reasonably satisfactory to Mortgagee. Any amendment, modification, waiver, termination, rent reduction, space surrender bond or term shortening other instrument which does not satisfy the Mortgagor is permitted to hold in lieu of cash security deposits under any applicable legal requirements set forth in this Subsection shall be maintained in full force and effect in the full amount of such deposits unless replaced by cash deposits as hereinabove described, shall be issued by an institution reasonably satisfactory to Mortgagee, shall, if permitted pursuant to any legal requirements, name Mortgagee as payee or Mortgagee thereunder (or at Mortgagee’s option, be fully assignable to Mortgagee) and shall, in all respects, comply with any applicable legal requirements and otherwise be reasonably satisfactory to Mortgagee. Mortgagor shall, upon request, provide Mortgagee with evidence reasonably satisfactory to Mortgagee of Mortgagor’s compliance with the foregoing. Following the occurrence and during the continuance of any Event of Default, Mortgagor shall, upon Mortgagee’s request, if permitted by any applicable legal requirements, turn over to Mortgagee the security deposits (and any interest theretofore earned thereon) with respect to all or any portion of the Mortgaged Property, to be held by Mortgagee subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all terms of the conditions of this SubsectionLeases.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 1 contract
Leases and Rents. (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of LenderMortgagor hereby absolutely and unconditionally assigns, provided such proposed Lease or Renewal Lease (i) provides for rental rates sells, transfers and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied conveys all of the conditions of this Subsection.
(b) Borrower (i) shall observe right, title and perform interest in and to all the obligations imposed upon the lessor under the Leases existing and shall not do future leases and subleases, tenancies and occupancy agreements, however denominated, affecting all or permit to be done anything to impair the value of any a portion of the Leases as security for Premises and all renewals, replacements and guarantees thereof (the Debt; (ii“Leases”) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce along with all of the material termsrents, covenants income and conditions contained profits due thereunder (the “Rents”) to Mortgagee. This assignment is absolute in nature and not an assignment for additional security only. The Mortgagee waives the Leases upon right to enter the part Mortgaged Property for the purpose of collecting the Rents, and grants the Mortgagor the right to collect the Rents. The Mortgagor shall hold the Rents, or an amount sufficient to discharge all current sums due on the Debt, in trust for use in payment of the tenant thereunder Debt. The right of the Mortgagor to collect the Rents may be revoked by the Mortgagee without notice upon any Event of Default by the Mortgagor under the terms of the Note or this Mortgage. Following such revocation the Mortgagee may retain and apply the Rents toward payment of the Debt in such order, priority and proportions as the Mortgagee, in its discretion, shall deem proper, or to the operation, maintenance and repair of the Mortgaged Property, and irrespective of whether the Mortgagee shall have commenced a foreclosure of this Mortgage or shall have applied or arranged for the appointment of a receiver. The Mortgagor shall not, except as provided below, without the consent of the Mortgagee, make, or suffer to be observed made, any Leases or performed, (iv) shall not collect modify any Leases or cancel any Leases or modify or cancel any Leases or accept prepayments of installments of the Rents for a period of more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute or further assign the whole or any other assignment part of the lessor's interest Rents. Notwithstanding the foregoing, but subject in any all respects to the terms and conditions of Section E. 10. of that certain Loan Agreement of even date herewith made by and among the Leases or Mortgagor, Mortgagee and Guarantors (the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms“Loan Agreement”), the Mortgagor may, without the prior written consent of Lenderthe Mortgagee (i) sublease the entire Mortgaged Property to Dairyland USA Corporation pursuant to an operating lease (the “Operating Lease”) approved by the Mortgagee dated the date hereof and (ii) enter into subleases under the Operating Lease to affiliates of Dairyland USA Corporation for all or portions of the Improvements and (iii) enter into subleases with non affiliates for portions of the Improvements, expressly subordinate to this Mortgage, at market rates provided the aggregate of such subleases is not in excess of (a) twenty five percent (25%) of the rentable square feet of the Improvements provided that such subleases and the subtenants are not in a Tenant Excluded Business and are otherwise in conformance with the Loan Agreement and the provisions therein requiring conformance with the New Market Tax Credit laws, rules and regulations or (b) after the termination of the subleases in (iv) and (v), twenty five percent (25%) of the rentable square feet of the Improvements provided that such subleases and the subtenants are not in a Tenant Excluded Business and are otherwise in conformance with the Loan Agreement and the provisions therein requiring conformance with the New Market Tax Credit laws, rules and regulations and (iv) a short term sublease or license by the Mortgagor to X.X. Xxxxxxx Co. Inc. for a sublease term not to exceed one hundred twenty (120) days and (v) the sublease covering a portion of the Mortgaged Property held by R Best which shall remain in place until the Full Vacate Date (as defined in the Mortgaged Lease) (all of the foregoing hereinafter referred to as “Permitted Subleases”). The Mortgagee shall have all of the rights against tenants of the Mortgaged Property as set forth in Section 291-f of the Real Property Law of New York. The Mortgagor shall (a) fulfill or perform each and every provision of the Leases on the part of the Mortgagor to be fulfilled or performed, (b) promptly send copies of all notices of default which the Mortgagor shall send or receive under the Leases to the Mortgagee, and (c) enforce, short of termination of the Leases, the performance or observance of the provisions thereof by the tenants thereunder. The Mortgagor shall from time to time, but not less frequently than once every year, provide to the Mortgagee a complete and detailed leasing status report with respect to the Improvements, which leasing status report shall be in form and substance satisfactory in all respects to the Mortgagee. In addition to the rights which the Mortgagee may have herein, upon any Event of Default under this Mortgage, the Mortgagee, at its option, may require the Mortgagor to pay monthly in advance to the Mortgagee, or any receiver appointed to collect the Rents, the fair and reasonable rental value for the use and occupation of such part of the Mortgaged Property as may be in possession of the Mortgagor. Upon an Event of Default in any such payment, the Mortgagor will vacate and surrender possession of the Mortgaged Property to the Mortgagee, or to such receiver, and, in default thereof, the Mortgagor may be evicted by summary proceedings or otherwise. Nothing contained in this paragraph shall be construed as imposing on the Mortgagee any of the obligations of the lessor under the Leases or of a “mortgagee in possession”.
(b) The Mortgagor acknowledges and agrees that, upon recordation of this Mortgage, the Mortgagee’s interest in the Rents shall be deemed to be fully perfected, “xxxxxx” and enforced as to the Mortgagor and all third parties, including without limitation any subsequently appointed trustee in any case under the Bankruptcy Code, without the necessity of (i) commencing a foreclosure action with respect to this Mortgage, (ii) furnishing notice to the Mortgagor or tenants under the Leases, (iii) making formal demand for the Rents, (iv) taking possession of the Premises as a mortgagee-in-possession, (v) obtaining the appointment of a receiver of the rents and profits of the Premises, (vi) sequestering or impounding the Rents, or (vii) taking any other affirmative action.
(c) Borrower mayFor purposes of Section 552(b) of the Bankruptcy Code, without the consent Mortgagor and the Mortgagee agree that this Mortgage shall constitute a “security agreement,” that the security interest created by such security agreement extends to property of Lender, amend, modify or waive the provisions Mortgagor acquired before the commencement of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided case in bankruptcy and to all amounts paid as Rents and that such action (taking into account, in security interest shall extend to all Rents acquired by the case estate after the commencement of a termination, reduction case in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectionbankruptcy.
(d) Notwithstanding anything contained herein The Mortgagor acknowledges and agrees that all Rents shall be deemed to be “Cash Collateral” under Section 363 of the contraryBankruptcy Code in the event that the Mortgagor files a voluntary petition in bankruptcy or is made subject to any involuntary bankruptcy proceeding. After the filing of such petition, Borrower shall not, the Mortgagor may not use Cash Collateral without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive the Mortgagee and/or an order of any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%bankruptcy court pursuant to Section 363(b)(2) of the total rentable square feet at the PropertyBankruptcy Code.
Appears in 1 contract
Samples: Leasehold Mortgage and Security Agreement (Chefs' Warehouse, Inc.)
Leases and Rents. (a) Borrower does hereby absolutely and unconditionally assign to Lender, Borrower’s right, title and interest in all current and future Leases and Rents, it being intended by Borrower that this assignment constitutes a present, absolute assignment and not an assignment for additional security only. Such assignment to Lender shall not be construed to bind Lender to the performance of any of the covenants, conditions or provisions contained in any such Lease or otherwise impose any obligation upon Lender. Borrower agrees to execute and deliver to Lender such additional instruments, in form and substance satisfactory to Lender, as may enter into hereafter be requested by Lender to further evidence and confirm such assignment. Nevertheless, subject to the terms of this Section 3.7, Lender grants to Borrower a proposed Lease revocable license (including revocable only as provided herein) to operate and manage the renewal or extension Property and to collect, retain, and enjoy the Rents pursuant to (and as such license may be limited by) the terms and conditions contained in the Restricted Account Agreement and the Cash Management Agreement. Furthermore, notwithstanding anything to contrary contained herein and notwithstanding the rights granted to Lender pursuant to this Section 3.7, all Rents shall be deposited, held and applied pursuant to the provisions of the Restricted Account Agreement and the Cash Management Agreement. Upon the occurrence and continuance of an existing Lease Acceleration Default, the license granted to Borrower herein shall automatically be revoked (a "Renewal Lease"subject to automatic reinstatement upon Borrower’s cure of the applicable Event of Default), and Lender shall, subject to the provisions of the Other Security Documents, immediately be entitled to possession of all Rents, whether or not Lender enters upon or takes control of the Property. Subject to the provisions of the Other Security Documents, Lender is hereby granted by Borrower the right, at its option, during any period of revocation of the license granted herein, to enter upon the Property in person, by agent or by court appointed receiver to collect the Rents. Any Rents collected during the revocation of the license shall, subject to any contrary provision of the Other Security Documents, be applied by Lender against the Debt, in such order and priority as it may determine. Notwithstanding the foregoing, in the event of any conflict or inconsistency between the terms and provisions of this Section 3.7(a) and those contained in that certain Assignment of Leases and Rents executed by Borrower in connection with the Loan (the “ALR”), the terms and conditions of the ALR shall control and govern.
(b) All Leases entered into after the date hereof shall be written on (i) the standard form of lease which has been approved by Lender (the “Standard Form”) or (ii) an Acceptable Chain Tenant Form (defined below). Commercially reasonable changes may be made to the Lender-approved standard lease or an Acceptable Chain Tenant Form without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, Lender in the case ordinary course of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), Borrower’s business. All Leases (iiincluding any Acceptable Chain Tenant Form) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and shall provide that they are subordinate to the this Security Instrument (subject to Lender’s agreement (by Lender’s acceptance of this Security Instrument hereby given) not to disturb such tenant’s tenancy while they are in compliance with the terms of their Lease) and that the lessee tenant thereunder agrees to attorn to Lender. As used herein, and (v) is written on the standard term “Acceptable Chain Tenant Form” shall mean the form of lease approved promulgated by Lender. All proposed Leases which do a prospective national or regional chain tenant that generally insists, on a programmatic or institutional basis (although an occasional exception to such requirement shall not satisfy cause this provision to fail), on using its own form of lease; provided, that, the requirements set forth provisions contained in this Subsection 3.8(a) shall be subject to the prior approval such form of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower lease (i) shall observe and perform all are commercially reasonably for properties similar to the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; Property, (ii) upon requestdo not contain any rights, shall promptly send copies options (including, without limitation, rights to purchase the Property or any interest therein) or obligations that would be unacceptable to a prudent secondary market lender substantially similar to Lender of all notices of default which Borrower shall send or receive thereunder; and (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does do not have a materially Material Adverse Effect (defined below). As used herein, the term “Material Adverse Effect” shall mean a material adverse effect on (i) the value Property, (ii) the business, profits, prospects, management, operations or condition (financial or otherwise) of Borrower, Guarantor or the Property, (iii) the enforceability, validity, perfection or priority of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements lien of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on or the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space underother Loan Documents, or shorten (iv) the term of, any Major Lease. The term "Major Lease" shall mean any Lease between ability of Borrower as landlord and a third party as tenant demising in to perform its obligations under this Security Instrument or the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Propertyother Loan Documents.
Appears in 1 contract
Samples: Deed of Trust and Security Agreement (American Assets Trust, Inc.)
Leases and Rents. (a) Borrower may enter into a proposed Lease (including All Leases and all renewals of Leases executed after the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease date hereof shall (i) provides provide for rental rates and terms comparable to existing local market rates for similar properties (except for renewals pursuant to the terms and conditions of Leases executed prior to the date hereof, the rental rates for which shall be consistent with the terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original applicable Lease), (ii) is an arms-length transaction be on commercially reasonable terms with a bona fideunaffiliated, independent third party tenantparties (unless otherwise consented to by Lender or for renewals pursuant to the terms and conditions of Leases executed prior to the date hereof), and (iii) does not have a materially adverse effect on with respect to Leases entered into after the value of the Property taken as a wholeClosing Date, (iv) provide that such Lease is subject and subordinate to the Security Instrument Instruments and that the lessee thereunder agrees to will attorn to Lender and any purchaser at a foreclosure sale, provided, that such subordination and attornment may be contingent on Lender, ’s agreement not to disturb the Tenant’s use of such premises so long as no event of default under such Lease has occurred and (v) is written on the standard form of lease approved by Lendercontinuing. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject Notwithstanding anything to the contrary contained herein, Borrower shall not, without the prior written approval of Lender and its counsel(which approval shall not be unreasonably withheld, at Borrower's expense. conditioned or delayed), enter into, renew, extend, amend, modify, permit any assignment of or subletting under (to the extent Borrower shall promptly deliver to Lender copies consent is required under the terms of all Leases which are entered into the applicable Lease for the applicable assignment and/or subletting), waive any economic provisions or other material provisions of, release any party to, terminate (except in the case of default by the Tenant thereunder), reduce rents under, accept a surrender of space under (unless required pursuant to this Subsection together with Borrower's certification that it has satisfied all the terms and conditions of the conditions of applicable Lease), or shorten the term of, in each case, any Major Lease. To the extent that the Deemed Approval Requirements are fully satisfied in connection with any Borrower request for Lender consent under this Subsectionsubparagraph (a) and Lender thereafter fails to approve or disapprove the same, Lender’s approval shall be deemed given with respect to the matter for which approval was requested.
(b) Without limitation of subsection (a) above, Borrower (i) shall observe and perform all the material obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debtin a commercially reasonable manner; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performed, performed in a commercially reasonable manner; (iviii) shall not collect any of the Rents more than one (1) month in advance (except other than security deposits deposits); (iv) shall not be deemed execute any assignment of lessor’s interest in the Leases or the Rents collected in advance(except as contemplated by the Loan Documents); (v) shall not, without Lender’s prior written consent (not execute to be unreasonably withheld, conditioned or delayed), alter, modify or change any other assignment of Lease to the lessor's interest extent the same would, individually or in the aggregate, (A) cause any of the Leases such Lease to violate 4.14(a)(i) through (iii) above or the Rents(B) have a Material Adverse Effect; and (vi) shall not consent to any assignment of or subletting hold all security deposits under any all Leases not in accordance with their termsLegal Requirements. Upon request, without the prior written consent Borrower shall furnish Lender with executed copies of Lenderall Leases.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall notnot willfully withhold from Lender any information reasonably required regarding renewal, without the prior written consent extension, amendment, modification, waiver of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminatetermination, reduce rents underrental reduction of, accept a surrender of space underof, or shorten shortening of the term of, any Lease during the term of the Loan. Borrower further agrees to provide Lender with written notice of a Tenant “going dark” under such Tenant’s Lease within ten (10) Business Days after Borrower’s knowledge that such Tenant has “gone dark”.
(d) Borrower shall notify Lender in writing, within two (2) Business Days following receipt thereof, of Borrower’s receipt of any early termination fee or payment or other termination fee or payment paid by any Tenant under any Lease, and Borrower shall cause such fee or payment to be deposited into an Eligible Account with Lender to be disbursed by Lender for tenant improvement and leasing commission costs with respect to the Property within ten (10) Business Days after Borrower’s request therefor, provided no Event of Default is continuing. After the entirety of the space demised under the Lease to which such early termination fee or payment or other termination fee or payment relates has been leased to a replacement Tenant in accordance with the terms and conditions of this Agreement and the Tenant thereunder is open for business and paying full and unabated rent under such Lease, Lender shall deposit any remaining early termination fee or payment or other termination fee or payment held by Lender pursuant to this subclause (d) in the Cash Management Account for application in accordance with Section 9.3 hereof. During the continuance of an Event of Default, any such fee or payment may also be held as collateral for the Debt or applied towards payment of the Debt, as so determined by Lender.
(e) Lender agrees to reasonably cooperate with any request by Borrower to deliver a subordination and non-disturbance agreement in favor of a Tenant under a Major Lease, on Lender’s then current form of subordination and non-disturbance agreement; provided that Lender will cooperate reasonably in connection with reasonable changes requested thereto. The term "Major Lease" Borrower shall mean any Lease between Borrower as landlord pay all reasonable out-of-pocket costs and a third party as tenant demising expenses incurred by Lender in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Propertyconnection with such request.
Appears in 1 contract
Leases and Rents. (a) Borrower may enter into a proposed Lease (including is the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality sole owner of the tenantentire lessor's interest in the Leases; (b) the rent roll attached hereto as Exhibit E (the "Rent Roll") is true, complete and correct on and as of the date such Lease is executed by Borrower hereof; (unless, c) there are no Leases now in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect except those set forth on the value of the Property taken as a whole, (iv) is subject Rent Roll and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver has delivered to Lender true, correct and complete copies of all Leases which are entered into pursuant to this Subsection (together with Borrower's certification that it has satisfied all of modifications thereto) for any commercial space in the conditions of this Subsection.
Property; (bd) Borrower except as listed on Exhibit G: (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any none of the Rents have been collected for more than one (1) month in advance advance; (ii) except security deposits shall not be deemed Rents collected in advance)for the work being performed by Amazon as permitted pursuant to the Amazon Lease, the premises demised under the Leases have been completed and the tenants under the Leases have accepted and taken possession of the same on a rent-paying basis; (iii) to Borrower's Knowledge, there exists no offset or defense to the payment of any portion of the Rents; (iv) except as set forth on Exhibit J attached hereto, no Lease contains an option to purchase or right of first refusal to purchase or similar provision, (v) shall not execute except as set forth on Exhibit J attached hereto, no Lease contains a building expansion right or any other assignment of the lessor's interest in any of the Leases or the Rentssimilar provision; and (vi) shall not consent to Borrower's Knowledge, there are no monetary defaults, material non-monetary defaults or events of default under any of the Leases; (e) no Person has any possessory interest in, or right to occupy, the Property except under and pursuant to a Lease; (f) reserved; (g) except as specifically set forth on the Rent Roll or any tenant estoppel delivered to Lender in connection with the closing of the Loan, no monetary concessions or inducements of any kind or nature have been given or promised to any assignment of or subletting under any Leases not in accordance with their terms, without tenant; (h) the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of Rent Roll reflects (i) 15,000 an aggregate annual base rental income, actually payable by the applicable tenants and not reduced by any rent concessions, of not less than $9,691,217, which base rental income is exclusive of any additional rent, amortization of above-standard tenant improvements and/or other payments or reimbursements due to landlord from any tenant, (ii) the occupancy of at least 1,219,021 rentable square feet or by tenants under written Leases and on a current, rent paying basis, and (iiiii) fifteen percent (15%) a minimum average annual rent actually payable of the total $7.95 net per rentable square feet at foot, by tenants under written Leases and on a current, rent paying basis, provided, however, Lender acknowledges that pursuant to the Property.Amazon Lease, Amazon is in its free rent abatement period which ends on October 31, 2024; and (i) each tenant is, to Borrower's Knowledge, free from bankruptcy, reorganization or arrangement proceedings or a general assignment for the benefit of creditors. LOAN AGREEMENT 20 Loan No. 374-1407
Appears in 1 contract
Samples: Loan Agreement (EQT Exeter Real Estate Income Trust, Inc.)
Leases and Rents. (ai) Borrower absolutely and unconditionally assign to the Agent, Borrower's right, title and interest in all current and future Leases and Rents, it being intended by Borrower that this assignment constitutes a present, absolute assignment and not an assignment for additional security only. Such assignment to the Agent shall not be construed to bind the Agent to the performance of any of the covenants, conditions or provisions contained in any such Lease or otherwise impose any obligation upon the Agent. Borrower shall execute and deliver to the Agent such additional instruments, in form and substance reasonably satisfactory to the Agent, as may hereafter be reasonably requested in writing by the Agent to further evidence and confirm such assignment. Nevertheless, subject to the terms of this Section 5.1(CC), the Agent grants to Borrower a license to lease, own, maintain, operate and manage the REO Property and to collect, use and apply the Rent, which license is revocable upon the occurrence of an Event of Default under this Agreement. Any portion of the Rents held by Borrower shall be held in trust for the benefit of the Agent for use in the payment of the Indebtedness. Upon the occurrence of an Event of Default and during the continuance thereof, the license granted to Borrower herein shall automatically be revoked, and the Agent shall immediately be entitled to possession of all Rents, whether or not the Agent enters upon or takes control of the REO Property. The Agent is hereby granted and assigned by Borrower the right, at its option, upon revocation of the license granted herein, to enter upon the REO Property in person, by agent or by court-appointed receiver to collect the Rents. Any Rents collected after the revocation of the license shall be applied toward payment of the Indebtedness in the priority and proportions set forth in Section 2.8 hereof or otherwise as the Agent in its discretion shall deem proper.
(ii) All Leases entered into by Borrower shall provide for rental rates comparable to then-existing local market rates and terms and conditions commercially reasonable and consistent with then-prevailing local market terms and conditions for similar type properties. With respect to any Lease for more than 5% of the rentable square footage of an REO Property, Borrower shall not enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal such Lease")) , without the prior written consent of Lender, provided such proposed Lease or Renewal Lease the Agent. Borrower shall furnish the Agent with (i1) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, detailed term sheets in advance in the case of a Renewal Leaseany Leases, the rent payable during such renewalmodifications, amendments or a formula or other method to compute such rent, renewals for which Agent's consent is provided for required and (2) in the original Lease)case of any other Leases, (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value executed copies of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is such Leases upon written on the standard form of lease approved by Lenderrequest. All proposed renewals or amendments or modifications of Leases which do not satisfy the requirements set forth in of the first sentence of this Subsection 3.8(aSection 5.1(CC)(ii) shall be subject to the prior approval of the Agent. All Leases shall be written on the standard lease form previously approved by Lender and its counselwhich form shall not be materially changed without the Agent's prior written consent, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.such
(b) Borrower (i) shall observe and perform all of the material obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to materially impair the value of any of the Leases as security for the DebtIndebtedness; (ii) upon request, shall promptly send copies to Lender the Agent of all written notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performedperformed and shall effect a termination or diminution of the obligations of tenants under leases, only in a manner that a prudent owner of a similar property to the REO Property would enforce such terms covenants and conditions in the ordinary course of business; (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent convey or transfer or suffer or permit a conveyance or transfer of the REO Property or of any interest therein so as to any assignment effect a merger of the estates and rights of, or subletting under any Leases not in accordance with their termsa termination or diminution of the obligations of, without the prior written consent of Lenderlessees thereunder.
(ciii) Borrower mayshall deposit security deposits of lessees which are turned over to or for the benefit of Borrower or otherwise collected by or on behalf of Borrower, without into an Eligible Account with the consent of Lender, amend, modify or waive same name as the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit Collection Account. Any bond or other credit support with respect theretoinstrument which Borrower is permitted to hold in lieu of cash security deposits under any applicable Legal Requirements shall be maintained in full force and effect unless replaced by cash deposits as hereinabove described, shall, if permitted pursuant to Legal Requirements, name the Agent as payee or mortgagee thereunder (or at the Agent's option, be fully assignable to the Agent) provided that such action (taking into accountand shall, in all respects, comply with any applicable Legal Requirements and otherwise be reasonably satisfactory to the case Agent. Borrower shall, upon request, provide the Agent with evidence reasonably satisfactory to the Agent of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in Borrower's compliance with the requirements foregoing. Upon the occurrence and during the continuance of this Security Instrument any Event of Default, Borrower shall, upon the Agent's request, if permitted by any applicable Legal Requirements, turn over to the Agent the security deposits (and any subordinate agreement binding upon Lender interest theretofore earned thereon) with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value all or any portion of the Property taken as a whole. Any amendmentREO Property, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy to be held by the requirements set forth in this Subsection shall be Agent subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all terms of the conditions of this SubsectionLeases.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 1 contract
Leases and Rents. (a) Except as otherwise consented to by Lender, all Leases shall be written on a standard form of lease which shall have been approved by Lender. Upon request, Borrower shall furnish Lender with executed copies of all Leases. By its acceptance hereof, Lender acknowledges its receipt and approval of the form of lease used by Borrower and the tenants currently in possession of the Mortgaged Property thereunder. No material changes may enter into a proposed Lease (including be made to the renewal or extension of an existing Lease (a "Renewal Lease")) Lender-approved standard lease without the prior written consent of Lender, provided such proposed Lease which consent shall not be unreasonably withheld or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lenderdelayed. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) leases shall be subject to the prior approval of Lender and its counselexcept that all proposed leases which (i) are on the same form of lease which has been approved by Lender, at Borrower's expense. Borrower shall promptly deliver (ii) are the result of an arms-length transaction, (iii) which provide for rental rates comparable to Lender copies existing market rates, (iv) where space to be leased does not exceed more than ten percent (10%) of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all total rentable space of the conditions Property, (v) where the proposed tenant is an independent third party not affiliated with the Borrower, and (vi) do not contain any terms which would materially affect Lender's rights under this Security Instrument, the Note or the Other Security Documents, shall not be subject to the prior approval of this Subsection.Lender. Borrower
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases if the failure to perform or observe the same would materially and adversely affect the value of the Property taken as a whole and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce in a commercially reasonable manner all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performed; provided, however, with respect to multifamily residential property, a residential Lease may be terminated in the event of a default by the tenant thereunder; (iv) shall not collect any of the Rents more than one (1) month in advance (except provided that a security deposits deposit shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.deemed
Appears in 1 contract
Samples: Deed of Trust and Security Agreement (Ramco Gershenson Properties Trust)
Leases and Rents. (a) Borrower Mortgagor does hereby absolutely and unconditionally assign to Mortgagee, Mortgagor's right, title and interest in all current and future Leases and Rents, it being intended by Mortgagor that this assignment constitutes a present, absolute assignment and not an assignment for additional security only. Such assignment to Mortgagee shall not be construed to bind Mortgagee to the performance of any of the covenants, conditions or provisions contained in any such Lease or otherwise impose any obligation upon Mortgagee. Mortgagor agrees to execute and deliver to Mortgagee such additional instruments, in form and substance satisfactory to Mortgagee, as may hereafter be requested by Mortgagee to further evidence and confirm such assignment. Nevertheless, subject to the terms of this paragraph, Mortgagee grants to Mortgagor a revocable license to operate and manage the Mortgaged Property and to collect the Rents. Any portion of the Rents held by Mortgagor shall be held in trust for the benefit of Mortgagee for use in the payment of the Obligations. Upon an Event of Default, the license granted to Mortgagor herein shall automatically be revoked, and Mortgagee shall immediately be entitled to possession of all Rents, whether or not Mortgagee enters upon or takes control of the Mortgaged Property. Mortgagee is hereby granted and assigned by Mortgagor the right, at its option, upon revocation of the license granted herein, to enter upon the Mortgaged Property in person, by agent or by court-appointed receiver to collect the Rents. Any Rents collected after the revocation of the license may be applied toward payment of the Obligations in such priority and proportions as Mortgagee in its discretion shall deem proper.
(b) Mortgagor shall not enter into a proposed Lease any Leases (including the renewal or extension of an other than Leases providing for rental rates comparable to then-existing Lease (a "Renewal Lease")local market rates and terms and with conditions commercially reasonable and consistent with then- prevailing market terms and conditions) without the prior written consent of LenderMortgagee which consent shall not be unreasonably withheld or delayed, provided provided, that Mortgagee's consent shall be deemed to have been given if Mortgagee fails to reject or consent to a proposed lease within 10 business days' receipt thereof; and, further, provided, that no such proposed Lease consent shall be required with respect to Leases for space which constitute less than 5% of the net rentable square footage of any building or Renewal buildings that constitute a discrete project that comprises a portion of the Mortgaged Property (each such project, a "Project"). Mortgagor shall furnish Mortgagee with an abstract of the significant terms of each new Lease (iwhether or nor consent shall be required) provides at least five (5) business days' prior to the execution of such Lease, and Mortgagor shall furnish Mortgagee with executed copies of all Leases. Notwithstanding anything to the contrary in the foregoing sentences of this Section 6(b), during any period in which the Loan to Value Ratio shall equal or exceed 80%, Mortgagor shall not enter into any Leases without the prior written consent of Mortgagee. All renewals (except pursuant to the terms of Leases then in effect) or amendments of Leases shall provide for rental rates and terms comparable to then-existing local market rates and terms and conditions commercially reasonable and consistent with then-prevailing market terms and conditions. All renewals (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate except pursuant to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (vterms of Leases then in effect) is written on the standard form or amendments of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) of the preceding sentence shall be subject to the prior approval of Lender and its counselMortgagee, at Borrower's expense. Borrower shall promptly deliver not to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification be unreasonably withheld or delayed, provided, that it has satisfied all of the conditions of this Subsection.any such renewal or 13 18
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the DebtObligations; (ii) upon request, shall promptly send copies to Lender Mortgagee of all notices of default which Borrower Mortgagor shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases Lease upon the part of the tenant lessee thereunder to be observed or performed, short of termination thereof; (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in the Leases or Rents; (vi) shall not alter, modify or change the terms of the Leases without the prior written consent of Mortgagee (which consent shall not be unreasonably withheld or delayed, and provided that if Mortgagee fails to grant or withhold its consent within ten (10) business days of Mortgagee's receipt of Mortgagor's written request for consent, Mortgagee shall be deemed to have granted its consent to such alteration, modification or change), or, except if Tenant is in default thereunder, cancel or terminate the Leases or accept a surrender thereof; (vii) shall not convey or transfer or suffer or permit a conveyance or transfer of the Mortgaged Property or of any interest therein so as to effect a merger of the estates and rights of, or a termination or diminution of the obligations of, lessees thereunder; (viii) shall not alter, modify or change the terms of any guaranty of the Leases or cancel or terminate such guaranty without the Rentsprior written consent of Mortgagee; and (viix) shall not consent to any assignment of or subletting under any the Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counselMortgagee, which approval shall not be unreasonably withheld or delayed, at Borrowerand provided that if Mortgagee fails to grant or withhold its consent within ten (10) business days of Mortgagee's expensereceipt of Mortgagor's written request for consent, Mortgagee shall be deemed to have granted its consent to such assignment or subletting. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all The provisions of the conditions foregoing clauses (i), (vi), (viii) and (ix) shall not be applicable to leases for space which constitutes 5% or less of this Subsectionthe net rentable square footage of a Project.
(c) Following the occurrence and during the continuance of any Event of Default, Mortgagor shall, upon Mortgagee's request, if permitted by any applicable Legal Requirements, turn over to Mortgagee the security deposits (and any interest theretofore earned thereon) with respect to all or any portion of the Mortgaged Property, to be held by Mortgagee subject to the terms of the Leases.
(d) Notwithstanding anything contained herein to the contraryMortgagor represents, Borrower shall notwarrants and where applicable, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of covenants that:
(i) 15,000 rentable square feet Mortgagor has good title to the Leases and Rents hereby assigned and authority to assign them, and no other person or entity has any right, title or interest therein;
(ii) fifteen percent Mortgagor has, or within sixty (15%60) days of the total rentable square feet at the Property.date hereof will have, delivered to Mortgagee true correct and complete copies of all leases to which Mortgagor is a
Appears in 1 contract
Leases and Rents. (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of LenderMortgagor hereby absolutely and unconditionally assigns, provided such proposed Lease or Renewal Lease (i) provides for rental rates sells, transfers and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied conveys all of the conditions of this Subsection.
(b) Borrower (i) shall observe right, title and perform interest in and to all the obligations imposed upon the lessor under the Leases existing leases, tenancies and shall not do occupancy agreements, however denominated, affecting all or permit to be done anything to impair the value of any a portion of the Leases as security for Premises and all renewals, replacements and guarantees thereof (the Debt; (ii) upon request"Leases"), shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce along with all of the material termsrents, covenants income and conditions contained profits due thereunder (the "Rents"), to Mortgagee. This assignment is absolute in nature and not an assignment for additional security only. The Mortgagee waives the Leases upon right to enter the part Mortgaged Property for the purpose of collecting the Rents, and grants the Mortgagor the right to collect the Rents. The right of the tenant thereunder Mortgagor to collect the Rents may be observed revoked by the Mortgagee without notice upon any default by the Mortgagor under the terms of the Note or performedthis Mortgage. Following such revocation the Mortgagee may retain and apply the Rents toward payment of the Debt in such order, (iv) priority and proportions as the Mortgagee, in its discretion, shall not collect deem proper, or to the operation, maintenance and repair of the Mortgaged Property, and irrespective of whether the Mortgagee shall have commenced a foreclosure of this Mortgage or shall have applied or arranged for the appointment of a receiver. The Mortgagor shall not, without the consent of the Mortgagee, modify or cancel any Leases or accept prepayments of installments of the Rents for a period of more than one (1) month in advance or further assign the whole or any part of the Rents. The Mortgagee shall have all of the rights against tenants of the Mortgaged Property as set forth in Section 291-f of the Real Property Law of New York. The Mortgagor shall (except security deposits a) fulfill or perform each and every provision of the Leases on the part of the Mortgagor to be fulfilled or performed, (b) promptly send copies of all notices of default which the Mortgagor shall send or receive under the Leases to the Mortgagee, and (c) enforce, short of termination of the Leases, the performance or observance of the provisions thereof by the tenants thereunder. The Mortgagor shall from time to time, but not less frequently than once every year, provide to the Mortgagee a complete and detailed leasing status report with respect to the Improvements, which leasing status report shall be in form and substance satisfactory in all respects to the Mortgagee. In addition to the rights which the Mortgagee may have herein, in the event of any default under this Mortgage, the Mortgagee, at its option, may require the Mortgagor to pay monthly in advance to the Mortgagee, or any receiver appointed to collect the Rents, the fair and reasonable rental value for the use and occupation of such part of the Mortgaged Property as may be in possession of the Mortgagor. Upon default in any such payment, the Mortgagor will vacate and surrender possession of the Mortgaged Property to the Mortgagee, or to such receiver, and, in default thereof, the Mortgagor may be evicted by summary proceedings or otherwise. Nothing contained in this paragraph shall be construed as imposing on the Mortgagee any of the obligations of the lessor under the Leases or of a "mortgagee in possession".
(b) The Mortgagor acknowledges and agrees that, upon recordation of this Mortgage, the Mortgagee's interest in the Rents shall be deemed Rents collected to be fully perfected, "choate" and enforced as to the Mortgagor and all third parties, inclxxxxx, without limitation, any subsequently appointed trustee in advance); any case under the Bankruptcy Code, without the necessity of (i) commencing a foreclosure action with respect to this Mortgage, (ii) furnishing notice to the Mortgagor or tenants under the Leases, (iii) making formal demand for the Rents, (iv) taking possession of the Premises as a mortgagee-in-possession, (v) shall not execute any other assignment obtaining the appointment of a receiver of the lessor's interest in any rents and profits of the Leases or the Rents; and Premises, (vi) shall not consent to sequestering or impounding the Rents, or (vii) taking any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lenderother affirmative action.
(c) Borrower mayFor purposes of Section 552(b) of the Bankruptcy Code, without the consent Mortgagor and the Mortgagee agree that this Mortgage shall constitute a "security agreement," that the security interest created by such security agreement extends to property of Lenderthe Mortgagor acquired before the commencement of a case in bankruptcy and to all amounts paid as Rents, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided and that such action (taking into account, in security interest shall extend to all Rents acquired by the case estate after the commencement of a termination, reduction case in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectionbankruptcy.
(d) Notwithstanding anything contained herein The Mortgagor acknowledges and agrees that all Rents shall be deemed to be "Cash Collateral" under Section 363 of the contraryBankruptcy Code in the event that the Mortgagor files a voluntary petition in bankruptcy or is made subject to any involuntary bankruptcy proceeding. After the filing of such petition, Borrower shall not, the Mortgagor may not use Cash Collateral without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive the Mortgagee and/or an order of any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%bankruptcy court pursuant to Section 363(b)(2) of the total rentable square feet at the PropertyBankruptcy Code.
Appears in 1 contract
Samples: Mortgage (Boundless Corp)
Leases and Rents. (ai) Borrower absolutely and unconditionally assigns to the Agent, Borrower's right, title and interest in all current and future Leases and Rents, it being intended by Borrower that this assignment constitutes a present, absolute assignment and not an assignment for additional security only. Such assignment to the Agent shall not be construed to bind the Agent to the performance of any of the covenants, conditions or provisions contained in any such Lease or otherwise impose any obligation upon the Agent. Borrower shall execute and deliver to the Agent such additional instruments, in form and substance reasonably satisfactory to the Agent, as may hereafter be reasonably requested in writing by the Agent to further evidence and confirm such assignment. Nevertheless, subject to the terms of this SECTION 5.1(Z), the Agent grants to Borrower a license to lease, own, maintain, operate and manage each REO Property and to collect, use and apply the Rent, which license is revocable upon the occurrence of an Event of Default under this Agreement. Any portion of the Rents held by Borrower shall be held in trust for the benefit of the Agent for use in the payment of the Indebtedness. Upon the occurrence of an Event of Default and during the continuance thereof, the license granted to Borrower herein shall automatically be revoked, and the Agent shall immediately be entitled to possession of all Rents, whether or not the Agent enters upon or takes control of such REO Property. The Agent is hereby granted and assigned by Borrower the right, at its option, upon revocation of the license granted herein, to enter upon such REO Property in person, by agent or by court-appointed receiver to collect the Rents. Any Rents collected after the revocation of the license shall be applied toward payment of the Indebtedness in the priority and proportions set forth in SECTION 2.8 hereof or otherwise as the Agent in its discretion shall deem proper.
(ii) All Leases entered into by the Borrower shall provide for rental rates comparable to then-existing local market rates and terms and conditions commercially reasonable and consistent with then-prevailing local market terms and conditions for similar type properties in similar condition. With respect to any Lease for more than 10% of the rentable square footage of an REO Property, Borrower shall not enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) any such Leases, without the prior written consent of Lenderthe Agent, provided such proposed Lease consent not to be unreasonably withheld or Renewal Lease delayed. Borrower shall furnish the Agent with (i1) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, detailed term sheets in advance in the case of a Renewal Leaseany Leases, the rent payable during such renewalmodifications, amendments or a formula or other method to compute such rent, renewals for which Agent's consent is provided for required and (2) in the original Lease)case of any other Leases, (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value executed copies of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is such Leases upon written on the standard form of lease approved by Lenderrequest. All proposed renewals or amendments or modifications of Leases which do not satisfy the requirements set forth in of the first sentence of this Subsection 3.8(aSECTION 5.1 (Z)(ii) shall be subject to the prior approval of Lender the Agent. All Leases executed after the date hereof shall provide that they are subordinate to the applicable Mortgage and its counselthat the lessee agrees to attorn to the Agent. The Agent shall, at Borrower's expense. Borrower shall promptly deliver to Lender copies upon the request of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all any tenant occupying space in excess of 10% of the conditions rentable square footage of this Subsection.an REO Property, execute and deliver a non-disturbance agreement in form reasonably satisfactory to the Agent. Borrower
(b) Borrower (i) shall observe and perform all of the material obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to materially impair the value of any of the Leases as security for the DebtIndebtedness; (ii) upon request, shall promptly send copies to Lender the Agent of all written notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performedperformed and shall effect a termination or diminution of the obligations of tenants under leases, only in a manner that a prudent owner of a similar property to such REO Property would enforce such terms covenants and conditions or effect such termination or diminution in the ordinary course of business; (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent convey or transfer or suffer or permit a conveyance or transfer of such REO Property or of any interest therein so as to any assignment effect a merger of the estates and rights of, or subletting under any Leases not in accordance with their termsa termination or diminution of the obligations of, without the prior written consent of Lenderlessees thereunder.
(ciii) Borrower mayshall deposit security deposits of lessees which are turned over to or for the benefit of Borrower or otherwise collected by or on behalf of Borrower, without into an Eligible Account with the consent of Lender, amend, modify or waive same name as the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit Collection Accounts. Any bond or other credit support with respect theretoinstrument which the Borrower is permitted to hold in lieu of cash security deposits under any applicable Legal Requirements shall be maintained in full force and effect unless replaced by cash deposits as hereinabove described, shall, if permitted pursuant to Legal Requirements, name the Agent as payee or mortgagee thereunder (or at the Agent's option, be fully assignable to the Agent) provided that such action (taking into accountand shall, in all respects, comply with any applicable Legal Requirements and otherwise be reasonably satisfactory to the case of a terminationAgent. Borrower shall, reduction in rentupon request, surrender of space or shortening of term, provide the planned alternative use Agent with evidence reasonably satisfactory to the Agent of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in Borrower's compliance with the requirements foregoing. Upon the occurrence and during the continuance of this Security Instrument any Event of Default, Borrower shall, upon the Agent's request, if permitted by any applicable Legal Requirements, turn over to the Agent the security deposits (and any subordinate agreement binding upon Lender interest theretofore earned thereon) with respect to all or any portion of such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not REO Property, to be considered an action which has a materially adverse effect on held by the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be Agent subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all terms of the conditions of this SubsectionLeases.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 1 contract
Leases and Rents. (a) Borrower may permit Mezzanine A Borrower to permit Mortgage Borrower, in the ordinary course of Mortgage Borrower’s business without Lender’s consent, enter into a proposed into, amend or modify any Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided that such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable in all material respects to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease)similar properties, (ii) is an arms-length transaction with a bona fide, independent third party tenanton commercially reasonable terms (unless otherwise consented to by Lender), (iii) does not have a materially adverse effect on the value of the Property taken as a wholeis with unaffiliated, third parties (unless otherwise consented to by Lender), (iv) is subject and subordinate to provides that the Security Instrument and the lessee Tenant thereunder agrees to will attorn to Lender, Mortgage Lender and any purchaser at a foreclosure sale and (v) is written on the standard form of lease approved by Lender. All proposed Leases does not contain any terms which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject are reasonably likely to the prior approval of Lender and its counsel, at Borrower's expensehave a Material Adverse Effect. Borrower shall promptly deliver have the right to Lender copies permit Mezzanine A Borrower to permit Mortgage Borrower, without the consent or approval of all Leases which are entered into pursuant Lender, to this Subsection together with Borrower's certification terminate or accept a surrender of any Lease that it has satisfied all is not a Major Lease so long as such termination or surrender is (A) by reason of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor a Tenant default under the Leases applicable Lease and (B) in the ordinary course of Mortgage Borrower’s business. Notwithstanding anything to the contrary contained herein, Borrower shall not do or permit Mezzanine A Borrower to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their termspermit Mortgage Borrower, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, (which approval shall not be unreasonably withheld withheld, conditioned or delayed), at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modifyor modify (other than to a de minimis extent), consent to any assignment of or subletting under, waive any provisions of, release any party to, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, in each case, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising , except (x) in the aggregate more case of any Major Lease other than any Specified Tenant Lease and the lesser Oaktree Lease, to the extent that the terms of such Major Lease require Mortgage Borrower to act reasonably in approving such action and withholding approval under the circumstances would be unreasonable (for the avoidance of doubt, the foregoing proviso shall not be applicable to any Specified Tenant Lease and the Oaktree Lease, and Lender’s approval with respect to any Specified Tenant Lease and the Oaktree Lease shall be required as otherwise provided herein) and (y) to the extent that a Tenant under any Major Lease has, pursuant to the terms of its Lease, an unilateral right (without Mortgage Borrower’s consent and/or approval) to effectuate such action.
(b) Borrower (i) 15,000 rentable square feet or shall cause Mortgage Borrower to observe and perform the obligations (other than those of a de minimis nature) imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) shall cause Mortgage Borrower to enforce all terms, covenants and conditions (other than those of a de minimis nature) contained in the Leases upon the part of the Tenants thereunder to be observed or performed in a commercially reasonable manner, provided, however, Borrower shall not permit Mezzanine A Borrower to permit Mortgage Borrower to terminate or accept a surrender of a Major Lease without Lender’s prior approval, which approval shall not be unreasonably withheld, conditioned or delayed; provided, further that to the extent that the Deemed Approval Requirements are fully satisfied in connection with a Borrower request for Lender’s consent under this clause (ii) and Lender thereafter fails to respond, Lender’s approval shall be deemed given; (iii) shall not permit Mezzanine A Borrower to permit Mortgage Borrower to collect any of the Rents more than one (1) month in advance (other than Security Deposits); (iv) shall not permit Mezzanine A Borrower to permit Mortgage Borrower to execute any assignment of Mortgage Borrower’s interest in the Leases or the Rents (except as contemplated by the Loan Documents); (v) shall not permit Mezzanine A Borrower to permit Mortgage Borrower, without the Lender’s prior written consent, to alter, modify or change any Lease so as to change the amount of or payment date for rent, change the expiration date, grant any option for additional space or term, materially reduce the obligations of the Tenant or increase the obligations of lessor, in each case, to the extent the same would, individually or in the aggregate, (A) cause any such Lease to violate Section 4.14(a)(i) through (iii) above or (B) have a Material Adverse Effect; and (vi) shall hold all Security Deposits in accordance with Legal Requirements in all material respects. Upon request, Borrower shall furnish Lender with executed copies of all Leases.
(c) Notwithstanding anything contained herein to the contrary, Borrower shall provide to Lender any information regarding renewal, extension, amendment, modification, waiver of provisions of, termination, rental reduction of, surrender of space of, or shortening of the term of, any Major Lease (or at Lender’s reasonable request any Lease) during the term of the Loan within fifteen percent (15%) days after the occurrence of any such event. Borrower further agrees to provide Lender with written notice of any Tenant under a Major Lease “going dark” under such Tenant’s Lease within fifteen (15) days after Mortgage Borrower or Borrower obtains knowledge that such Tenant “has gone dark”. Borrower agrees to provide Lender with written notice of any monetary or material non-monetary default under a Major Lease within fifteen (15) days after Mortgage Borrower or Borrower obtains knowledge of the total rentable square feet occurrence of any such event of default. Borrower’s failure to provide any of the aforesaid notices shall, at Lender’s option, constitute an Event of Default.
(d) Borrower shall notify Lender in writing, within two (2) Business Days following receipt thereof, of Mortgage Borrower’s receipt of any Lease Termination Payment or other termination fee or payment paid by any Tenant under any Lease. During the Propertycontinuance of a Trigger Period, any Lease Termination Payment paid by any Tenant at Property but only to the extent that such Lease Termination Payment paid by such Tenant exceeds Five Hundred Thousand and No/100 Dollars ($500,000.00), shall be deposited into the Leasing Reserve Account (as defined in the Mortgage Loan Agreement) to be held and disbursed in accordance with Section 8.3 of the Mortgage Loan Agreement; and Borrower covenants and agrees that, until deposited in accordance herewith, Mortgage Borrower shall hold any such termination fee or payment in trust for the benefit of Mortgage Lender.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Leases and Rents. (a) Borrower may enter into Mortgagor does hereby absolutely and unconditionally assign to Mortgagee its right, title and interest in all current and future Leases and Rents, it being intended by Mortgagor that this assignment constitutes a proposed Lease (including present, absolute assignment and not an assignment for additional security only. Such assignment to Mortgagee shall not be construed to bind Mortgagee to the renewal performance of any of the covenants, conditions or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided provisions contained in any such proposed Lease or Renewal Lease (i) provides for rental rates otherwise to impose any obligation upon Mortgagee. Mortgagor agrees to execute and terms comparable deliver to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date Mortgagee such Lease is executed by Borrower (unlessadditional instruments, in form and substance reasonably satisfactory to Mortgagee, as may hereafter be requested by Mortgagee to further evidence and confirm such assignment. Nevertheless, subject to the case terms of this paragraph 6, Mortgagee grants to Mortgagor a Renewal Lease, revocable license to operate and manage the rent payable during such renewalMortgaged Property and to collect the Rents. Mortgagor shall hold the Rents, or a formula or other method portion thereof sufficient to compute such rentdischarge all current sums due on the Debt, is provided in trust for the benefit of Mortgagee for use in the original Lease)payment of such sums. Upon an Event of Default, (ii) is an arms-length transaction with a bona fidethe license granted to Mortgagor herein shall be automatically revoked and Mortgagee shall immediately be entitled to possession of all Rents, independent third party tenant, (iii) does whether or not have a materially adverse effect on the value Mortgagee enters upon or takes control of the Property taken as a whole, (iv) Mortgaged Property. Mortgagee is subject hereby granted and subordinate to assigned by Mortgagor the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counselright, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all its option upon the revocation of the conditions license granted herein to enter upon the Mortgaged Property in person, by agent or by court-appointed receiver to collect the Rents. Any Rents collected after the revocation of this Subsectionthe license herein granted may be applied toward payment of he Debt in such priority and proportion as Mortgagee in its discretion shall deem proper.
(b) Borrower Upon request, Mortgagor shall furnish Mortgagee with copies of all Leases and all amendments or modifications of any Lease. All Leases shall provide that each such Lease is subordinate to this Mortgage and that the sublessee agrees to attorn to Mortgagee. Mortgagor
(i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) shall upon requestrequest by Mortgagee, shall promptly send Mortgagee copies to Lender of all notices of default which Borrower shall send sent to or receive thereunderreceived by Mortgagee under the Leases; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon on the part of the tenant lessee thereunder to be observed or performed, ; (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advancewith respect to collection of the final month's rent as security); (v) shall not execute any other assignment of the lessor's interest in any of the Leases leases or the Rents; and (vi) shall not consent execute and deliver at the request of Mortgagee all such further assurances, confirmations and assignments in connection with the Mortgaged Property as Mortgagee shall from time to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lendertime require.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower Mortgagor shall not, without the prior prior, written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, Mortgagee permit the Mortgaged Property to be used or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more occupied by anyone other than the lesser of (i) 15,000 rentable square feet Mortgagor or (ii) fifteen percent (15%) a tenant which is a wholly-owned subsidiary of the total rentable square feet at the PropertyMortgagor or a third party tenant, each under a Lease approved by Mortgagee, and after any such Lease has been so approved by Mortgagee, it may not be amended, modified, terminated, cancelled or surrendered without Mortgagee's written consent.
Appears in 1 contract
Samples: Loan and Security Agreement (Aqua Care Systems Inc /De/)
Leases and Rents. (a) In connection with the Loan, Borrower has absolutely and unconditionally assigned to Lender all of Borrower's right, title and interest in all current and future Leases and Rents, it being intended by Borrower that such assignment constitutes a present, absolute assignment and not an assignment for additional security only. Such assignment to Lender shall not be construed to bind Lender to the performance of any of the covenants, conditions or provisions contained in any such Lease or otherwise to impose any obligation upon Lender. Borrower shall execute and deliver to Lender such additional instruments, in form and substance reasonably satisfactory to Lender, as may enter into hereafter be requested by Lender to further evidence and confirm such assignment. Nevertheless, subject to the terms of this Section, Lender has granted to Borrower a proposed Lease (including revocable license to operate and manage the renewal Mortgaged Property and to collect the Rents. Borrower shall hold the Rents, or extension a portion thereof sufficient to discharge all current sums due on the Debt, in trust for the benefit of Lender for use in the payment of such sums. Upon the occurrence of an existing Lease Event of Default, the license granted to Borrower shall automatically be revoked, and Lender shall immediately be entitled to possession of all Rents, whether or not Lender enters upon or takes control of the Mortgaged Property. Lender is hereby granted and assigned by Borrower the right, at its option, upon revocation of the license granted herein, to enter upon the Mortgaged Property in person, by agent or by court-appointed receiver to collect the Rents. Any Rents collected after revocation of the license may be applied toward payment of the Debt in such priority and proportions as Lender in its discretion shall deem appropriate.
(a "Renewal Lease")b) without Borrower shall furnish Lender with executed copies of all Leases for space in excess of 2,000 square feet at any hotel comprising the prior written consent Mortgaged Property. All renewals of Lender, provided such Leases and all proposed Lease or Renewal Lease (i) provides Leases shall provide for rental rates and terms comparable to existing local market rates and terms shall be arms-length transactions. All proposed Leases shall be subject to the prior approval of Lender except that proposed Leases which: (taking into account the type and quality of the tenanti) as of the date such Lease is executed by Borrower (unless, are for less than 2,000 square feet in the case of a Renewal Lease, aggregate at each hotel comprising the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), Mortgaged Property; (ii) is are the result of an arms-length transaction with a bona fide, independent third party tenant, third-party; (iii) does not have a materially adverse effect on the value of the Property taken as a whole, provide for rental rates comparable to existing market rates; and (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy contain any terms which would materially affect Lender's rights under the requirements set forth in Note, the Mortgage, this Subsection 3.8(a) Agreement, the Assignment, the Environmental Agreement or the other Loan Documents, shall not be subject to the prior approval of Lender Lender. All Leases shall provide that they are subordinate to the Mortgage and its counsel, at Borrower's expensethat the lessee agrees to attorn to Lender. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
shall: (bA) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (iiB) upon request, shall promptly send copies to Lender copies of all notices of default which Borrower shall send or receive thereunder; (iiiC) shall enforce all of the material terms, covenants and conditions contained in the Leases upon Lease on the part of the tenant lessee thereunder to be observed or performed, short of termination thereof (ivwhich shall not be effected without prior notice to Lender and otherwise in accordance with the terms hereof or of the Assignment); (D) shall not collect any of the Rents more than one (1) month in advance advance, except as may be permitted in the Assignment, (except security deposits shall not be deemed Rents collected in advance); (vE) shall not execute any other assignment of the lessor's interest in the Leases or Rents; (F) other than de minimis non-financial amendments, not alter, modify or change the terms of the Leases without the prior written consent of Lender (which consent shall not be unreasonably withheld), or, except if a lessee is in default, cancel or terminate the Leases or accept a surrender thereof or convey or transfer or suffer or permit a conveyance or transfer of the Mortgaged Property or of any interest therein so as to effect a merger of the estates and rights of, or a termination or diminution of the obligations of, lessees thereunder; provided, however, that any Lease may be cancelled if at the time of the cancellation thereof a new Lease is entered into with a bona fide, independent third-party on substantially the same terms or more favorable terms as the cancelled Lease; (G) not alter, modify or change the terms of any guaranty of the Leases or cancel or terminate such guaranty without the Rentsprior written consent of Lender; and (viH) shall not consent to any assignment of or subletting under any the Leases not in accordance with their terms, without the prior written consent of Lender; and (I) execute and deliver at the request of Lender all such further assurances, confirmations and assignments in connection with the Mortgaged Property as Lender shall from time to time request. Notwithstanding anything to the contrary contained in subsection (b) of this Section, the provisions of clauses (B), (C), (F), (G) and (H) of this subsection (b) shall not apply to any Lease the rentable square footage of which is for less than 2,000 square feet.
(c) All security deposits of lessees in excess of $5,000.00, whether held in cash or any other form, shall not be commingled with any other funds of Borrower mayand, without the consent if cash, shall be deposited by Borrower at such commercial or savings bank or banks as may be reasonably satisfactory to Lender. Any bond or other instrument which Borrower is permitted to hold in lieu of cash security deposits under any applicable legal requirements shall be maintained in full force and effect unless replaced by cash deposits as hereinabove described, shall be issued by an institution reasonably satisfactory to Lender, amendshall, modify if permitted pursuant to any legal requirements, name Lender as payee or waive the provisions of any Lease mortgagee thereunder (or terminateat Lender's option, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect theretobe fully assignable to Lender) provided that such action (taking into accountand shall, in the case all respects, comply with any applicable legal requirements and otherwise be reasonably satisfactory to Lender. Borrower shall, upon request, provide Lender with evidence reasonably satisfactory to Lender of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in Borrower's compliance with the requirements foregoing. Following the occurrence and during the continuance of this Security Instrument any Event of Default, Borrower shall, upon Lender's request, if permitted by any applicable legal requirements, turn over to Lender the security deposits (and any subordinate agreement binding upon Lender interest theretofore earned thereon) with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value all or any portion of the Property taken as a whole. Any amendmentMortgaged Property, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall to be held by Lender subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all terms of the conditions of this SubsectionLeases.
(d) Notwithstanding anything contained Anything herein to the contrarycontrary notwithstanding, Borrower Lender's consent shall notnot be required for any modification, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, amendment or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) termination of the total rentable square feet Lease to Bleu Ox, Inc. affecting the restaurant space at the PropertyMortgaged Property located in Council Bluffs, Iowa.
Appears in 1 contract
Leases and Rents. (a) Borrower may enter into a proposed Lease (including is the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality sole owner of the tenant) as of the date such Lease is executed by Borrower (unless, entire lessor’s interest in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
Leases; (b) Borrower there are no Leases now in effect except those specifically assigned to Lender pursuant to the Assignment of Leases; (ic) shall observe and perform all the obligations imposed upon the lessor under the Leases are the valid, binding and shall enforceable obligations of Borrower and the applicable tenant or lessee thereunder; (d) the rent roll attached hereto as Exhibit A (the “Rent Roll”) is true, complete and correct, and the Property is not do or permit subject to be done anything any Leases other than the Leases identified on the Rent Roll, and the terms of all alterations, modifications and amendments to impair the value of any Leases are reflected in the Rent Roll; (e) none of the Leases as security for or Rents have been assigned or otherwise pledged or hypothecated, except pursuant to the DebtAssignment of Leases; (iif) upon request, shall promptly send copies except as disclosed to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of in any tenant estoppel certificates delivered to Lender in connection with the material termsLoan, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any none of the Rents have been collected for more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (vg) shall not execute except as disclosed to Lender in any tenant or landlord estoppel certificates delivered to Lender in connection with the Loan, the premises demised under the Leases have been completed and the tenants under the Leases have accepted the same and have taken possession of the same on a rent-paying basis; (h) except as disclosed to Lender in any tenant or landlord estoppel certificates delivered to Lender in connection with the Loan, there exists no offset or defense to the payment of any portion of the Rents; (i) except as disclosed to Lender in any tenant or landlord estoppel certificates delivered to Lender in connection with the Loan, no Lease contains an option to purchase, right of first refusal to purchase, expansion right, or any other assignment similar provision; (j) no Person has any possessory interest in, or right to occupy, the Property except under and pursuant to a Lease; (k) each Lease is subordinate to the Loan Documents, either pursuant to its terms or a recorded subordination agreement; (l) no Lease has the benefit of a non-disturbance agreement that would be considered unacceptable to prudent institutional lenders; (m) Borrower has not performed any act or executed any instrument which might prevent Lender from performing under any of the lessor's interest terms and conditions of the Assignment of Leases or which would limit Lender in such performance; (n) Borrower has not executed or granted any modification of any Lease which in the aggregate might have a Material Adverse Effect, and (o) except as disclosed to Lender in any tenant or landlord estoppel certificates delivered to Lender in connection with the Loan, to Borrower’s knowledge, there are no defaults or events of defaults under any of the Leases or the Rentswhich have a Material Adverse Effect; and (vi) shall not consent to any assignment Borrower’s knowledge, no events or circumstances exist which with or without the giving of notice, the passage of time or subletting both may constitute a default or event of default under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action Leases which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Propertymight have a Material Adverse Effect.
Appears in 1 contract
Leases and Rents. It is the intention of Mxxxxxxxx to establish a present, absolute and irrevocable transfer and assignment to Mortgagee of all Rents and of all of Mortgagor’s right, title and interest in, to and under the Leases, and Mxxxxxxxx does hereby appoint irrevocably Mortgagee as Mxxxxxxxx’s true and lawful attorney in Mxxxxxxxx’s name and stead, which appointment is coupled with an interest, to collect all said Rents, subject however, to a revocable license hereby granted by Mortgagee to Mortgagor to collect and receive all of the Rents, to hold all Rents in trust for the benefit of Mortgagee and to apply all Rents to pay the installments of interest and principal then due and payable under the Notes and the other amounts then due and payable under the other documents evidencing the Loan and/or indebtedness secured hereby, and to pay the current costs and expenses of managing, operating and maintaining the Property, including utilities, taxes and insurance premiums, tenant improvements and other capital expenditures and to exercise all rights, power and authority granted to Mortgagee under the Leases (a) Borrower may enter into a proposed Lease (including such license evidenced by Mortgagee’s acceptance of this Mortgage), subject to the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease terms and conditions hereof.
(i) provides for rental rates and terms comparable Notwithstanding anything to existing local market rates and terms (taking into account the type and quality contrary herein or in any of the tenant) as of documents evidencing the date such Lease is executed by Borrower (unless, in Loan to the case of a Renewal Leasecontrary, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for assignment in the original Lease), (ii) this Section 38 is an arms-length transaction with a bona fideabsolute, independent third party tenantunconditional and presently effective assignment and not an assignment for additional security only; provided, (iii) does not have a materially adverse effect on however, upon the value occurrence of any Event of Default, Mxxxxxxxx’s revocable license to collect the Property taken Rents set forth above and to exercise all rights, power and authority under the Leases as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) Mortgage shall immediately cease and terminate. Upon or at any time during the continuance of an Event of Default, including but not limited to failure of the Mortgagor to pay any of the items set forth below, or if any material representation or warranty herein proves to be subject untrue, then the Mortgagee, without regard to waste, adequacy of the prior approval security or solvency of Lender the Mortgagor, may declare all indebtedness secured hereby immediately due and its counselpayable and may, at Borrower's expense. Borrower shall promptly deliver its option, without notice:
(A) in person or by agent, with or without taking possession of or entering the Property, with or without any action or proceeding, give or require Mortgagor to Lender copies of give, notice to any or all Leases which are entered into pursuant tenants under any lease authorizing and directing the tenant to this Subsection together with Borrower's certification that it has satisfied pay such Rents and profits to Mortgagee; collect all of the conditions Rents and profits; enforce the payment thereof and exercise all of the rights of the landlord under the leases and all of the rights of Mortgagee hereunder, may enter upon, take possession of, manage and operate said Property, or any part thereof; may cancel, enforce or modify the leases, and fix or modify rents, and do any acts which Mortgagee deems proper to protect the security hereof with or without taking possession of the Property; and/or
(B) apply for the appointment of a receiver in accordance with the statutes and law made and provided for, which receivership Mortgagor hereby consents to, who shall collect the Rents and profits, and all other income of any kind; manage the Property so to prevent waste; execute leases within or beyond the period of receivership, and perform the terms of this SubsectionMortgage and apply the Rents and profits as hereinafter provided.
(bii) Borrower (i) The entering upon and taking possession of the Property, the appointment of a receiver, the collection of such Rents and profits and the application thereof as aforesaid shall observe and perform all the obligations imposed upon the lessor not cure or waive any Event of Default under this Mortgage nor in any way operate to prevent Mortgagee from pursuing any other remedy which it may now or hereafter have under the Leases terms of this Mortgage nor shall it in any way be deemed to constitute Mortgagee a mortgagee-in-possession. The rights and powers of Mortgagee hereunder shall remain in full force and effect both prior to and after any foreclosure of the Mortgage and any sale pursuant thereto and until expiration of the period of redemption from said sale, regardless of whether a deficiency remains from said sale. The purchaser at any foreclosure sale, including Mortgagee, shall have the right, at any time and without limitation as provided in Minn. Stat. § 582.03, to advance money to any receiver appointed hereunder to pay any part or all of the items which the receiver would otherwise be authorized to pay if cash were available from the Property and the sum so advanced, with interest as the rate then in effect under the terms of the Notes, shall be a part of the sum required to be paid to redeem from any foreclosure sale. The rights hereunder shall in no way be dependent upon and shall not do apply without regard to whether the Property is in danger of being lost, materially injured or permit damaged or whether the Property is adequate to be done anything to impair discharge the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; Indebtedness.
(iii) Any Rents collected pursuant to the terms of this Section as described above shall enforce be applied in the following order: (a) to payment of all fees of any receiver appointed hereunder; (b) to application of tenant’s security deposits as required by Mxxx. Stat. § 504B.178; (c) to payment when due of prior or current real estate taxes or special assessments with respect to the Property or, if this Mortgage so requires, to the periodic escrow for payment of taxes or special assessments then due; (d) to payment when due of insurance premiums of the material termstype required by this Mortgage or, covenants and conditions contained in if this Mortgage so required, to the Leases upon periodic escrow for the part payment of the tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rentsinsurance premiums then due; and (vie) to payment of all expenses for normal maintenance of the Property. Any Rents remaining after application of the above item shall be applied to the Indebtedness on a monthly basis. If the Property shall be foreclosed and sold pursuant to a foreclosure sale, then:
(A) if Mortgagee is the purchaser at the foreclosure sale, the Rents shall be paid to Mortgagee to be applied to the extent of any deficiency remaining after the sale, the balance to be retained by Mortgagee, and if the Property be redeemed by Mortgagor or any other party entitled to redeem, to be applied as a credit against the redemption price with any remaining excess rents to be paid to Mortgagor, provided, if the Property not consent be redeemed, any remaining excess rents to any assignment of belong to Mortgagee, whether or subletting under any Leases not in accordance with their terms, without the prior written consent of Lendera deficiency exists.
(cB) Borrower mayif Mortgagee is not the purchaser at the foreclosure sale, without the consent of LenderRents shall be paid to Mortgagee to be applied first, amend, modify or waive to the provisions extent of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten deficiency remaining after the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of termsale, the planned alternative use balance to be retained by the purchaser, and if the Property be redeemed by Mortgagor or any other party entitled to redeem, to be applied as a credit against the redemption price with any remaining excess rents to be paid to Mortgagor, provided, if the Property not be redeemed any remaining excess rents shall be paid first, to the purchaser at the foreclosure sale in an amount equal to the interest accrued upon the sale price pursuant to Minn. Stat. §§ 580.23 or 581.10, then to Mortgagee to the extent of any deficiency remaining unpaid and the remainder to the purchaser. Notwithstanding anything to the contrary contained in this Mortgage, this assignment shall not reduce the indebtedness secured hereby except to the extent that rents, income, receipts, revenues, issues, profits, and proceeds from the Property are actually received by Mortgagee and applied to the indebtedness secured hereby. The rights and powers of Mortgagee and receivers under this Mortgage and the application of Rents under this Section shall continue until expiration of the affected space) does redemption period from any foreclosure sale, whether or not have any deficiency remains after a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectionforeclosure sale.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
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Leases and Rents. (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of LenderXxxxxx, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
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Samples: Deed of Trust and Security Agreement (Corporate Property Associates 15 Inc)
Leases and Rents. (a) Borrower Owner may enter into a proposed Lease (including the renewal or extension of an existing Lease ("a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower Owner (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, unless the lease is with an entity controlled by the Parent, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. : All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at BorrowerOwner's expense, which approval shall not be unreasonably withheld. Borrower Owner shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with BorrowerOwner's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower Owner (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower Owner shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits and estimated operating expenses shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower Owner may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at BorrowerOwner's expense. Borrower Owner shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with BorrowerOwner's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
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Samples: Deed to Secure Debt and Security Agreement (Acuity Brands Inc)
Leases and Rents. (a) Borrower represents and warrants as follows:
(i) Borrower is the sole owner of the entire lessor’s interest in the Leases; (ii) the Leases are valid and enforceable; (iii) the terms of all alterations, modifications and amendments to the Leases are reflected in the certified occupancy statement delivered to and approved by Lender; (iv) none of the Rents reserved in the Leases have been assigned or otherwise pledged or hypothecated; (v) none of the R.ents have been collected for more than one month in advance; (vi) the premises demised under the Leases have been completed and the tenants under the Leases have accepted the same and have taken possession of the same on a rent paying basis; (vii) there exist no offsets or defenses to the payment of any portion of the Rents; (viii) no Lease contains an option to purchase, right of first refusal to purchase, or any other similar provision; and (ix) no Person has any possessory interest in, or right to occupy, the Property except under and pursuant to a Lease,
(b) 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. Upon request, Borrower shall furnish Lender with executed copies of all Leases. No material changes may enter into a proposed Lease (including be made to the renewal or extension of an existing Lease (a "Renewal Lease")) Lender approved standard lease without the prior written consent of Lender, provided such which approval shall not be unreasonably withheld or delayed. In addition, all renewals of Leases and all proposed Lease or Renewal Lease (i) provides Leases shall provide for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an armsshall be arm’s-length transaction transactions with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. tenants All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) and renewals of existing Leases, other than Minor Leases and Leases for residential purposes only (“Residential Leases”), shall be subject to the prior approval of Lender and its counsel, at Borrower's ’s expense. Borrower , which approval shall promptly deliver not be unreasonably withheld or delayed if the proposed Lease or renewal Lease (i) is on the Lender-approved form, subject only to Lender copies of all commercially reasonable variations therefrom, (ii) is negotiated in an arm’s-length transaction with an independent third party tenant and (iii) provides for rental rates and terms comparable to existing local market terms All Leases which are entered into pursuant after the date hereof shall provide that they are subordinate to this Subsection together with Borrower's certification Security Instrument and that it has satisfied all of the conditions of this Subsection.
(b) lessee agrees to attorn to Lender, Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the DebtObligations; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performed, short of termination thereof; however, Borrower may terminate Residential Leases in the ordinary course of business and terminate Leases other than Residential Leases as the result of a default by the lessee thereunder or in connection with the replacement of a Lease with a substitute Lease entered into in accordance with the requirements of this Security Instrument; (iviii) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (vvi) shall not execute any other assignment of the lessor's ’s interest in any of the Leases or the Rents; and (viiv) shall not consent to any assignment alter, modify or change the terms of or subletting under any the Leases not in accordance with their terms, without the prior written consent of Lender., or cancel or terminate the Leases or accept a surrender thereof; (vi) shall not alter, modify or change the terms of any Lease Guaranty with respect to any Lease other than a Residential Lease or cancel or terminate any Lease Guaranty without the prior written consent of Lender
(c) Borrower may, without the consent of Lender, amend, modify or waive Notwithstanding the provisions of any Lease or terminateSubsection 3,8(b), reduce rents under, accept a surrender renewals of existing commercial Leases and proposed Leases for commercial space under, or shorten covering less than twenty percent (20%) of the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, total rentable space for the Property and accounting for rental income which in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use aggregate is less than twenty percent (20%) of the affected space) does not have a materially adverse effect on the value of total rental income for the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender provided that (i) the renewal Lease or proposed Lease shall provide for rental rates and its counselterms comparable to existing local market rates and terms and (ii) the renewal Lease or proposed Lease shall be an arm’s-length transaction with a bona fide, which approval independent third party tenant (Leases meeting the foregoing requirements shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver referred to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsectionherein as “Minor Leases”).
(d) Notwithstanding anything contained herein All security deposits of tenants, whether held in cash or any other form, shall not be commingled with any other funds of Borrower and, if cash, shall be deposited by Borrower at such commercial or savings bank or banks as may be reasonably satisfactory to Lender. Borrower shall, upon request, provide Lender with evidence reasonably satisfactory to Lender of Borrower’s compliance with the foregoing. Following the occurrence and during the continuance of any Event of Default, Borrower shall, upon Lender’s request, if permitted by any applicable legal requirements, turn over to Lender the security deposits (and any interest theretofore earned thereon) with respect to all or any portion of the Property, to be held by Lender subject to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) terms of the total rentable square feet at the Property.Leases
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Leases and Rents. Trustor hereby irrevocably, absolutely, presently and ---------------- unconditionally assigns to Beneficiary the Leases and Rents of the Property. Beneficiary shall have the right to apply the Rents (aafter payment of all necessary expenses) Borrower to the Obligations. THIS IS AN ABSOLUTE ASSIGNMENT, NOT AN ASSIGNMENT FOR SECURITY ONLY. Subject to the terms of this paragraph, Beneficiary and Trustee waive the right to enter the Property for the purpose of collecting the Rents, and grant Trustor the right to collect the Rents. Trustor shall hold the Rents, or an amount sufficient to cover the payment of all operating expenses of the Property and to discharge all current sums due on the Obligations, in trust for use in payment of such current operating expenses and current sums due on the Obligations. The right of Trustor to collect the Rents may enter into be revoked by Beneficiary upon any default by Trustor under the terms of the Note or this Deed of Trust by giving notice of such revocation to Trustor. Following such notice Beneficiary or Trustee may retain and apply the Rents toward payment of the Obligations in such order, priority and proportions as Beneficiary, in its discretion, shall deem proper, or to the operation, maintenance and repair of the Property, and irrespective of whether Beneficiary or Trustee shall have commenced a proposed Lease (including foreclosure of this Deed of Trust or a sale of the renewal Property pursuant to the provisions of this Deed of Trust or extension shall have applied or arranged for the appointment of an existing Lease (a "Renewal Lease")) receiver. Trustor shall not, without the prior written consent of LenderBeneficiary, provided such proposed Lease make, or Renewal Lease suffer to be made, any Leases or modify or cancel (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality except based upon a material default of the tenant) as any Leases or accept prepayments of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed, (iv) shall not collect any installments of the Rents for a period of more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute or further assign the whole or any other assignment part of the lessor's interest Rents. Trustor shall (a) fulfill or perform each and every provision of the Leases on the part of Trustor to be fulfilled or performed, (b) promptly send copies of all notices of default which Trustor shall send or receive under the Leases to Beneficiary, and (c) enforce, short of termination of the Leases, the performance or observance of the provisions thereof by the tenants thereunder. In addition to the rights which Beneficiary may have herein, in the event of any default under this Deed of Trust, Beneficiary, at its option, may require Trustor to pay monthly in advance to Beneficiary, Trustee or any receiver appointed to collect the Rents, the fair and reasonable rental value for the use and occupation of such part of the Property as may be in possession of Trustor. Upon default in any such payment, Trustor will vacate and surrender possession of the Property to Beneficiary, Trustee or to such receiver and, in default thereof, Trustor may be evicted by summary proceedings or otherwise. Nothing contained in this paragraph shall be construed as imposing on Beneficiary or Trustee any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use obligations of the affected space) does not have a materially adverse effect on lessor under the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this SubsectionLeases.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
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Leases and Rents. (a) All security deposits of tenants, whether held in cash or any other form, shall not be commingled with any other funds of Borrower and, if cash, shall be deposited by Borrower at such commercial or savings bank or banks as may enter into a proposed Lease be reasonably satisfactory to Lender. Borrower shall, upon request, provide Lender with evidence reasonably satisfactory to Lender of Borrower’s compliance with the foregoing. Following the occurrence and during the continuance of any Event of Default, Borrower shall, upon Lender’s request, if permitted by any applicable legal requirements, turn over to Lender the security deposits (including and any interest theretofore earned thereon) with respect to all or any portion of the renewal or extension Property, to be held by Lender subject to the terms of an existing Lease the Leases.
(a "Renewal Lease")b) 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. Upon request, Borrower shall furnish Lender with executed copies of all Leases. No material changes may be made to the Lender-approved standard lease without the prior written consent of Lender. In addition, provided such all renewals of Leases and all proposed Lease or Renewal Lease (i) provides leases shall provide for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an shall be arms-length transaction transactions with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lendertenants. All proposed commercial Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) and renewals of existing Leases for commercial space shall be subject to the prior approval of Lender and its counsel, at Borrower's ’s expense. Borrower All Leases shall promptly deliver to Lender copies of all Leases which provide that they are entered into pursuant subordinate to this Subsection together with Borrower's certification Security Instrument and that it has satisfied all of the conditions of this Subsectionlessee agrees to attorn to Lender.
(bc) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the DebtObligations; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performed, short of termination thereof; provided however, a residential Lease may be terminated in the event of a default by the tenant thereunder; (iviii) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (viv) shall not execute any other assignment of the lessor's ’s interest in any of the Leases or the Rents; and (viv) shall not consent to any assignment of or subletting under any the Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.
Appears in 1 contract
Samples: Mortgage and Security Agreement (Paladin Realty Income Properties Inc)
Leases and Rents. (a) Upon request, Borrower may enter into a shall furnish (or shall cause Master Lessee to furnish) Lender with executed copies of all Leases then in effect. All renewals of Leases and all proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides leases shall provide for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-shall be arm’s length transaction transactions with a bona fide, independent third third-party tenantTenants. Within twenty (20) days after the execution of a Lease or any renewals, (iii) does not have amendments or modification of a materially adverse effect on the value of the Property taken as a wholeLease, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection a copy thereof, together with Borrower's ’s certification that it has satisfied all of such Lease (or such renewal, amendment or modification) was entered into in accordance with the conditions terms of this SubsectionAgreement.
(b) All Major Leases and all renewals, amendments and modifications thereof (including, without limitation, any subletting or assignment thereunder not contemplated by the express terms of such Major Lease (other than any subletting or assignment which does not require Borrower’s consent under such Lease)) executed after the date hereof shall be subject to Lender’s prior approval, which approval shall not be unreasonably withheld or delayed.
(c) Lender shall execute and deliver a Subordination, Non-Disturbance and Attornment Agreement on Lender’s then current standard form to Tenants under future Major Leases approved by Lender promptly upon request with such commercially reasonable changes as may be requested by Tenants, from time to time, as are reasonably acceptable to Lender. Lender’s execution of a Subordination, Non-Disturbance and Attornment Agreement which is not in compliance with the foregoing sentence shall be at Lender’s sole discretion and subject to such additional conditions as Lender shall reasonably determine.
(d) Borrower shall, and shall cause Master Lessee to, (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debtin all material respects in a commercially reasonable manner; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performedperformed in a commercially reasonable manner, provided, however, Borrower shall not (ivand shall cause Master Lessee to not) shall terminate or accept a surrender of a Major Lease without Lender’s prior approval; (iii) not collect any of the Rents more than one (1) month in advance (other than security deposits); (iv) not execute any assignment of lessor’s interest in the Leases or the Rents (except security deposits shall not be deemed Rents collected in advanceas contemplated by the Loan Documents); (v) shall not execute not, without Lender’s consent, alter, modify or change any other assignment Major Lease so as to change the amount of or payment date for rent, change the expiration date, grant any option for additional space or term, materially reduce the obligations of the lessee or increase the obligations of lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting hold all security deposits under any all Leases not in accordance with their terms, without the prior written consent of LenderApplicable Law.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(de) Notwithstanding anything contained herein to the contrary, Borrower shall notnot willfully withhold (or permit Master Lessee to willfully withhold) from Lender any information regarding renewal, without the prior written consent extension, amendment, modification, waiver of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminatetermination, reduce rents underrental reduction of, accept a surrender of space underof, or shorten shortening of the term of, any Major Lease. The Lease during the term "Major Lease" of the Loan.
(f) Borrower shall mean notify Lender in writing, within two (2) Business Days following receipt thereof, of Borrower’s or Master Lessee’s receipt of any termination fee or payment (“Lease Event Payment”) paid by any Tenant under any Lease between or by Master Lessee in consideration of any termination, modification or amendment or settlement of any Lease or the Master Lease or any release or discharge of any Tenant under any Lease, or Master Lessee under the Master Lease, from any obligation thereunder (a “Lease Event”). Borrower as landlord further covenants and a third party as tenant demising in the aggregate more than the lesser of agrees that (i) 15,000 rentable square feet Borrower shall hold (or shall cause Master Lessee to hold) any such Lease Event Payment in trust for the benefit of Lender and (ii) fifteen percent (15%A) in the event such Lease Event Payment is less than $50,000 and such Lease Event does not have a Material Adverse Effect, such Lease Event Payment shall be payable to Borrower (or Master Lessee, as the case may be) or (B) in the event such Lease Event Payment equals or exceeds $50,000 or such Lease Event has a Material Adverse Effect and provided there is no Event of Default or Cash Trap Event Period, such Lease Event Payment shall be placed by Borrower (or Master Lessee, as the case may be) in reserve with Lender, to be disbursed by Lender for tenant improvement and leasing commission costs with respect to the Property and/or for payment of the total rentable square feet at Debt or otherwise in connection with the Loan and/or the Property, as so determined by Lender, in its sole discretion.
(g) Notwithstanding anything to the contrary contained herein, to the extent Lender’s prior approval is required for any leasing matters set forth in this Section 4.14, Lender shall have ten (10) Business Days from receipt of written request and all required information and documentation relating thereto in which to approve or disapprove such matter, provided that such request to Lender is marked in bold lettering with the following language: “LENDER’S RESPONSE IS REQUIRED WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER” and the envelope containing the request must be marked “PRIORITY”. In the event that Lender fails to respond to the leasing matter in question within such time, Lender’s approval shall be deemed given for all purposes. Borrower shall provide (or shall cause Master Lessee to provide) Lender with such information and documentation as may be reasonably required by Lender, including, without limitation, lease comparables and other market information as reasonably required by Lender. For purposes of clarification, Lender requesting additional and/or clarified information, in addition to approving or denying any request (in whole or in part), shall be deemed a response by Lender for purposes of the foregoing.
Appears in 1 contract
Leases and Rents. (a) 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. Upon request, Borrower shall furnish Lender with executed copies of all. Leases. No material changes may enter into a proposed Lease (including he made to the renewal or extension of an existing Lease (a "Renewal Lease")) Lender-approved standard lease without the prior written consent of Lender, provided such which approval shall not be unreasonably withheld or delayed. In addition, all renewals of Leases and all proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an leases shall be arms-length transaction transactions with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lendertenants. All proposed leases and renewals of existing Leases, other than Minor Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) (hereinafter defined), shall be subject to the prior approval of Lender and its counsel, at Borrower's expense, which approval shall not be unreasonably withheld or delayed if the proposed Lease or renewal Lease i1 is on the Lender-approved form, subject only to commercially reasonable variations therefrom, and (ii) is negotiated in an arms-length transaction with an independent third party tenant. Borrower shall promptly deliver to Lender copies of all All Leases which are entered into pursuant after the date hereof shall provide that they are subordinate to this Subsection together with Borrower's certification Security Instrument and that it has satisfied all of the conditions of this Subsection.
(b) lessee agrees to attom to Lender. Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon requestshall, shall for Leases other than Minor Leases, promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; , (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant lessee thereunder to be observed or performedperformed short of termination thereof; Borrower may terminate, however, Minor Leases as the result of a default by lessee thereunder, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.;
Appears in 1 contract
Samples: Assumption and Release Agreement (Blue Ridge Real Estate Co)
Leases and Rents. (a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates covenants and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. that Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.
(b1) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security landlord under each Lease, (2) use best efforts to keep the Property leased at all times to Tenants whom Borrower, reasonably and in good faith, believes are creditworthy and at rents not less than comparable existing market rates or applicable rates allowed by law (if lower) for the Debt; similar properties, (ii3) upon request, shall promptly send copies to Lender of all notices of material default which Borrower shall send sends or receive thereunder; receives with respect to any Lease, (iii4) shall use best efforts to enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder each Tenant to be observed or performed, (iv5) shall other than the collection of Rent for the first and/or last month of a Lease, not collect any of the Rents more than one (1) month in advance advance, (except security deposits it being understood that Tenant Security shall not be deemed Rents Rent collected in advance); , nor grant any Tenant any right to prepay Rent more than one (v1) shall month in advance, (6) not execute any other assignment of the lessor's landlord’s interest in any of the Leases or the Rents; , (7) not materially (or adversely to the landlord) change the terms of any Lease, (8) keep in full force and effect and not cancel or terminate any Lease (viexcept for defaults thereunder) shall or accept a surrender thereof or convey or transfer or suffer or permit a conveyance or transfer of the Property or of any interest therein so as to effect a merger of the estates and rights of, or a termination or diminution of the obligations of, Tenants thereunder, (9) not cancel, release (except upon termination of the applicable Lease) or change the terms of any Tenant Security, (10) not consent to any assignment of of, or subletting under, the Leases, unless required to do so under any applicable Laws, or pursuant to the terms of the Lease, (11) intentionally omitted, (12) only enter into Leases that are a result of an arms-length transaction and only enter into Leases with Persons that are not in accordance Affiliates of Borrower, (13) other than the existing Lease with their termsthe City of New York, without Dept, of Citywide Administrative Services, not enter into a single Lease or a series of related Leases for more than five percent (5.00%) of the prior written consent total rentable space of Lender.
(c) Borrower maythe Property, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does consent not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, (14) promptly upon Lender’s request, execute and record (a) any additional assignments of the landlord’s interest under any Lease to Lender and (b) a specific subordination of any Lease to this Mortgage, both in form and substance satisfactory to Lender, (15) not do, or permit to be done, anything to impair the value of the Leases as security for the Secured Obligations, (16) not grant any Tenant any option, right of first refusal or other right to purchase all or any portion of the Property, (17) not enter into any Lease without the consent of Lender, such consent not to be unreasonably withheld or delayed, and (18) not engage in any action(s), omission(s), malfeasance or nonfeasance which would constitute the constructive eviction or attempted constructive eviction of any Tenant. Upon request, Borrower shall furnish Lender with executed copies of all Leases. Each non-residential Lease entered into subsequent to the date hereof shall provide that in the event of the enforcement by Lender of the remedies provided for hereby or by Law, the Tenant thereunder will, upon request and at Borrower's expensethe option of any Person succeeding to the interest of Borrower as a result of such enforcement, automatically become the lessee of said successor in interest and attorn to said successor in interest, without change in the terms or other provisions of the Lease, provided, however, that (A) said successor in interest shall not be bound by (i) any payment of Rent for more than one (1) month in advance, except prepayments in the nature of Tenant Security to the extent actually received by said successor in interest or (ii) any amendment or modification of the Lease made without the consent of Lender or such successor in interest. Each Lease shall also provide that (a) the Lease is subordinate to this Mortgage and (b) upon request by said successor in interest, such Tenant shall execute and deliver an instrument or instruments confirming such attornment. Lender hereby refers to Section 291-f of the Real Property Law of the State of New York and Borrower acknowledges Lender’s rights under the statute, specifically with respect to subparagraphs 5, 7, 8 and 9 as hereinabove set forth. Lender shall have all the rights against lessees of the Mortgaged Property as set forth in Section 291-f of the Real Property Law of New York. Mortgage CD Form 127 Page 20 Loan No. 110686537 File No. 123-33001 04-09-11 Borrower shall, promptly upon Lender’s request, deliver to Lender an executed copy of each Lease then in effect. All Leases shall be on forms approved by Lender, shall be for initial terms of at least six months and, with respect to individual apartment residential Leases, not more than two years, and shall not include options to purchase. If customary in the applicable market, residential Leases with terms of less than six months may be permitted with Lender’s prior written consent. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all not lease any portion of the conditions Property for non-residential use except with the prior written consent of Lender, such consent not to be unreasonably withheld or delayed, and Lender’s prior written approval of each Lease. Borrower shall not modify the terms of, or extend or terminate, any Lease for non-residential use (including any Lease in existence on the date of this Subsection.
(dInstrument) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter intosuch consent not to be unreasonably withheld or delayed. Borrower shall, renewwithout request by Lender, extenddeliver an executed copy of each non-residential Lease to Lender promptly after such Lease is signed. All non-residential Leases, amendincluding renewals or extensions of existing Leases, modifyshall specifically provide and shall be deemed to include provisions that (1) such Leases are subordinate to the lien of this Instrument (unless waived in writing by Lender); (2) the Tenant shall attorn to Lender and any purchaser at a foreclosure sale, waive such attornment to be self-executing and effective upon acquisition of title to the Property by any provisions ofpurchaser at a foreclosure sale or by Lender in any manner; (3) the Tenant agrees to execute such further evidences of attornment as Lender or any purchaser at a foreclosure sale may from time to time request; (4) the Lease shall not (unless the Lender determines at any time to the contrary) be terminated by foreclosure or any other transfer of the Property; (5) after a foreclosure sale of the Property, terminateLender or any other purchaser at such foreclosure sale may, reduce rents underat Lender’s or such purchaser’s option, accept or terminate such Lease; and (6) the Tenant shall, upon receipt after the occurrence of an Event of Default of a surrender of space underwritten request from Lender, or shorten pay all Rents payable under the term of, any Major LeaseLease to Lender. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the Property.Mortgage CD Form 127 Page 21 Loan No. 110686537 File No. 123-33001 04-09-11
Appears in 1 contract
Samples: Consolidation, Modification and Extension Agreement (Clipper Realty Inc.)
Leases and Rents. 5.01 Mortgagor to Comply with Leases. Mortgagor will, at its own cost and expense:
(a) Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a "Renewal Lease")) without the prior written consent of LenderFaithfully abide by, provided such proposed Lease or Renewal Lease (i) provides for rental rates perform and terms comparable to existing local market rates discharge each and terms (taking into account the type every obligation, covenant and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a materially adverse effect on the value of the Property taken as a whole, (iv) is subject and subordinate to the Security Instrument and the lessee thereunder agrees to attorn to Lender, and (v) is written on the standard form of lease approved by Lender. All proposed Leases which do not satisfy the requirements set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel, at Borrower's expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.agreement under any Leases;
(b) Borrower (i) shall observe Enforce or secure the performance of each and perform all every obligation, covenant, condition and agreement of each Lease by the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) upon request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant tenants thereunder to be observed or performed, (iv) shall not collect any of the Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) shall not execute any other assignment of the lessor's interest in any of the Leases or the Rents; and (vi) shall not consent to any assignment of or subletting under any Leases not in accordance with their terms, without the prior written consent of Lender.;
(c) Borrower mayNot borrow against, without pledge or further assign any Rents due under any Leases;
(d) Not permit the consent prepayment of Lenderany Rents due under any Lease for more than thirty (30) days in advance nor anticipate, amenddiscount, modify compromise, forgive or waive any such Rents;
(e) Not waive, excuse, condone or in any manner release or discharge any tenants of or from the provisions of obligations, covenants, conditions and agreements by said tenants to be performed under the Leases;
(f) Not materially modify, alter or waive any Lease or terminate, reduce rents under, accept a surrender of space underany part or provision thereof, or shorten the term ofterminate or cancel any Lease, or any Lease part or provision thereof, except as approved in advance and in writing from time to time by Mortgagee;
(including g) Promptly provide to Mortgagee executed copies of any guaranty, letter of credit Leases (and any guaranties or other credit support enhancements with respect thereto), and amendments, renewals or modifications to Leases (and any guaranties or other credit enhancements with respect thereto) provided entered into by Mortgagor from and after the date of this Mortgage;
(h) Submit to Mortgagee for Mortgagee's prior written approval any standard lease forms that such action (taking into account, Mortgagor uses or intends to use in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a materially adverse effect on the value of the Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance connection with the requirements of this Security Instrument and any subordinate agreement binding upon Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond applicable notice and grace periods shall not be considered an action which has a materially adverse effect on the value of the Property taken as a whole. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this Subsection shall be subject to the prior approval of Lender and its counsel, which approval shall not be unreasonably withheld or delayed, at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this Subsection together with Borrower's certification that it has satisfied all of the conditions of this Subsection.Property; and
(d) Notwithstanding anything contained herein to the contrary, Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease. The term "Major Lease" shall mean any Lease between Borrower as landlord and a third party as tenant demising in the aggregate more than the lesser of (i) 15,000 rentable square feet or (ii) fifteen percent (15%) of the total rentable square feet at the PropertyNot enter into any Lease unless such Lease is satisfactory to Mortgagee prior to execution.
Appears in 1 contract
Samples: Mortgage (Thackeray Corp)
