Common use of Right to Encumber Clause in Contracts

Right to Encumber. Any provision herein contained to the contrary notwithstanding, Tenant shall have the right without the consent of Landlord to encumber by way of a deed of trust all or any portion of Tenant’s right, title and interest in, to and under this Lease. Any such deed of trust may contain, except where particular terms, conditions or maturity are required by this Lease, such terms, conditions and maturity as Tenant may determine. Provided that all requirements of this Lease are at all times complied with, Tenant may enter into any and all such extensions, modifications or amendments of any such deed of trust as it may desire. Tenant shall, upon execution of any such deed of trust, promptly deliver a true copy of the deed of trust to Landlord. The aggregate amount secured by all such deeds of trust shall not exceed eighty-five percent (85%) of the fair market value of Tenant’s leasehold interest under this Lease and all buildings and other improvements constructed on the Premises or to be constructed oh the Premises during the Term. The Beneficiary and its respective assigns may enforce such deed of trust and may acquire title to the leasehold estate of Tenant in any lawful way and, pending foreclosure of such deed of trust (or bona fide sale or assignment in lieu of foreclosure) may take possession of and sublease the Premises, or cause any person having the relationship of an independent contractor to the Beneficiary to take possession of and sublease the Premises. Upon foreclosure thereof (or any bona fide sale or assignment in lieu of foreclosure) the Beneficiary may without further consent of Landlord sell and assign this Lease, by assignment in which the assignee shall expressly assume and agree to observe and perform all the covenants of Tenant hereunder for so long as it shall retain title to Tenant’s interest hereunder. Any assignee who has acquired title to this Lease by way of foreclosure or deed in lieu thereof may only assign its rights under the Lease, other than by way of deed of trust, in compliance with Section XIII.F hereto.

Right to Encumber. Any provision herein contained to During the contrary notwithstandingTerm, Tenant Lessee shall have the right without the consent of Landlord to encumber by way of a deed of trust Lessee’s Estate with Leasehold Mortgages executed pursuant to the Approved Financing; provided, however, all or any portion of Tenant’s Leasehold Mortgages shall remain subordinate and inferior to Lessor's right, title title, and interest inin the Leased Premises and, except as otherwise provided in this Lease, upon acquisition of the Leased Premises, any foreclosing Leasehold Mortgagee's rights to the Leased Premises shall be subject to the terms and under provisions of this Lease. Any such deed Lessor and Lessee agree that, so long as any Leasehold Mortgage encumbers the Improvements or Lessee’s leasehold interest in the Land, the prior written consent of trust may contain, except where particular terms, conditions or maturity are the Leasehold Mortgagee(s) shall be required (to the extent required by such Leasehold Mortgagee's Leasehold Mortgage): (a) in connection with any agreement by Lessor and Lessee (or their respective successors and assignees) to cancel, waive, terminate, surrender, amend or modify this Lease, such terms(b) with respect to any acceptance by Lessor of any attempted cancellation, conditions and maturity as Tenant may determine. Provided that all requirements termination, or surrender of this Lease are at all times complied withor the Leased Premises on the part of Lessee, Tenant may enter into and/or (c) with respect to any and all such extensions, modifications termination or amendments of any such deed of trust as it may desire. Tenant shall, upon execution of any such deed of trust, promptly deliver a true copy cancellation of the deed of trust to Landlord. The aggregate amount secured by all such deeds of trust shall not exceed eighty-five percent (85%) of the fair market value of Tenant’s leasehold interest under this Lease and all buildings and other improvements constructed on the Premises or to be constructed oh the Premises during the Term. The Beneficiary and its respective assigns may enforce such deed of trust and may acquire title to the leasehold estate of Tenant in any lawful way and, pending foreclosure of such deed of trust (or bona fide sale or assignment in lieu of foreclosure) may take possession of and sublease the Premises, or cause any person having the relationship of an independent contractor to the Beneficiary to take possession of and sublease the Premises. Upon foreclosure thereof (or any bona fide sale or assignment in lieu of foreclosure) the Beneficiary may without further consent of Landlord sell and assign this Lease, by assignment in which the assignee shall expressly assume and agree to observe and perform all the covenants of Tenant hereunder for so long as it shall retain title to Tenant’s interest hereunder. Any assignee who has acquired title to this Lease by way Lessee and/or Lessor pursuant to Articles 12 and 13 of foreclosure or deed in lieu thereof may only assign its rights under the Lease, or any other than by way provision of deed the Lease which gives Lessee and/or Lessor an express right to terminate or cancel the Lease. Any proposed or attempted amendment, waiver, cancellation, surrender, or termination of trust, in compliance with Section XIII.F heretothis Lease without the prior written consent of any Leasehold Mortgagee whose consent is required pursuant to the terms of such Leasehold Mortgagee’s Leasehold Mortgage shall be void and of no force or effect.

Right to Encumber. Any provision herein At any time and from time to time during the Term, notwithstanding anything contained in this Lease to the contrary notwithstandingcontrary, Tenant including, without limitation, Section 2.14 above, Lessee shall have the right without to enter into a Leasehold Mortgage upon and subject to each and all of the following terms and conditions, subject to the reasonable consent of Landlord (which consent Landlord shall grant so long as the proposed Leasehold Mortgage satisfies all of the following conditions, which conditions shall apply to encumber the Permitted Leasehold Mortgage securing the Construction Loan (as defined in the Affordable Housing Agreement), the Permitted Leasehold Mortgage securing the initial Permanent Loan (as defined in the Affordable Housing Agreement): (a) The Leasehold Mortgage shall cover all of Lessee's interest in the Lease, the Property and the Improvements and shall cover no interest in any other real property other than Lessee's. (b) The Leasehold Mortgage shall be without subordination of the fee simple title of the Property. (c) No such Leasehold Mortgage shall be binding upon Landlord in the enforcement of its rights and remedies herein, unless and until Lessee (or a Leasehold Mortgagee) delivers or causes to be delivered to Landlord a certified copy of the fully executed original Leasehold Mortgage bearing the date and recording information and a certified copy of the original note secured by way the Leasehold Mortgage, together with written notice of the address of the Leasehold Mortgagee to which notices may be sent. In the event of an assignment of such Leasehold Mortgage, such assignment shall not be binding upon Landlord unless and until a certified copy thereof, bearing the date and recording information together with written notice of the address of the assignee thereof to which notices may be sent, have been delivered to Landlord. (d) No Leasehold Mortgage permitted by this Lease shall cover more than one indebtedness; that is, there shall be no cross-collateralization permitted. (e) A Leasehold Mortgage is to be originated only by a Qualified Lender. For the purposes hereof, the term “Qualified Lender” shall consist of: (i) the mortgagee of any purchase money financing of a deed Permitted Transfer or other Transfer approved by Landlord; or (ii) any one or a combination of the following lending institutions authorized under applicable California or federal law to make mortgage loans and not under any order or judgment of any court or administrative authority restricting or impairing its operation as a lender: a commercial or savings bank; a trust company; an insurance company; a savings and loan association; a building and loan association; or (iii) any company engaged in the ordinary course of business as a lender with a net worth or assets of not less than $50,000,000, which is duly licensed or registered (if legally required) with any regulatory agency having jurisdiction over its operation, and is not under any order or judgment of any court or administrative authority restricting or impairing its operation as a lender, including, without limitation, the following: a real estate investment trust; an educational institution; a pension, retirement or welfare fund; a charity; or an endowment fund or foundation authorized to make loans in the State of California; or (iv) any partner of Lessee's partnership, as provided in the Affordable Housing Agreement. Landlord acknowledges that the identity and nature of lending institutions change over time, and agrees that Landlord's approval of any proposed mortgage lender that is not a “Qualified Lender” as defined in this paragraph 2.23.2 shall not be unreasonably withheld, conditioned or delayed. Notwithstanding anything contained in this Lease to the contrary, Landlord expressly acknowledges that the holders of the Construction Loan and the Initial Permanent Loan (the “Construction Lender” and the “Initial Permanent Lender” as defined in the Affordable Housing Agreement, respectively) are Qualified Lenders and Permitted Leasehold Mortgagees for all or any portion purposes of Tenant’s right, title and interest in, to and under this Lease. Any such deed . (f) All rights acquired by the Leasehold Mortgagee under the Leasehold Mortgage shall be subject to each and all of trust may contain, except where particular termsthe covenants, conditions or maturity are required by and restrictions set forth in this Lease, such termsand to all rights of Landlord hereunder. Except as otherwise set forth in this Lease, Landlord shall not be deemed to waive any covenants, conditions and maturity as Tenant may determinerestrictions contained in this Lease by reason of Lessee's grant of a Leasehold Mortgage. Provided that Notwithstanding any foreclosure of any Leasehold Mortgage, Lessee shall remain liable for the performance of all requirements of the terms, covenants and conditions of this Lease which by the terms hereof are at all times complied with, Tenant may enter into any and all such extensions, modifications or amendments of any such deed of trust as it may desire. Tenant shall, upon execution of any such deed of trust, promptly deliver a true copy of the deed of trust to Landlord. The aggregate amount secured by all such deeds of trust shall not exceed eighty-five percent (85%) of the fair market value of Tenant’s leasehold interest under this Lease and all buildings and other improvements constructed on the Premises or to be constructed oh the Premises during the Term. The Beneficiary carried out and its respective assigns may enforce such deed performed by Lessee. (g) No extension, nor modification, change or amendment to a material financing term of trust and may acquire title to the leasehold estate of Tenant in any lawful way and, pending foreclosure of such deed of trust (or bona fide sale or assignment in lieu of foreclosure) may take possession of and sublease the Premisesa Leasehold Mortgage shall be effective, or cause any person having the relationship of an independent contractor to the Beneficiary to take possession of binding upon Landlord, unless and sublease the Premises. Upon foreclosure thereof (or any bona fide sale or assignment in lieu of foreclosure) the Beneficiary may without further consent of Landlord sell and assign this Leaseuntil approved by Landlord, by assignment in which the assignee approval shall expressly assume and agree to observe and perform all the covenants of Tenant hereunder for be granted so long as it shall retain title to Tenant’s interest hereunder. Any assignee who has acquired title to this Lease by way such extension or material modification, change or amendment satisfies the applicable requirements of foreclosure or deed in lieu thereof may only assign its rights under the Leaseparagraphs (a) through (f), other than by way of deed of trust, in compliance with Section XIII.F heretoabove.

Right to Encumber. Any provision herein contained Notwithstanding the provisions set forth in Section 17.1 regarding any assignment of this Lease, but subject to the contrary notwithstandingprovisions of this Section 18, Tenant shall have the right without the consent of Landlord at any time and from time to time to encumber its Leasehold Estate by way one or more Leasehold Mortgages. If Tenant desires to take advantage of a deed the “proviso” contained in Section 16.2(a) above, Tenant shall give Landlord not less than ten (10) business days prior to the funding of trust all or any portion of the loan sufficient information in Tenant’s right, title and interest in, to and under this Lease. Any such deed of trust may contain, except where particular terms, conditions or maturity are required by this Lease, such terms, conditions and maturity as Tenant may determine. Provided that all requirements of this Lease are at all times complied with, Tenant may enter into any and all such extensions, modifications or amendments of any such deed of trust as it may desire. Tenant shall, upon execution of any such deed of trust, promptly deliver a true copy possession regarding the amount of the deed loan and the then fair market value of trust to Landlord. The aggregate the Improvements so that Landlord can verify that the amount secured by all such deeds of trust shall the Leasehold Mortgage, together with any previous Leasehold Mortgages still encumbering the Leasehold Estate, does not exceed eighty-five eighty percent (8580%) of the then fair market value of Tenant’s leasehold the Improvements. If Landlord desires to contest whether or not the amount of the Leasehold Mortgage, together with any previous Leasehold Mortgages still encumbering the Leasehold Estate, exceeds eighty percent (80%) of the then fair market value of the Improvements, Landlord shall provide Tenant with written notice that Landlord contests said valuation and the issue shall be submitted to binding arbitration as provided in Section 20 below. Any Leasehold Mortgagee shall have the unrestricted right to assign, sell, participate, securitize and otherwise deal with its security interest in the Leasehold Mortgage as it sees fit and without the necessity of obtaining any consent from Landlord. Landlord shall not in any way subordinate any of its rights under this Lease to any Leasehold Mortgagee and any Leasehold Mortgagee who forecloses on its Leasehold Mortgage shall agree to abide by and be bound by all buildings and other improvements constructed on the Premises or to be constructed oh the Premises terms of this Lease during the Termterm of its ownership of the Tenant’s Leasehold Estate. The Beneficiary Tenant shall deliver to Landlord promptly after execution by Tenant a true and its respective assigns may enforce such deed verified copy of trust any Leasehold Mortgage and may acquire title any amendment, modification or extension thereof, together with the name and address of the Leasehold Mortgagee and shall pay or reimburse Landlord for all fees and costs, including reasonable attorneys’ fees, incurred by Landlord in connection with review of said documents to insure compliance with this Lease. No Leasehold Mortgage shall be collateralized by property in addition to the leasehold estate of Tenant in any lawful way and, pending foreclosure of such deed of trust (or bona fide sale or assignment in lieu of foreclosure) may take possession of and sublease the Premises, or cause any person having the relationship of an independent contractor to the Beneficiary to take possession of and sublease the Premises. Upon foreclosure thereof (or any bona fide sale or assignment in lieu of foreclosure) the Beneficiary may without further consent of Landlord sell and assign this Lease, by assignment in which the assignee shall expressly assume and agree to observe and perform all the covenants of Tenant hereunder for so long as it shall retain title to Tenant’s interest hereunder. Any assignee who has acquired title to this Lease by way of foreclosure or deed in lieu thereof may only assign its rights under the Lease, other than by way of deed of trust, in compliance with Section XIII.F hereto.

Right to Encumber. Any provision herein contained to the contrary notwithstanding, Tenant shall have the right without the consent of Landlord to encumber by way of a deed of trust all or any portion of Tenant’s right, title and interest in, to and under this Lease. Any such deed of trust may contain, except where particular terms, conditions or maturity are required by this Lease, such terms, conditions and maturity as Tenant may determine. Provided that all requirements of this Lease are at all times complied with, Tenant may enter into any and all such extensions, modifications or amendments of any such deed of trust as it may desire. Tenant shall, upon execution of any such deed of trust, promptly deliver a true copy of the deed of trust to Landlord. The aggregate amount secured by all such deeds of trust shall not exceed eighty-five percent (85%) of the fair market value of Tenant’s leasehold interest under this Lease and all buildings and other improvements constructed on the Premises or to be constructed oh on the Premises premises during the Term. The execution and delivery of any such deed of trust shall not be deemed to constitute such an assignment or transfer of this Lease as would require the holder or holders thereof, as such, to assume the observation or performance of any of the terms, covenants or conditions on the part of Tenant to be observed or performed hereunder. The Beneficiary and its respective assigns may enforce such deed of trust and may acquire title to the leasehold estate of Tenant in any lawful way and, pending foreclosure of such deed of trust (or bona fide sale or assignment in lieu of foreclosure) may take possession of and sublease the Premises, or cause any person having the relationship of an independent contractor to the Beneficiary to take possession of and sublease the Premises. Upon foreclosure thereof (or any bona fide sale or assignment in lieu of foreclosure) the Beneficiary may without further consent of Landlord sell and assign this Lease, by assignment in which the assignee shall expressly assume and agree to observe and perform all the covenants of Tenant hereunder for so long as it shall retain title to Tenant’s interest hereunder. Any assignee who has acquired title to this Lease by way of foreclosure or deed in lieu thereof may only assign its rights under the Lease, other than by way of deed of trust, in compliance with Section XIII.F hereto. The Beneficiary or its assigns shall be liable to perform only the obligations of Tenant hereunder which arose during the period such entity had title to Tenant’s interest hereunder.

Right to Encumber. Any provision herein contained Notwithstanding anything to the contrary notwithstanding, Tenant shall have contained in the right without the consent of Landlord to encumber by way of a deed of trust all or any portion of Tenant’s right, title and interest in, to and under this Lease. Any such deed of trust may contain, except where particular terms, conditions or maturity are required by this Lease, such terms, conditions and maturity as Tenant may determine. Provided that all requirements of this Lease are at all times complied with, Tenant may enter into at any time and all such extensionsfrom time to time without Landlord's consent, modifications encumber, hypothecate, mortgage, pledge or amendments of any such deed of trust as it may desire. Tenant shallalienate Tenant's leasehold estate and rights hereunder, upon execution of any such deed of trust, promptly deliver a true copy of and Tenant's interest in the deed of trust to Landlord. The aggregate amount secured by all such deeds of trust shall not exceed eighty-five percent (85%) of the fair market value of Tenant’s leasehold interest under this Lease and all buildings Bui▇▇▇▇▇ and other improvements constructed by Tenant on the Premises Premises, as security for payment of any indebtedness of Tenant to a lender or investor; provided, however, such encumbrance, hypothecation, mortgage, pledge or alienation shall not encumber Landlord's fee title or reversionary interest in orto the Premises, the Tenant Improvements, and Landlord's right to receive Rent and Additional Rent hereunder shall have priority over the rights of any Leasehold Mortgagee (as defined below). Any such encumbrance, hypothecation, mortgage, pledge or alienation shall be constructed oh referred to herein as a "Leasehold Mortgage," and the Premises during the Term. The Beneficiary and its respective assigns holder of a Leasehold Mortgage shall be referred to herein as Leasehold Mortgagees." A Leasehold Mortgagee may enforce such deed of trust its Leasehold Mortgage and may acquire title to the leasehold estate of Tenant in any lawful way and, pending foreclosure of such deed of trust (or bona fide sale or assignment in lieu of foreclosure) Leasehold Mortgage, such Leasehold Mortgagee may take possession of and sublease operate the Premises, performing all obligations of Tenant under this Lease capable of being performed by such Leasehold Mortgagee, and upon foreclosure of such Leasehold Mortgage by judicial foreclosure, or cause any person having upon acquisition of the relationship of an independent contractor to the Beneficiary to take possession of and sublease the Premises. Upon foreclosure thereof (or any bona fide sale or assignment leasehold estate by deed in lieu of foreclosure) , the Beneficiary may without further consent of Landlord Leasehold Mortgagee may, upon notice to Landlord, sell and assign this Lease, by assignment in which the assignee shall expressly assume and agree leasehold estate hereby created; subject to observe and perform all the covenants requirements of Tenant hereunder for so long as it shall retain title to Tenant’s interest hereunder. Any assignee who has acquired title to this Lease by way of foreclosure or deed in lieu thereof may only assign its rights under the Lease, other than by way of deed of trust, in compliance with Section XIII.F hereto.20.4