OBLIGATIONS OF BORROWER AS LESSOR. To perform every obligation of the Borrower (as the lessor) and enforce every obligation of the lessee in any and every lease or other occupancy agreement affecting the Property or any part thereof (hereinafter referred to as the "Occupancy Leases"), and not to modify, alter, waive or cancel any such Occupancy Leases or any part thereof, nor collect for more than thirty (30) days in advance any rents that may be collectible under any such Occupancy Leases and, except as provided for in this Security Deed, not to assign any such Occupancy Lease or any such rents to any party other than Lender, without the prior written consent of the Lender. In the event of default under any such Occupancy Lease by reason of failure of the Borrower to keep or perform one or more of the covenants, agreements or conditions thereof, the Lender is hereby authorized and empowered, and may, at its sole option, remedy, remove or cure any such default, and further, Lender may, at its sole option and in its sole discretion, but without obligation to do so, pay any sum of money deemed necessary by it for the performance of said covenants, agreements and conditions, or for the curing or removal of any such default, and incur all expenses and obligations which it may consider necessary or reasonable in connection therewith, and Borrower shall repay on demand all such sums so paid or advanced by Lender together with interest thereon until paid at the lesser of either (i) the highest rate then allowed by the laws of the State of Georgia, or, if controlling, the laws of the United States, or (ii) the then-applicable interest rate of the Note plus five hundred (500) basis points; all of such sums, if unpaid, shall be added to and become part of the indebtedness secured hereby. All such Occupancy Leases hereafter made shall be subject to the approval of Lender and (a) shall be at competitive market rental rates then prevailing in the geographic area for apartment complexes comparable to the Property and (b) at Lender's option shall be superior or subordinate in all respects to the lien of this Security Deed. Provided, however, that the Lender shall not require approval in advance of any Occupancy Leases which conform to the Borrower's Form Lease (as hereinafter defined) as previously approved by Lender, except as set forth below. Neither the right nor the exercise of the right herein granted unto Lender to keep or perform any such covenants, agreements, or conditions as aforesaid shall preclude Lender from exercising its option to cause the whole indebtedness secured hereby to become immediately, but subject to the notice and cure period in Paragraph 23, due and payable by reason of Borrower's default in keeping or performing any such covenants, agreements or conditions as hereinabove required. Lender has heretofore approved a form of Occupancy Lease to be used by Borrower in connection with the Property (hereinafter referred to as the "Form Lease"). Borrower shall not, without the prior written consent of the Lender, modify or alter the Form Lease in any material respect. In addition Borrower shall not, without the prior written consent of Lender, surrender or terminate (except in the ordinary course of business), either orally or in writing, any Occupancy Lease now existing or hereafter made for all or part of the Property, permit an assignment or sublease of any such Occupancy Lease, or request or consent to the subordination of any Occupancy Lease to any lien subordinate to this Security Deed. Upon request, the Borrower shall furnish the Lender with copies of all executed Occupancy Leases of all or any part of the Property now existing or hereafter made, and Borrower shall assign to the Lender (which assignment shall be in form and content acceptable to Lender), as additional security for the Note, all Occupancy Leases now existing or hereafter made of all or any part of the Property.
Appears in 3 contracts
Samples: Deed to Secure Debt and Security Agreement (Roberts Realty Investors Inc), Deed to Secure Debt and Security Agreement (Roberts Realty Investors Inc), Deed to Secure Debt and Security Agreement (Roberts Realty Investors Inc)
OBLIGATIONS OF BORROWER AS LESSOR. To (a) Borrower shall perform every obligation of the Borrower (as the lessorlandlord) and enforce every obligation of the lessee tenant in any and every lease lease, license or other occupancy agreement of or affecting the Property or any part thereof (hereinafter referred to as the "“Occupancy Leases"”), and not to modify, alter, waive or cancel any such Occupancy Leases or any part thereofthereof or rights thereunder, without the prior written consent of Lender (but such consent shall not be required for such action as to Occupancy Leases of three thousand (3,000) square feet or less if such action is in the ordinary course of business of owning and operating the Property in a prudent and business-like manner, on then current market terms), nor collect for more than thirty (30) days in advance of the date due any rents Rents that may be collectible under any such Occupancy Leases and, except as provided for in this Security DeedMortgage, not to assign any such Occupancy Lease Lease(s) or any such rents Rents relating thereto, to any party other than Lender, without the prior written consent of the Lender. Borrower will notify Lender in writing of any default under any Occupancy Lease. In the event of default under any such Occupancy Lease by reason of failure of the Borrower to keep or perform one or more of the covenants, agreements or conditions thereof, the Lender is hereby authorized and empowered, and may, at its sole option, remedy, remove or cure any such default, and further, Lender may, at its sole option and in its sole discretion, discretion but without obligation to do so, pay any sum of money deemed necessary by it Lender for the performance of said covenants, agreements and conditions, or for the curing or removal of any such default, and incur all expenses and obligations which it Lender may consider necessary or reasonable in connection therewith, and Borrower shall repay on demand all such sums so paid or advanced by Lender together with interest thereon until paid at the lesser of either either: (i) the highest rate of interest then allowed by the laws Laws of the State of GeorgiaFlorida, or, if controlling, the laws Laws of the United States, or (ii) the then-then applicable interest rate of the Note plus five hundred (500) basis pointspoints per annum; all of such sums, if unpaid, shall be added to and become part of the indebtedness secured hereby. Loan.
(b) All such Occupancy Leases hereafter made shall be subject to the approval of Lender and and: (ai) shall be at competitive market rental rates then prevailing in the geographic area for apartment complexes projects used for the Existing Use comparable to the Property Property; (ii) shall have lease terms of not less than three (3) years; and (biii) at Lender's option ’s option, shall be superior or subordinate in all respects to the lien of this Security DeedMortgage. Provided, however, that the Lender shall not require approval in advance of any Occupancy Leases which conform to the Borrower's ’s Form Lease (as hereinafter defined) as previously approved by LenderXxxxxx, except as set forth below. Neither the right nor the exercise of the right herein granted unto Lender to keep or perform any such covenants, agreements, agreements or conditions as aforesaid shall preclude Lender from exercising its option to cause the whole indebtedness Loan secured hereby to become immediately, but subject to the notice and cure period in Paragraph 23, immediately due and payable by reason of Borrower's ’s default in keeping or performing any such covenants, agreements or conditions as hereinabove required. conditions.
(c) Lender has heretofore approved a form of Occupancy Lease to be used by Borrower in connection with the Property (hereinafter referred to as the "“Form Lease"”). Borrower shall not, without the prior written consent of the LenderXxxxxx, modify or alter the Form Lease in any material respect. In addition addition, Borrower shall not, without the prior written consent of LenderXxxxxx, surrender surrender, terminate, modify or terminate (except in the ordinary course of business)alter, either orally or in writing, any Occupancy Lease now existing or hereafter made with any Major Tenant (as hereinafter defined) for all or part of the Property, permit an assignment or sublease of any such Occupancy Lease, or request or consent to the subordination of any Occupancy Lease to any lien subordinate to this Security DeedMortgage. Upon request, the Borrower shall furnish the Lender with copies of all executed Occupancy Leases of all or any part of the Property now existing or hereafter made, and Borrower shall assign to the Lender (which assignment shall be in form and content acceptable to Lender), as additional security for the NoteNote and the Loan, all Occupancy Leases now existing or hereafter made of for all or any part of the Property. Additionally, if any Occupancy Lease contains a provision allowing the tenant to terminate their lease upon payment of a lease termination fee, Borrower agrees that all such sums shall constitute rent, and shall be paid to Lender so long as this Mortgage is in effect. Notwithstanding the foregoing approval by Lender of Borrower’s Form Lease, Lender hereby specifically reserves the right to approve all prospective tenants under all Occupancy Leases hereafter proposed to be made if either: (i) the term thereof, excluding options to renew the same, exceeds five (5) years; or (ii) the net rentable area to be occupied thereunder, including expansion options, exceeds ten percent (10%) of the net leasable area of each of the buildings comprising the Improvements (the tenants under such leases being hereinafter referred to as “Major Tenants”). Borrower shall notify Lender in writing of all prospective Major Tenants, and shall deliver to Lender, at Xxxxxxxx’s sole cost and expense, a copy of the prospective Major Xxxxxx’s current financial statement and the most recent Dun & Xxxxxxxxxx credit report on said prospective Major Tenant. The financial statement delivered to Lender hereunder shall be certified as true and correct by the Major Tenant, or, if available, by a certified public accountant. If Lender fails to respond within ten (10) business days after receipt from Borrower of an Occupancy Lease, together with tenant credit information, Lender shall be deemed to have approved such Occupancy Lease; provided that all items so submitted shall be sent certified mail, labeled with the following statement: “TIME SENSITIVE RESPONSE REQUIRED WITHIN TEN (10) BUSINESS DAYS OF ACTUAL RECEIPT.
(d) In no event shall Borrower exercise any right to relocate any lessee outside the Property pursuant to any right set forth in an Occupancy Lease without the prior written consent of Lender.
Appears in 1 contract
Samples: Mortgage and Security Agreement (Inland Western Retail Real Estate Trust Inc)
OBLIGATIONS OF BORROWER AS LESSOR. To (a) Borrower shall perform every obligation of the Borrower (as the lessorlandlord) and enforce every obligation of the lessee tenant in any and every lease lease, license or other occupancy agreement of or affecting the Property or any part thereof (hereinafter referred to as the "Occupancy LeasesOCCUPANCY LEASES"), and not to modify, alter, waive or cancel any such Occupancy Leases or any part thereofthereof or rights thereunder, without the prior written consent of Lender (but such consent shall not be required for such action as to Occupancy Leases of three thousand (3,000) square feet or less if such action is in the ordinary course of business of owning and operating the Property in a prudent and business-like manner, on then current market terms), nor collect for more than thirty (30) days in advance of the date due any rents Rents that may be collectible under any such Occupancy Leases and, except as provided for in this Security DeedMortgage, not to assign any such Occupancy Lease Lease(s) or any such rents Rents relating thereto, to any party other than Lender, without the prior written consent of the Lender. Borrower will notify Lender in writing of any default under any Occupancy Lease. In the event of default under any such Occupancy Lease by reason of failure of the Borrower to keep or perform one or more of the covenants, agreements or conditions thereof, the Lender is hereby authorized and empowered, and may, at its sole option, remedy, remove or cure any such default, and further, Lender may, at its sole option and in its sole discretion, discretion but without obligation to do so, pay any sum of money deemed necessary by it Lender for the performance of said covenants, agreements and conditions, or for the curing or removal of any such default, and incur all expenses and obligations which it Lender may consider necessary or reasonable in connection therewith, and Borrower shall repay on demand all such sums so paid or advanced by Lender together with interest thereon until paid at the lesser of either either: (i) the highest rate of interest then allowed by the laws Laws of the State of GeorgiaState, or, if controlling, the laws Laws of the United States, or (ii) the then-then applicable interest rate of the Note plus five Oklahoma City, Oklahoma hundred (500) basis pointspoints per annum; all of such sums, if unpaid, shall be added to and become part of the indebtedness secured hereby. Loan.
(b) All such Occupancy Leases hereafter made shall be subject to the approval of Lender and and: (ai) shall be at competitive market rental rates then prevailing in the geographic area for apartment complexes projects used for the Existing Use comparable to the Property Property; (ii) shall have lease terms of not less than three years; and (biii) at Lender's option option, shall be superior or subordinate in all respects to the lien of this Security DeedMortgage. Provided, however, that the Lender shall not require approval in advance of any Occupancy Leases which conform to the Borrower's Form Lease (as hereinafter defined) as previously approved by Lender, except as set forth below. Neither the right nor the exercise of the right herein granted unto Lender to keep or perform any such covenants, agreements, agreements or conditions as aforesaid shall preclude Lender from exercising its option to cause the whole indebtedness secured hereby Loan to become immediately, but subject to the notice and cure period in Paragraph 23, immediately due and payable by reason of Borrower's default in keeping or performing any such covenants, agreements or conditions as hereinabove required. conditions.
(c) Lender has heretofore approved a form of Occupancy Lease to be used by Borrower in connection with the Property (hereinafter referred to as the "Form LeaseFORM LEASE"). Borrower shall not, without the prior written consent of the Lender, modify or alter the Form Lease in any material respect. In addition addition, Borrower shall not, without the prior written consent of Lender, surrender surrender, terminate, modify or terminate (except in the ordinary course of business)alter, either orally or in writing, any Occupancy Lease now existing or hereafter made with any Major Tenant (as hereinafter defined) for all or part of the Property, permit an assignment or sublease of any such Occupancy Lease, or request or consent to the subordination of any Occupancy Lease to any lien subordinate to this Security DeedMortgage. Upon request, the Borrower shall furnish the Lender with copies of all executed Occupancy Leases of all or any part of the Property now existing or hereafter made, and Borrower shall assign to the Lender (which assignment shall be in form and content acceptable to Lender), as additional security for the NoteNote and the Loan, all Occupancy Leases now existing or hereafter made of for all or any part of the Property.
(d) Notwithstanding the foregoing approval by Lender of Borrower's Form Lease, Lender hereby specifically reserves the right to approve all prospective tenants under all Occupancy Leases hereafter proposed to be made if either: (i) the term thereof, excluding options to renew the same, exceeds five years; or (ii) the net rentable area to be occupied thereunder, including expansion options, exceeds ten percent (10%) of the net leasable area of each of the buildings comprising the Improvements (the tenants under such leases being hereinafter referred to as "MAJOR TENANTS"). Borrower shall notify Lender in writing of all prospective Major Tenants, and shall deliver to Lender, at Borrower's sole cost and expense, a copy of the prospective Major Tenant's current financial statement and the most recent Dun & Bradstreet credit report on said prospective Major Tenant. The financial statement delivered to Lender hereunder shall be certified as true and correct by the Major Tenant, or, if available, by a certified public accountant. Oklahoma City, Oklahoma
(e) In no event shall Borrower exercise any right to relocate any tenant outside the Property pursuant to any right set forth in an Occupancy Lease without the prior written consent of Lender.
Appears in 1 contract
Samples: Mortgage and Security Agreement (Agree Realty Corp)
OBLIGATIONS OF BORROWER AS LESSOR. To (a) Borrower shall perform every obligation of the Borrower (as the lessorlandlord) and enforce every obligation of the lessee tenant in any and every lease lease, license or other occupancy agreement of or affecting the Property or any part thereof (hereinafter referred to as the "“Occupancy Leases"”), and not to modify, alter, waive or cancel any such Occupancy Leases or any part thereofthereof or rights thereunder, without the prior written consent of Lender (but such consent shall not be required for such action as to Occupancy Leases of three thousand (3,000) square feet or less if such action is in the ordinary course of business of owning and operating the Property in a prudent and business-like manner, on then current market terms), nor collect for more than thirty (30) days in advance of the date due any rents Rents that may be collectible under any such Occupancy Leases and, except as provided for in this Security DeedMortgage, not to assign any such Occupancy Lease Lease(s) or any such rents Rents relating thereto, to any party other than Lender, without the prior written consent of the Lender. Borrower will notify Lender in writing of any default under any Occupancy Lease. In the event of default under any such Occupancy Lease by reason of failure of the Borrower to keep or perform one or more of the covenants, agreements or conditions thereof, the Lender is hereby authorized and empowered, and may, at its sole option, remedy, remove or cure any such default, and further, Lender may, at its sole option and in its sole discretion, discretion but without obligation to do so, pay any sum of money deemed necessary by it Lender for the performance of said covenants, agreements and conditions, or for the curing or removal of any such default, and incur all expenses and obligations which it Lender may consider necessary or reasonable in connection therewith, and Borrower shall repay on demand all such sums so paid or advanced by Lender together with interest thereon until paid at the lesser of either either: (i) the highest rate of interest then allowed by the laws Laws of the State of GeorgiaFlorida, or, if controlling, the laws Laws of the United States, or (ii) the then-then applicable interest rate of the Note plus five hundred (500) basis pointspoints per annum; all of such sums, if unpaid, shall be added to and become part of the indebtedness secured hereby. Loan.
(b) All such Occupancy Leases hereafter made and all future leases shall be subject to the approval of Lender and and: (ai) shall be at competitive market rental rates then prevailing in the geographic area for apartment complexes projects used for the Existing Use comparable to the Property Property; (ii) shall have lease terms of not less than three (3) years; and (biii) at Lender's option ’s option, shall be superior or subordinate in all respects to the lien of this Security DeedMortgage. Provided, however, that the Lender shall not require approval in advance of any Occupancy Leases which which, conform to the Borrower's ’s Form Lease (as hereinafter defined) as previously approved by Lender, except as set forth below. Neither the right nor the exercise of the right herein granted unto Lender to keep or perform any such covenants, agreements, agreements or conditions as aforesaid shall preclude Lender from exercising its option to cause the whole indebtedness Loan secured hereby to become immediately, but subject to the notice and cure period in Paragraph 23, immediately due and payable by reason of Borrower's ’s default in keeping or performing any such covenants, agreements or conditions as hereinabove required. conditions.
(c) Lender has heretofore approved a form of Occupancy Lease to be used by Borrower in connection with the Property (hereinafter referred to as the "“Form Lease"”). Borrower shall not, without the prior written consent of the Lender, modify or alter the Form Lease in any material respect. In addition addition, Borrower shall not, without the prior written consent of Lender, surrender surrender, terminate, modify or terminate (except in the ordinary course of business)alter, either orally or in writing, any Occupancy Lease now existing or hereafter made with any Major Tenant (as hereinafter defined) for all or part of the Property, permit an assignment or sublease of any such Occupancy Lease, or request or consent to the subordination of any Occupancy Lease to any lien subordinate to this Security DeedMortgage except as set forth in any such Occupancy Lease which has been specifically approved by Lender. Upon request, the Borrower shall furnish the Lender with copies of all executed Occupancy Leases of all or any part of the Property now existing or hereafter made, and Borrower shall assign to the Lender (which assignment shall be in form and content acceptable to Lender), as additional security for the NoteNote and the Loan, all Occupancy Leases now existing or hereafter made of for all or any part of the Property. Additionally, if any Occupancy Lease contains a provision allowing the tenant to terminate their lease upon payment of a lease termination fee, Borrower agrees that all such sums shall constitute rent, and shall be paid to Lender so long as this Mortgage is in effect. Notwithstanding the foregoing approval by Lender of Borrower’s Form Lease, Lender hereby specifically reserves the right to approve all prospective tenants under all Occupancy Leases hereafter proposed to be made if either: (i) the term thereof, excluding options to renew the same, exceeds five (5) years; or (ii) the net rentable area to be occupied thereunder, including expansion options, exceeds ten percent (10%) of the net leasable area of each of the buildings comprising the Improvements (the tenants under such leases being hereinafter referred to as “Major Tenants”). Borrower shall notify Lender in writing of all prospective Major Tenants, and shall deliver to Lender, at Borrower’s sole cost and expense, a copy of the prospective Major Tenant’s current financial statement and the most recent Dun & Bradstreet credit report on said prospective Major Tenant, if available. The financial statement delivered to Lender hereunder shall be certified as true and correct by the Major Tenant, or, if available, by a certified public accountant.
(d) In no event shall Borrower exercise any right to relocate any lessee outside the Property pursuant to any right set forth in an Occupancy Lease without the prior written consent of Lender.
Appears in 1 contract
OBLIGATIONS OF BORROWER AS LESSOR. To (a) Borrower shall perform every obligation of the Borrower (as the lessorlandlord) and enforce every obligation of the lessee tenant in any and every lease lease, license or other occupancy agreement of or affecting the Property or any part thereof (hereinafter referred to as the "Occupancy LeasesOCCUPANCY LEASES"), and not to modify, alter, waive or cancel any such Occupancy Leases or any part thereofthereof or rights thereunder, without the prior written consent of Lender (but such consent shall not be required for such action as to Occupancy Leases of three thousand (3,000) square feet or less if such action is in the ordinary course of business of owning and operating the Property in a prudent and business-like manner, on then current market terms), nor collect for more than thirty (30) days in advance of the date due any rents Rents that may be collectible under any such Occupancy Leases and, except as provided for in this Security DeedMortgage, not to assign any such Occupancy Lease Lease(s) or any such rents Rents relating thereto, to any party other than Lender, without the prior written consent of the Lender. Borrower will notify Lender in writing of any default under any Occupancy Lease. In the event of default under any such Occupancy Lease by reason of failure of the Borrower to keep or perform one or more of the covenants, agreements or conditions thereof, the Lender is hereby authorized and empowered, and may, at its sole option, remedy, remove or cure any such default, and further, Lender may, at its sole option and in its sole discretion, discretion but without obligation to do so, pay any sum of money deemed necessary by it Lender for the performance of said covenants, agreements and conditions, or for the curing or removal Omaha, Nebraska of any such default, and incur all expenses and obligations which it Lender may consider necessary or reasonable in connection therewith, and Borrower shall repay on demand all such sums so paid or advanced by Lender together with interest thereon until paid at the lesser of either either: (i) the highest rate of interest then allowed by the laws Laws of the State of GeorgiaState, or, if controlling, the laws Laws of the United States, or (ii) the then-then applicable interest rate of the Note plus five hundred (500) basis pointspoints per annum; all of such sums, if unpaid, shall be added to and become part of the indebtedness secured hereby. Loan.
(b) All such Occupancy Leases hereafter made shall be subject to the approval of Lender and and: (ai) shall be at competitive market rental rates then prevailing in the geographic area for apartment complexes projects used for the Existing Use comparable to the Property Property; (ii) shall have lease terms of not less than three years; and (biii) at Lender's option option, shall be superior or subordinate in all respects to the lien of this Security DeedMortgage. Provided, however, that the Lender shall not require approval in advance of any Occupancy Leases which conform to the Borrower's Form Lease (as hereinafter defined) as previously approved by Lender, except as set forth below. Neither the right nor the exercise of the right herein granted unto Lender to keep or perform any such covenants, agreements, agreements or conditions as aforesaid shall preclude Lender from exercising its option to cause the whole indebtedness secured hereby Loan to become immediately, but subject to the notice and cure period in Paragraph 23, immediately due and payable by reason of Borrower's default in keeping or performing any such covenants, agreements or conditions as hereinabove required. conditions.
(c) Lender has heretofore approved a form of Occupancy Lease to be used by Borrower in connection with the Property (hereinafter referred to as the "Form LeaseFORM LEASE"). Borrower shall not, without the prior written consent of the Lender, modify or alter the Form Lease in any material respect. In addition addition, Borrower shall not, without the prior written consent of Lender, surrender surrender, terminate, modify or terminate (except in the ordinary course of business)alter, either orally or in writing, any Occupancy Lease now existing or hereafter made with any Major Tenant (as hereinafter defined) for all or part of the Property, permit an assignment or sublease of any such Occupancy Lease, or request or consent to the subordination of any Occupancy Lease to any lien subordinate to this Security DeedMortgage. Upon request, the Borrower shall furnish the Lender with copies of all executed Occupancy Leases of all or any part of the Property now existing or hereafter made, and Borrower shall assign to the Lender (which assignment shall be in form and content acceptable to Lender), as additional security for the NoteNote and the Loan, all Occupancy Leases now existing or hereafter made of for all or any part of the Property.
(d) Notwithstanding the foregoing approval by Lender of Borrower's Form Lease, Lender hereby specifically reserves the right to approve all prospective tenants under all Occupancy Leases hereafter proposed to be made if either: (i) the term thereof, excluding options to renew the same, exceeds five years; or (ii) the net rentable area to be occupied thereunder, including expansion options, exceeds ten percent (10%) of the net leasable area of each of the buildings comprising the Improvements (the tenants under such leases being hereinafter referred to as "MAJOR TENANTS"). Borrower shall notify Lender in writing of all Omaha, Nebraska prospective Major Tenants, and shall deliver to Lender, at Borrower's sole cost and expense, a copy of the prospective Major Tenant's current financial statement and the most recent Dun & Bradstreet credit report on said prospective Major Tenant. The financial statement delivered to Lender hereunder shall be certified as true and correct by the Major Tenant, or, if available, by a certified public accountant.
(e) In no event shall Borrower exercise any right to relocate any tenant outside the Property pursuant to any right set forth in an Occupancy Lease without the prior written consent of Lender.
Appears in 1 contract
Samples: Deed of Trust and Security Agreement (Agree Realty Corp)
OBLIGATIONS OF BORROWER AS LESSOR. To perform every obligation of the Borrower (as the lessor) and enforce every obligation of the lessee in any and every lease or other occupancy agreement of or affecting the Property or any part thereof (hereinafter referred to as the "Occupancy Leases"), and not to modify, alter, waive waive, or cancel any such Occupancy Leases or any part thereof, nor collect for more than thirty (30) days in advance any rents that may be collectible under any such Occupancy Leases and, except as provided for in this Security DeedMortgage, not to assign any such lease or Occupancy Lease or any such rents to any party other than Lender, without the prior written consent of Lender; provided, however, that the Lenderconsent of Lender shall not be required for any such actions undertaken by Borrower in the ordinary course of its business with respect to tenants occupying less than three thousand (3,000) square feet in the Improvements. In the event of default under any such Occupancy Lease by reason of failure of the Borrower to keep or perform one or more of the covenants, agreements or conditions thereof, the Lender is hereby authorized and empowered, and may, at its sole option, but without obligation to do so, remedy, remove or cure any such default, and further, Lender may, at its sole option and in its sole discretion, but without obligation to do so, pay any sum of money deemed necessary by it for the performance of said covenants, agreements and conditions, or for the curing or removal of any such default, and incur all expenses and obligations which it may consider necessary or reasonable in connection therewith, and Borrower shall repay on demand all such sums so paid or advanced by Lender together with interest thereon until paid at the lesser of either (i) the highest rate then allowed by the laws of the State of GeorgiaFlorida, or, if controlling, the laws of the United States, or (ii) the then-then applicable interest rate of on the Note plus five hundred percent (5005%) basis pointsper annum; all of such sums, if unpaid, shall be added to and become part of the indebtedness secured hereby. All such Occupancy Leases hereafter made shall be subject to the approval of Lender and (a) shall be at competitive market rental rates then prevailing in the geographic area for apartment complexes retail projects comparable to the Property Property, (b) shall have lease terms of not less than three (3) years, and (bc) at Lender's option option, shall be superior or subordinate in all respects to the lien of this Security DeedMortgage. ProvidedPro vided, however, that the Lender shall not require approval in advance of any Occupancy Leases which conform to the Borrower's Form Lease (as hereinafter defined) as previously approved by Lender, Xxxxxx except as set forth below. Neither the right nor the exercise of the right herein granted unto Lender to keep or perform any such covenants, agreements, agreements or conditions as aforesaid shall preclude Lender from exercising its option to cause the whole indebtedness secured hereby to become immediately, but subject to the notice and cure period in Paragraph 23, immediately due and payable by reason of BorrowerXxxxxxxx's default in keeping or performing any such covenants, agreements or conditions as hereinabove required. Lender has heretofore approved a form of Occupancy Lease to be used by Borrower in connection with the Property (hereinafter referred to as the "Form Lease"). Borrower shall not, without with out the prior written consent of the LenderXxxxxx, modify or alter the Form Lease in any material respect. In addition addition, Borrower shall not, without the prior written consent of Lender, surrender or terminate (except in the ordinary course of business)terminate, either orally or in writing, any Occupancy Lease now existing or hereafter made with any Major Tenant (as hereinafter defined) for all or part of the Property, permit an assignment or sublease of any such Occupancy Lease, or request or consent to the subordination of any Occupancy Lease to any lien subordinate to this Security DeedMortgage. Upon request, the Borrower shall furnish the Lender with copies of all executed Occupancy Leases of all or any part of the Property now existing or hereafter made, and Borrower shall assign to the Lender (which assignment shall be in form and content acceptable to Lender), as additional security for the Note, all Occupancy Leases now existing or hereafter made of for all or any part of the Property. Notwithstanding the foregoing approval by Lender of Borrower's Form Lease, Lender hereby specifically reserves the right to approve all prospective tenants under all Occupancy Leases hereafter proposed to be made if: (i) the term thereof, excluding options to renew the same, exceeds five (5) years, or (ii) the net rentable area to be occupied thereunder, including expansion options, exceeds ten percent (10%) of the net leasable area of the Improvements (the tenants under such leases being hereinafter referred to as "Major Tenants"). Borrower shall notify Lender in writing of all prospective Major Tenants and shall deliver to Lender, at Xxxxxxxx's sole cost and expense, a copy of the prospective Major Xxxxxx's current financial statement and the most recent Dun & Xxxxxxxxxx credit report on said prospective Major Tenant. Said financial statement shall be certified as true and correct by the Major Tenant, or, if available, by a certified public accountant.
Appears in 1 contract
Samples: Mortgage Modification and Security Agreement (Agree Realty Corp)
OBLIGATIONS OF BORROWER AS LESSOR. To (a) Borrower shall use commercially reasonable efforts to timely fulfill and perform every obligation obligation, condition and covenant of the Borrower (as the lessorlandlord) and enforce every obligation of the lessee contained in any and every lease lease, license or other occupancy agreement of or affecting the Property or any part thereof (hereinafter referred to as the "Occupancy Leases")) and shall use commercially reasonable efforts to timely enforce every obligation, condition and covenant of each tenant in any and every Occupancy Lease, and shall not to amend, modify, alter, waive waive, cancel, surrender or cancel terminate any such Occupancy Leases or any part thereofthereof or rights thereunder, without the prior written consent of Lender which consent shall not be unreasonably withheld, conditioned or delayed (but such consent shall not be required for such action as to any Occupancy Lease that is not with a Major Tenant (as hereafter defined)) provided such action is in the ordinary course of business of owning and operating the Property in a prudent and business-like manner and at market rents and on market terms for similar property the ("Prudent Market Standard") or is expressly permitted under the terms of any Occupancy Lease, nor collect for more than thirty (30) days in advance of the date due any rents Rents that may be collectible under any such Occupancy Leases and, except as provided for in this Security DeedMortgage, shall not to assign any such Occupancy Lease Lease(s) or any such rents Rents relating thereto, to any party other than Lender, without the prior written consent of the Lender. Borrower will notify Lender in writing of any default notice provided by Borrower under any Occupancy Lease with a Major Tenant. In the event of default (beyond any applicable notice and cure periods) under any such Occupancy Lease by reason of failure of the Borrower to keep or perform one or more of the covenants, agreements or conditions thereof, the Lender is hereby authorized and empowered, and may, at its sole option, remedy, remove or cure any such default, and further, Lender may, at its sole option and in its sole discretion, discretion but without obligation to do so, pay any sum of money deemed necessary by it Lender for the performance of said covenants, agreements and conditions, or for the curing or removal of any such default, and incur all expenses and obligations which it Lender may consider necessary or reasonable in connection therewith, and Borrower shall repay on within ten (10) business days following demand all such sums so paid or advanced by Lender together with interest thereon from the due date until paid at the lesser of either either: (i) the highest rate of interest then allowed by the laws Laws of the State of GeorgiaState, or, if controlling, the laws Laws of the United States, or (ii) the then-then applicable interest rate of the Note plus five hundred (500) basis pointspoints per annum; all of such sums, if unpaid, shall be added to and become part of the indebtedness secured hereby. Loan.
(b) All such Occupancy Leases hereafter made shall be subject to the review, comment and approval of Lender and and, unless otherwise approved by Lender, which approval shall not be unreasonably withheld, conditioned or delayed: (ai) shall be at competitive market rental rates then prevailing in the geographic area for apartment complexes projects used for the Existing Use comparable to the Property Property; (ii) shall have lease terms of not less than three (3) years; and (biii) at Lender's option option, shall be superior or subordinate in all respects to the lien of this Security DeedMortgage. ProvidedNotwithstanding the foregoing, however, that the Lender shall not require approval in advance of any Occupancy Leases not with a Major Tenant which conform either substantially conforms to the Borrower's Form Lease (as hereinafter defined) as previously approved by Lender and in accordance with the Prudent Market Standard, subject to commercially reasonable changes made during the course of negotiation of such Occupancy Lease, or is with a national tenant and is on the lease form of such national tenant. Provided that no Event of Default is continuing, if (i) Borrower provides Lender with a written request for approval of a proposed Occupancy Lease or a proposed renewal, extension or modification of an existing Occupancy Lease, and (ii) Lender fails to approve or disapprove the request in writing delivered to Borrower within ten (10) business days after receipt by Lender, provided that such request is sent certified mail or other overnight carrier labeled with the following statement: “TIME SENSITIVE RESPONSE REQUIRED WITHIN TEN (10) BUSINESS DAYS OF ACTUAL RECEIPT”, then the proposed Occupancy Lease or proposed renewal, extension or modification of an existing Occupancy Lease shall be deemed approved by Lender, except as set forth belowand Borrower shall be entitled to enter into such proposed Occupancy Lease or proposed renewal, extension or modification of an existing Occupancy Lease. Neither If requested by Borrower, Lender will grant conditional approvals of proposed Occupancy Leases or proposed renewals, extensions or modifications of existing Occupancy Leases, at any stage of the leasing process, from initial “term sheet” through negotiated lease drafts, provided that Lender shall retain the right nor the exercise to disapprove any modifications or changes to any proposed Occupancy Lease or proposed renewals, extensions or modifications of the right herein granted unto Lender existing Occupancy Leases made subsequent to keep or perform any such covenants, agreements, or conditions as aforesaid shall preclude Lender from exercising its option to cause the whole indebtedness secured hereby to become immediately, but subject to the notice and cure period in Paragraph 23, due and payable by reason of Borrower's default in keeping or performing any such covenants, agreements or conditions as hereinabove required. Lender’s approval.
(c) Lender has heretofore approved a form of Occupancy Lease to be used by Borrower in connection with the Property (hereinafter referred to as the "Form Lease"). Borrower shall not, without the prior written consent of the Lender, which approval shall not be unreasonably withheld, conditioned or delayed, amend, modify or alter the Form Lease in and Borrower shall reimburse Lender any material respectof its actual and reasonable out-of-pocket costs and expenses, including Reasonable Attorneys' Fees, for the review of any proposed revisions to the Form Lease, or for the review of proposed Occupancy Leases, any extensions, modifications and amendments to Occupancy Leases and any subordination, non-disturbance and attornment agreements, and estoppels not on Lender's form. In addition To the extent Borrower’s approval is required under any Occupancy Lease with a Major Tenant, Borrower shall not, without the prior written consent of Lender, surrender or terminate (except in the ordinary course of business), either orally or in writing, any Occupancy Lease now existing or hereafter made for all or part of the Property, permit an assignment or sublease of any such Occupancy Lease. Borrower shall not, or without the prior written consent of Lender, request or consent to the subordination of any Occupancy Lease to any lien subordinate to this Security DeedMortgage. Upon request, the Borrower shall furnish the Lender with copies of all executed Occupancy Leases of all or any part of the Property now existing or hereafter made, and Borrower shall assign to the Lender (which assignment shall be in form and content acceptable to Lender), as additional security for the NoteNote and the Loan, all Occupancy Leases now existing or hereafter made of for all or any part of the Property. Additionally, if any Occupancy Lease contains a provision allowing the tenant to terminate its lease upon payment of a lease termination fee, Borrower agrees that all such sums shall constitute Rent, and shall be paid to Lender in accordance with the terms of the Assignment.
(d) Notwithstanding the foregoing approval by Lender of Borrower's Form Lease, Lender hereby specifically reserves the right to approve, which approval shall not be unreasonably withheld, conditioned or delayed, all prospective tenants under all Occupancy Leases hereafter proposed to be made if: (i) the net rentable area to be occupied thereunder, including expansion options which have been exercised, exceeds 10,000 square feet of the net leasable area of each of the buildings comprising the Improvements; (ii) the primary lease term, excluding renewal options, exceeds ten (10) years; (iii) the tenant is a related entity or affiliate of Borrower; or (iv) it is an Occupancy Lease that is to be used to satisfy the release of escrow funds or for other rental achievement purposes (the tenants under such leases being herein referred to as "Major Tenants"). As of the date hereof, the following entities are deemed to be Major Tenants: Bed Bath & Beyond Inc., a New York corporation, WFM-WO, INC., a Delaware corporation (f/k/a Wild Oats Markets, Inc.), Recreational Equipment, Inc., a Washington corporation, Old Navy, LLC, a Delaware limited liability company, The Gap, Inc., a Delaware corporation, Love Culture, LLC, a Delaware limited liability company, DSW Shoe Warehouse, Inc., a Missouri corporation, and Ulta Salon, Cosmetics and Fragrance, Inc., a Delaware corporation. Borrower shall notify Lender in writing of all prospective Major Tenants, and, to the extent in Borrower’s possession, shall deliver to Lender a copy of any prospective Major Tenant's current financial statement. The financial statement delivered to Lender hereunder shall be certified by Borrower as a true and correct copy of the financial statement received by Borrower from such tenant.
(e) In no event shall Borrower exercise any right to relocate any lessee outside the Property pursuant to any right set forth in an Occupancy Lease without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Samples: Open End Mortgage and Security Agreement (Hines Global Reit Ii, Inc.)
OBLIGATIONS OF BORROWER AS LESSOR. To (a) Borrower shall use commercially reasonable efforts to timely fulfill and perform every obligation obligation, condition and covenant of the Borrower (as the lessorlandlord) and enforce every obligation of the lessee contained in any and every lease lease, license or other occupancy agreement of or affecting the Property or any part thereof (hereinafter referred to as the "Occupancy Leases")) and shall use commercially reasonable efforts to timely enforce every obligation, condition and covenant of each tenant in any and every Occupancy Lease, and shall not to amend, modify, alter, waive waive, cancel, surrender or cancel terminate any such Occupancy Leases or any part thereofthereof or rights thereunder, without the prior written consent of Lender which consent shall not be unreasonably withheld, conditioned or delayed (but such consent shall not be required for such action as to any Occupancy Lease that is not with a Major Tenant (as hereafter defined)) provided such action is in the ordinary course of business of owning and operating the Property in a prudent and business-like manner and at market rents and on market terms for similar property the ("Prudent Market Standard") or is expressly permitted under the terms of any Occupancy Lease, nor collect for more than thirty (30) days in advance of the date due any rents Rents that may be collectible under any such Occupancy Leases and, except as provided for in this Security DeedMortgage, shall not to assign any such Occupancy Lease Lease(s) or any such rents Rents relating thereto, to any party other than Lender, without the prior written consent of the Lender. Borrower will notify Lender in writing of any default notice provided by Borrower under any Occupancy Lease with a Major Tenant. In the event of default (beyond any applicable notice and cure periods) under any such Occupancy Lease by reason of failure of the Borrower to keep or perform one or more of the covenants, agreements or conditions thereof, the Lender is hereby authorized and empowered, and may, at its sole option, remedy, remove or cure any such default, and further, Lender may, at its sole option and in its sole discretion, discretion but without obligation to do so, pay any sum of money deemed necessary by it Lender for the performance of said covenants, agreements and conditions, or for the curing or removal of any such default, and incur all expenses and obligations which it Lender may consider necessary or reasonable in connection therewith, and Borrower shall repay on within ten (10) business days following demand all such sums so paid or advanced by Lender together with interest thereon from the due date until paid at the lesser of either either: (i) the highest rate of interest then allowed by the laws Laws of the State of GeorgiaState, or, if controlling, the laws Laws of the United States, or (ii) the then-then applicable interest rate of the Note plus five hundred (500) basis pointspoints per annum; all of such sums, if unpaid, shall be added to and become part of the indebtedness secured hereby. Loan.
(b) All such Occupancy Leases hereafter made shall be subject to the review, comment and approval of Lender and and, unless otherwise approved by Lender, which approval shall not be unreasonably withheld, conditioned or delayed: (ai) shall be at competitive market rental rates then prevailing in the geographic area for apartment complexes projects used for the Existing Use comparable to the Property Property; (ii) shall have lease terms of not less than three (3) years; and (biii) at Lender's option option, shall be superior or subordinate in all respects to the lien of this Security DeedMortgage. ProvidedNotwithstanding the foregoing, however, that the Lender shall not require approval in advance of any Occupancy Leases not with a Major Tenant which conform either substantially conforms to the Borrower's Form Lease (as hereinafter defined) as previously approved by Lender and in accordance with the Prudent Market Standard, subject to commercially reasonable changes made during the course of negotiation of such Occupancy Lease, or is with a national tenant and is on the lease form of such national tenant. Provided that no Event of Default is continuing, if (i) Borrower provides Lender with a written request for approval of a proposed Occupancy Lease or a proposed renewal, extension or modification of an existing Occupancy Lease, and (ii) Lender fails to approve or disapprove the request in writing delivered to Borrower within ten (10) business days after receipt by Lender, provided that such request is sent certified mail or other overnight carrier labeled with the following statement: “TIME SENSITIVE RESPONSE REQUIRED WITHIN TEN (10) BUSINESS DAYS OF ACTUAL RECEIPT”, then the proposed Occupancy Lease or proposed renewal, extension or modification of an existing Occupancy Lease shall be deemed approved by Lender, except as set forth belowand Borrower shall be entitled to enter into such proposed Occupancy Lease or proposed renewal, extension or modification of an existing Occupancy Lease. Neither If requested by Borrower, Lender will grant conditional approvals of proposed Occupancy Leases or proposed renewals, extensions or modifications of existing Occupancy Leases, at any stage of the leasing process, from initial “term sheet” through negotiated lease drafts, provided that Lender shall retain the right nor the exercise to disapprove any modifications or changes to any proposed Occupancy Lease or proposed renewals, extensions or modifications of the right herein granted unto Lender existing Occupancy Leases made subsequent to keep or perform any such covenants, agreements, or conditions as aforesaid shall preclude Lender from exercising its option to cause the whole indebtedness secured hereby to become immediately, but subject to the notice and cure period in Paragraph 23, due and payable by reason of Borrower's default in keeping or performing any such covenants, agreements or conditions as hereinabove required. Lender’s approval.
(c) Lender has heretofore approved a form of Occupancy Lease to be used by Borrower in connection with the Property (hereinafter referred to as the "Form Lease"). Borrower shall not, without the prior written consent of the Lender, which approval shall not be unreasonably withheld, conditioned or delayed, amend, modify or alter the Form Lease in and Borrower shall reimburse Lender any material respectof its actual and reasonable out-of-pocket costs and expenses, including Reasonable Attorneys' Fees, for the review of any proposed revisions to the Form Lease, or for the review of proposed Occupancy Leases, any extensions, modifications and amendments to Occupancy Leases and any subordination, non-disturbance and attornment agreements, and estoppels not on Lender's form. In addition To the extent Borrower’s approval is required under any Occupancy Lease with a Major Tenant, Borrower shall not, without the prior written consent of Lender, surrender or terminate (except in the ordinary course of business), either orally or in writing, any Occupancy Lease now existing or hereafter made for all or part of the Property, permit an assignment or sublease of any such Occupancy Lease. Borrower shall not, or without the prior written consent of Lender, request or consent to the subordination of any Occupancy Lease to any lien subordinate to this Security DeedMortgage. Upon request, the Borrower shall furnish the Lender with copies of all executed Occupancy Leases of all or any part of the Property now existing or hereafter made, and Borrower shall assign to the Lender (which assignment shall be in form and content acceptable to Lender), as additional security for the NoteNote and the Loan, all Occupancy Leases now existing or hereafter made of for all or any part of the Property. Additionally, if any Occupancy Lease contains a provision allowing the tenant to terminate its lease upon payment of a lease termination fee, Borrower agrees that all such sums shall constitute Rent, and shall be paid to Lender in accordance with the terms of the Assignment.
(d) Notwithstanding the foregoing approval by Lender of Borrower's Form Lease, Lender hereby specifically reserves the right to approve, which approval shall not be unreasonably withheld, conditioned or delayed, all prospective tenants under all Occupancy Leases hereafter proposed to be made if: (i) the net rentable area to be occupied thereunder, including expansion options which have been exercised, exceeds 20,000 square feet of the net leasable area of each of the buildings comprising the Improvements; (ii) the primary lease term, excluding renewal options, exceeds ten (10) years; (iii) the tenant is a related entity or affiliate of Borrower; or (iv) it is an Occupancy Lease that is to be used to satisfy the release of escrow funds or for other rental achievement purposes (the tenants under such leases being herein referred to as "Major Tenants"). As of the date hereof, the following entities are deemed to be Major Tenants: Xxxxx Mart, Inc., a Florida corporation, Nordstrom, Inc., a Washington corporation, HomeGoods, Inc., a Delaware corporation, The TJX Companies, Inc., a Delaware corporation, and Booksellers Enterprises, LLC, a Kentucky limited liability company. Borrower shall notify Lender in writing of all prospective Major Tenants, and, to the extent in Borrower’s possession, shall deliver to Lender a copy of any prospective Major Tenant's current financial statement. The financial statement delivered to Lender hereunder shall be certified by Borrower as a true and correct copy of the financial statement received by Borrower from such tenant.
(e) In no event shall Borrower exercise any right to relocate any lessee outside the Property pursuant to any right set forth in an Occupancy Lease without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Samples: Open End Mortgage and Security Agreement (Hines Global Reit Ii, Inc.)
OBLIGATIONS OF BORROWER AS LESSOR. To perform every obligation of the Borrower (as the lessor) and to enforce every obligation of the lessee in any and every lease lease, license or other occupancy agreement of or affecting the Property or any part thereof (hereinafter referred to as the "Occupancy Leases"), and not to modify, alter, waive or cancel any such Occupancy Leases or any part thereofthereof or rights thereunder, without the prior written consent of Lender (but such consent shall not be required for such action as to Occupancy Leases of 3,000 square feet or less if such action is in the ordinary course of business of owning and operating the Property in a prudent and business-like manner), nor collect for more than thirty (30) days in advance of the date due any rents that may be collectible under any such Occupancy Leases and, except as provided for in this Security DeedMortgage, not to assign any such Occupancy Lease Lease(s) or any such rents relating thereto, to any party other than Lender, without the prior written consent of the Lender. In the event of default under any such Occupancy Lease by reason of failure of the Borrower to keep or perform one or more of the covenants, agreements or conditions thereof, the Lender is hereby authorized and empowered, and may, at its sole option, remedy, remove or cure any such default, and further, Lender may, at its sole option and in its sole discretion, discretion but without obligation to do so, pay any sum of money deemed necessary by it Lender for the performance of said covenants, agreements and conditions, or for the curing or removal of any such default, and incur all expenses and obligations which it Lender may consider necessary or reasonable in connection therewith, and Borrower shall repay on demand all such sums so paid or advanced by Lender together with interest thereon until paid at the lesser of either either: (i) the highest rate of interest then allowed by the laws of the State of GeorgiaMichigan, or, if controlling, the laws of the United States, or (ii) the then-then applicable interest rate of the Note plus five hundred (500) basis points; all of such sums, if unpaid, shall be added to and become part of the indebtedness Loan secured hereby. All such Occupancy Leases hereafter made shall be subject to the approval of Lender and and: (ai) shall be at competitive market rental rates then prevailing in the geographic area for apartment complexes retail property comparable to the Property Property; (ii) shall have lease terms of not less than three (3) years; and (biii) at Lender's option option, shall be superior or subordinate in all respects to the lien of this Security DeedMortgage. Provided, however, that the Lender shall not require approval in advance of any Occupancy Leases which conform to the Borrower's Form Lease (as hereinafter defined) as previously approved by Lender, except as set forth below. Neither the right nor the exercise of the right herein granted unto Lender to keep or perform any such covenants, agreements, agreements or conditions as aforesaid shall preclude Lender from exercising its option to cause the whole indebtedness Loan secured hereby to become immediately, but subject to the notice and cure period in Paragraph 23, immediately due and payable by reason of Borrower's default in keeping or performing any such covenants, agreements or conditions as hereinabove required. Lender has heretofore approved a form of Occupancy Lease to be used by Borrower in connection with the Property (hereinafter referred to as the "Form Lease"). Borrower shall not, without the prior written consent of the Lender, modify or alter the Form Lease in any material respect. In addition addition, Borrower shall not, without the prior written consent of Lender, surrender or terminate (except in the ordinary course of business)terminate, either orally or in writing, any Occupancy Lease now existing or hereafter made with any Major Tenant (as hereinafter defined) for all or part of the Property, permit an assignment or sublease of any such Occupancy Lease, or request or consent to the subordination of any Occupancy Lease to any lien subordinate to this Security DeedMortgage. Upon request, the Borrower shall furnish the Lender with copies of all executed Occupancy Leases of all or any part of the Property now existing or hereafter made, and Borrower shall assign to the Lender (which assignment shall be in form and content acceptable to Lender), as additional security for the NoteNote and the Loan, all Occupancy Leases now existing or hereafter made of for all or any part of the Property. Additionally, if any Occupancy Lease contains a provision allowing the tenant to terminate their lease upon payment of a lease termination fee, Borrower agrees that all such sums shall constitute rent, and shall be paid to Lender so long as this Mortgage is in effect. Notwithstanding the foregoing approval by Lender of Borrower's Form Lease, Lender hereby specifically reserves the right to approve all prospective tenants under all Occupancy Leases hereafter proposed to be made if either: (i) the term thereof, excluding options to renew the same, exceeds five (5) years; or (ii) the net rentable area to be occupied thereunder, including expansion options, exceeds ten percent (10%) of the net leasable area of each of the buildings comprising the Improvements (the tenants under such leases being hereinafter referred to as "Major Tenants"). Borrower shall notify Lender in writing of all prospective Major Tenants, and shall deliver to Lender, at Borrower's sole cost and expense, a copy of the prospective Major Tenant's current financial statement and the most recent Dun & Bradstreet credit report on said prospective Major Tenant. The financial statement delivered to Lender hereunder shall be certified as true and correct by the Major Tenant, or, if available, by a certified public accountant. As of the date of this Mortgage, as security in addition to the Property, the Borrower hereby assigns to the Lender all its right, title and interest in and to all Occupancy Leases, whether now in existence or which may hereafter come into existence during the term of this Mortgage, or any extension hereof, (but without an assumption by the Lender of liabilities of the Borrower under any such Occupancy Leases by virtue of this assignment), and the Borrower hereby assigns to the Lender the rents, issues and profits of the Property. In the event of a default (or defaults) in the terms, conditions, covenants or promises contained in this Mortgage or in the Note which is not cured within the time specified in the applicable instrument, the Lender may receive and collect said rents, issues and profits personally or through a receiver so long as any such default shall exist and during the pendency of any foreclosure proceedings and during any redemption period, and, to the extent permitted by law, Borrower specifically waives its right to object to the appointment of a receiver and hereby expressly agrees that such appointment shall be made as an admitted equity and as a matter of absolute right to Lender. The Lender shall be entitled to all of the rights and benefits conferred by Act No. 210 of the Michigan Public Acts of 1953 as amended by Act No. 151 of the Michigan Public Acts of 1966 (MCL 554.231 et seq.), and Act No. 228 of the Michigan Public Acts of 1925 as amended by Act No. 55 of the Michigan Public Acts of 1933 (MCL 554.211 et seq.). The collection of rents by the Lender shall in no way waive the right of the Lender to foreclose this Mortgage in the event of any said default beyond applicable cure periods. MAINTENANCE OF PARKING & ACCESS; PROHIBITION AGAINST
Appears in 1 contract
Samples: Mortgage (Agree Realty Corp)
OBLIGATIONS OF BORROWER AS LESSOR. To perform every obligation of the Borrower (as the lessor) and enforce every obligation of the lessee in any and every lease or other occupancy agreement affecting the Property or any part thereof (hereinafter referred to as the "Occupancy Leases"), and not to modify, alter, waive or cancel any such Occupancy Leases or any part thereof, nor collect for more than thirty (30) days in advance any rents that may be collectible under any such Occupancy Leases and, except as provided for in this Security Deed, not to assign any such Occupancy Lease or any such rents to any party other than Lender, without the prior written consent of the Lender. In the event of default under any such Occupancy Lease by reason of failure of the Borrower to keep or perform one or more of the covenants, agreements or conditions thereof, the Lender is hereby authorized and empowered, and may, at its sole option, remedy, remove or cure any such default, and further, Lender may, at its sole option and in its sole discretion, but without obligation to do so, pay any sum of money deemed necessary by it for the performance of said covenants, agreements and conditions, or for the curing or removal of any such default, and incur all expenses and obligations which it may consider necessary or reasonable in connection therewith, and Borrower shall repay on demand all such sums so paid or advanced by Lender together with interest thereon until paid at the lesser of either (i) the highest rate then allowed by the laws of the State of Georgia, or, if controlling, the laws of the United States, or (ii) the then-then- applicable interest rate of the Note plus five hundred (500) basis points; all of such sums, if unpaid, shall be added to and become part of the indebtedness secured hereby. All such Occupancy Leases hereafter made shall be subject to the approval of Lender and (a) shall be at competitive market rental rates then prevailing in the geographic area for apartment complexes comparable to the Property and (b) at Lender's option shall be superior or subordinate in all respects to the lien of this Security Deed. Provided, however, that the Lender shall not require approval in advance of any Occupancy Leases which conform to the Borrower's Form Lease (as hereinafter defined) as previously approved by Lender, except as set forth below. Neither the right nor the exercise of the right herein granted unto Lender to keep or perform any such covenants, agreements, or conditions as aforesaid shall preclude Lender from exercising its option to cause the whole indebtedness secured hereby to become immediately, but subject to the notice and cure period in Paragraph 23, due and payable by reason of Borrower's default in keeping or performing any such covenants, agreements or conditions as hereinabove required. Lender has heretofore approved a form of Occupancy Lease to be used by Borrower in connection with the Property (hereinafter referred to as the "Form Lease"). Borrower shall not, without the prior written consent of the Lender, modify or alter the Form Lease in any material respect. In addition Borrower shall not, without the prior written consent of Lender, surrender or terminate (except in the ordinary course of business), either orally or in writing, any Occupancy Lease now existing or hereafter made for all or part of the Property, permit an assignment or sublease of any such Occupancy Lease, or request or consent to the subordination of any Occupancy Lease to any lien subordinate to this Security Deed. Upon request, the Borrower shall furnish the Lender with copies of all executed Occupancy Leases of all or any part of the Property now existing or hereafter made, and Borrower shall assign to the Lender (which assignment shall be in form and content acceptable to Lender), as additional security for the Note, all Occupancy Leases now existing or hereafter made of all or any part of the Property.
Appears in 1 contract
Samples: Deed to Secure Debt and Security Agreement (Roberts Realty Investors Inc)
OBLIGATIONS OF BORROWER AS LESSOR. To (a) Borrower shall perform every obligation of the Borrower (as the lessorlandlord) and enforce every obligation of the lessee tenant in any and every lease lease, license or other occupancy agreement of or affecting the Property or any part thereof (hereinafter referred to as the "“Occupancy Leases"”), and not to modify, alter, waive or cancel any such Occupancy Leases or any part thereofthereof or rights thereunder, without the prior written consent of Lender (but such consent shall not be required for such action as to Occupancy Leases of three thousand (3,000) square feet or less if such action is in the ordinary course of business of owning and operating the Property in a prudent and business-like manner, on then current market terms), nor collect for more than thirty (30) days in advance of the date due any rents Rents that may be collectible under any such Occupancy Leases and, except as provided for in this Security DeedMortgage, not to assign any such Occupancy Lease Lease(s) or any such rents Rents relating thereto, to any party other than Lender, without the prior written consent of the Lender. Borrower will notify Lender in writing of any default under any Occupancy Lease, In the event of default under any such Occupancy Lease by reason of failure of the Borrower to keep or perform one or more of the covenants, agreements or conditions thereof, the Lender is hereby authorized and empowered, and may, at its sole option, remedy, remove or cure any such default, and further, Lender may, at its sole option and in its sole discretion, discretion but without obligation to do so, pay any sum of money deemed necessary by it Lender for the performance of said covenants, agreements and conditions, or for the curing or removal of any such default, and incur all expenses and obligations which it Lender may consider necessary or reasonable in connection therewith, and Borrower shall repay on demand all such sums so paid or advanced by Lender together with interest thereon until paid at the lesser of either either; (i) the highest rate of interest then allowed by the laws Laws of the State of GeorgiaFlorida, or, if controlling, the laws Laws of the United States, or (ii) the then-then applicable interest rate of the Note plus five hundred (500) basis pointspoints per annum; all of such sums, if unpaid, shall be added to and become part of the indebtedness secured hereby. Loan.
(b) All such Occupancy Leases hereafter made shall be subject to the approval of Lender and and: (ai) shall be at competitive market rental rates then prevailing in the geographic area for apartment complexes projects used for the Existing Use comparable to the Property Property, (ii) shall have lease terms of not less than three (3) years; and (biii) at Lender's option ’s option, shall be superior or subordinate in all respects to the lien of this Security DeedMortgage. Provided, however, that the Lender shall not require approval in advance of any Occupancy Leases which conform to the Borrower's ’s Form Lease (as hereinafter defined) as previously approved by Lender, except as set forth below. Neither the right nor the exercise of the right herein granted unto Lender to keep or perform any such covenants, agreements, agreements or conditions as aforesaid shall preclude Lender from exercising its option to cause the whole indebtedness Loan secured hereby to become immediately, but subject to the notice and cure period in Paragraph 23, immediately due and payable by reason of Borrower's ’s default in keeping or performing any such covenants, agreements or conditions as hereinabove required. conditions.
(c) Lender has heretofore approved a form of Occupancy Lease to be used by Borrower in connection with the Property (hereinafter referred to as the "“Form Lease"”). Borrower shall not, without the prior written consent of the Lender, modify or alter the Form Lease in any material respect. In addition addition, Borrower shall not, without the prior written consent of Lender, surrender surrender, terminate, modify or terminate (except in the ordinary course of business)alter, either orally or in writing, any Occupancy Lease now existing or hereafter made with any Major Tenant (as hereinafter defined) for all or part of the Property, permit an assignment or sublease of any such Occupancy Lease, or request or consent to the subordination of any Occupancy Lease to any lien subordinate to this Security DeedMortgage. Upon request, the Borrower shall furnish the Lender with copies of all executed Occupancy Leases of all or any part of the Property now existing or hereafter made, and Borrower shall assign to the Lender (which assignment shall be in form and content acceptable to Lender), as additional security for the NoteNote and the Loan, all Occupancy Leases now existing or hereafter made of for all or any part of the Property. Additionally, if any Occupancy Lease contains a provision allowing the tenant to terminate their lease upon payment of a lease termination fee, Borrower agrees that all such sums shall constitute rent, and shall be paid to Lender so long as this Mortgage is in effect. Notwithstanding the foregoing approval by Lender of Borrower’s Form Lease, Lender hereby specifically reserves the right to approve all prospective tenants under all Occupancy Leases hereafter proposed to be made if either: (i) the term thereof, excluding options to renew the same, exceeds five (5) years; or (ii) the net rentable area to be occupied thereunder, including expansion options, exceeds ten percent (10%) of the net leasable area of each of the buildings comprising the Improvements (the tenants under such leases being hereinafter referred to as “Major Tenants”). Borrower shall notify Lender in writing of all prospective Major Tenants, and shall deliver to Lender, at Borrower’s sole cost and expense, a copy of the prospective Major Tenant’s current financial statement and the most recent Dun & Bradstreet credit report on said prospective Major Tenant. The financial statement delivered to Lender hereunder shall be certified as true and correct by the Major Tenant, or, if available, by a certified public accountant. If Lender fails to respond within ten (10) business days after receipt from Borrower of an Occupancy Lease, together with tenant credit information, Lender shall be deemed to have approved such Occupancy Lease; provided that all items so submitted shall be sent certified mail, labeled with the following statement: “TIME SENSITIVE RESPONSE REQUIRED WITHIN TEN (10) BUSINESS DAYS OF ACTUAL RECEIPT.
(d) In no event shall Borrower exercise any right to relocate any lessee outside the Property pursuant to any right set forth in an Occupancy Lease without the prior written consent of Lender.
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OBLIGATIONS OF BORROWER AS LESSOR. To perform every material obligation of the Borrower (as the lessor) and to enforce every material obligation of the lessee in any and every lease lease, license or other occupancy agreement of or affecting the Property or any part thereof (hereinafter referred to as the "Occupancy Leases"), and not to enter into, modify, alter, waive or cancel any such Occupancy Leases or any part thereofthereof or rights thereunder, without the prior written consent of Lender (but such consent shall not be required for such action as to Occupancy Leases of: (a) ten thousand (10,000) square feet or less and the lease term is at least five (5) years; or (b) three thousand (3,000) square feet or less and the lease term is at least three (3) years, and in either case (a) or (b) if such action is in the ordinary course of business of owning and operating the Property in a prudent and business-like manner and provided that with respect to future tenants the rental rate is greater than or equal to the market rate and the lease term is at least five (5) years (or three (3) years if three thousand (3,000) square feet or less), nor collect for more than thirty (30) days in advance of the date due any rents that may be collectible under any such Occupancy Leases and, except as provided for in this Security DeedMortgage, not to assign any such Occupancy Lease Lease(s) or any such rents relating thereto, to any party other than Lender, without the prior written consent of the Lender. In the event of default under any such Occupancy Lease by reason of failure of the Borrower to keep or perform one or more of the material covenants, agreements or conditions thereof, the Lender is hereby authorized and empowered, and may, at its sole option, remedy, remove or cure any such default, and further, Lender may, at its sole option and in its sole discretion, discretion but without obligation to do so, pay any sum of money deemed necessary by it Lender for the performance of said material covenants, agreements and conditions, or for the curing or removal of any such default, and incur all expenses and obligations which it Lender may consider necessary or reasonable in connection therewith, and Borrower shall repay on demand all such sums so paid or advanced by Lender together with interest thereon until paid at the lesser of either either: (i) the highest rate of interest then allowed by the laws of the State of GeorgiaFlorida, or, if controlling, the laws of the United States, or (ii) the then-then applicable interest rate of the Note plus five hundred (500) basis points; all of such sums, if unpaid, shall be added to and become part of the indebtedness Loan secured hereby. Neither the right nor the exercise of the right herein granted unto Lender to keep or perform any such material covenants, agreements or conditions as aforesaid shall preclude Lender from exercising its option to cause the whole Loan secured hereby to become immediately due and payable by reason of Borrower's default in keeping or performing any such covenants, agreements or conditions as hereinabove required. All such Occupancy Leases hereafter made shall be subject to the approval of Lender and and: (ai) shall be at competitive market rental rates then prevailing in the geographic area for apartment complexes shopping center comparable to the Property Property; (ii) shall have lease terms of not less than three (3) years; and (biii) at Lender's option option, shall be superior or subordinate in all respects to the lien of this Security DeedMortgage. Provided, however, that the Lender shall not require approval in advance of any Occupancy Leases which conform to the Borrower's Form Lease (as hereinafter defined) as previously approved by Lender, except as set forth below. Neither the right nor the exercise of the right herein granted unto Lender to keep or perform any such covenants, agreements, or conditions as aforesaid shall preclude Lender from exercising its option to cause the whole indebtedness secured hereby to become immediately, but subject to the notice and cure period in Paragraph 23, due and payable by reason of Borrower's default in keeping or performing any such covenants, agreements or conditions as hereinabove required. Lender has heretofore approved a form of Occupancy Lease to be used by Borrower in connection with the Property (hereinafter referred to as the "Form Lease"). Borrower shall not, without the prior written consent of the Lender, modify or alter the Form Lease in any material respect. However, Borrower shall not be required to obtain the prior approval of Lender for any changes or modifications to the standard terms and conditions of Borrower's Form Lease which are customary industry changes. In addition addition, Borrower shall not, without the prior written consent of Lender, surrender or terminate (except in the ordinary course of business)terminate, either orally or in writing, any Occupancy Lease now existing or hereafter made with any Major Tenant (as hereinafter defined) for all or part of the Property, permit an assignment or sublease of any such Occupancy LeaseLease (to the extent Borrower has the right to prevent same), or request or consent to the subordination of any Occupancy Lease to any lien subordinate to this Security DeedMortgage. Upon request, the Borrower shall furnish the Lender with copies of all executed Occupancy Leases of all or any part of the Property now existing or hereafter made, and Borrower shall assign to the Lender (which assignment shall be in form and content acceptable to Lender), as additional security for the NoteNote and the Loan, all Occupancy Leases now existing or hereafter made of for all or any part of the Property. Additionally, if any Occupancy Lease contains a provision allowing the tenant to terminate their lease upon payment of a lease termination fee, Borrower agrees that except to the extent such fees are first used to satisfy operating costs, debt service and any costs associated with obtaining a new tenant in the space (including leasing commissions and tenant improvements) for which termination fee was paid, all such sums shall constitute rent, and shall be paid to Lender so long as this Mortgage is in effect. Notwithstanding the foregoing approval by Lender of Borrower's Form Lease, Lender hereby specifically reserves the right to approve all prospective tenants under all Occupancy Leases hereafter proposed to be made if either: (i) the term thereof, excluding options to renew the same, exceeds five (5) years; or (ii) the net rentable area to be occupied thereunder, including expansion options, exceeds ten percent (10%) of the net leasable area of each of the buildings and exceeds the ten thousand (10,000) square foot threshold described in this Section 12 hereinabove, comprising the Improvements (the tenants under such leases being hereinafter referred to as "Major Tenants"). Lender shall respond in writing with specific objections noted to Borrower's request for review and approval of any new lease within ten (10) business days of receipt by Lender or said lease will be deemed to be approved. Lender's approval shall not be unreasonably withheld. Borrower shall notify Lender in writing of all prospective Major Tenants, and shall deliver to Lender, at Borrower's sole cost and expense, a copy of the prospective Major Tenant's current financial statement and the most recent Dun & Bradstreet credit report on said prospective Major Tenant. The financial statement delivered to Lender hereunder shall be certified as true and correct by the Major Tenant, or, if available, by a certified public accountant.
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Samples: Mortgage and Security Agreement (Ramco Gershenson Properties Trust)
