ADDENDUM TO THE
INDIAN LINE FARM LEASE AGREEMENT
between
COMMUNITY
LAND TRUST IN THE SOUTHERN BERKSHIRES, INC.
and
________________________________
The following provisions are hereby made a part of the foregoing
Indian Line Farm Lease Agreement between ____________________ (Lessees) and the
Community Land Trust in the Southern Berkshires, Inc. (Land Trust) for the
purpose of securing mortgage financing from certain "institutional lenders" as
defined further in this document, for improvements of the Lessees which are
located on the Leasehold referenced by the agreement.
1. Permitted Mortgage(s)
1.A. For the purpose of
this Addenum to the Lease Agreement, a "permitted mortgage" shall be a
mortgage, and "permitted mortgages" shall be mortgages:
1.A(i) which shall run
in favor of a so-called "institutional lender": such as, but not limited to, a federal, state, or local
housing finance agency, a bank (including savings and loan associations), and
insurance company, a pension and/or profit sharing fund or trust, or any
combination of the foregoing, the policies and procedures of which
institutional lender are subject to direct governmental supervision, and which
is to have a first lien on both Lessees' dwelling unit and on the leasehold
created hereby ("Lessees' leasehold estate");
1.A(ii) which shall
provide among other things, that in the event of a default by Lessees in any of
the mortgagor's obligations thereunder, the holder thereof shall notify Land
Trust of such fact and Land Trust shall have the rights (but shall not have the
obligation) within 30 days after its receipt of such notice, to cure such
default in Lessees' name on Lessees behalf, provided that current payments due
the holder during 30 day period (or such Land Trust time period as may have
been required to cure such default) are made to the holder, and shall further
provide that said holder shall not have the right, unless such default shall
not have been cured within such time, to accelerate the note secured by such
permitted mortgage or to foreclosure under the permitted mortgage on account of
such default;
1.A(iii) which shall
provide, among other things, that in the event the permitted mortgagee intends
to accelerate the note secured by such permitted mortgage or initiate foreclosure
proceedings under the permitted mortgage, all in accordance with this Section,
the permitted mortgagee shall first notify Land Trust of its intention to do so
and Land Trust shall have the right, but not the obligation, upon notifying the
permitted mortgagee within thirty (30) days of receipt of said notice from
permitted mortgagee, to payoff the indebtedness secured by the permitted
mortgage and to acquire Lessees' dwelling unit and Lessees' leasehold estate;
and
1.A(iv) which shall
secure loans the sole and exclusive purpose of which shall be to finance the
acquisition of Lessees' dwelling unit and Lessees' leasehold estate .
1.B. Any permitted
mortgagee shall have the right, but not the obligation, without requirement of
consent by Land Trust to:
1.B(i) Cure any default
of Lessees under this lease, and to perform any obligation required of Lessees
hereunder, and any such cure or performance by permitted mortgagee shall be
effective as if the same had been undertaken and performed by Lessees;
1.B(ii) Acquire and
convey, assign, transfer to and exercise any right, remedy or privilege granted
to Lessees by this lease or otherwise by law, subject other provisions, if any
in said mortgage limiting any exercise of any such right, remedy or privilege;
and
1.B(iii) Rely upon and
enforce any provisions of the lease to the extent that such provisions are for
the benefit of a permitted mortgagee.
Permitted mortgagee shall not, as a condition to the exercise of its
rights hereunder, be required to assume personal liability for the payment and
performance of the obligations of Lessees hereunder, and any such payment or
performance or other act by permitted mortgagee hereunder shall not be
construed as an agreement by permitted mortgagee to assume such personal
liability except to the extent permitted mortgagee actually takes possession of
the leasehold and dwelling unit after judicial or non-judicial foreclosure of
the mortgage; provided, however, in the event that the permitted mortgage transfers the leasehold and
dwelling unit to a purchaser (other than permitted mortgagee at any judicial
foreclosure sale or trustee's sale of Lessees' interests hereunder) any such transferee shall be required
to enter into a written agreement assuming such personal liability and upon any
such assumption the permitted mortgagee shall automatically be released from
personal liability thereunder.
In the event that title to the estates of both Lessees and Land Trust
shall be acquired at any time by the same person or persons, no merger of said
estates shall occur without prior written declaration of permitted mortgagee,
so long as permitted mortgagee owns any interest in the leasehold, in Lessees'
dwelling unit, or in said mortgage.
In the event that the estate of Land Trust is owned at any time by
Lessees (regardless of a merger), or by any person in which Lessees has a
direct or indirect interest, permitted mortgagee shall not be obligated to cure
any default of Lessees hereunder as condition to the forebearance by Land Trust
in the exercise of Land Trust remedies as herein provided. Any default of the lease by Lessees, of
which notice is given to Lessees by Land Trust shall also be given, by Land
Trust, to the mortgagee of record of such Lessees.
The Land Trust shall have no right to cancel after mortgagee's notice
of default and during any continuing default, providing further that permitted
mortgagee may extend said 60 day period by an additional 30 day period by
giving written notice of same within the said 60 day period.
1.C. Any amendments to
this lease shall be subject to the written approval of permitted mortgagee,
which approval shall not be unreasonably witheld or delayed. The passage of thirty (30) days after
submittal to permitted mortgagee of such requested amendments without approval
or disapproval by permitted mortgagee shall be deemed approval thereof.
1.D. The provisions set
forth in this Clause 1 shall be binding upon and inure to the benefit of the
successors, assigns and personal representatives of Land Trust, Lessees and
permitted mortgagee.
1.E. Whenever in this
Clause 1 notice is to be given to permitted mortgagee, such notice shall be
given in the manner set forth for notices, hereinafter provided to the
permitted mortgagee at the address given by the permitted mortgagee to Land
Trust by written notice to Land Trust sent in the manner set forth for notices
hereinafter.
1.F. Lessees shall pay
to Land Trust, at Land Trust's option, as additional fees hereunder, all costs
and expenses, including, without limitation, reasonable attorney's fees,
incurred by Land Trust in connection with any permitted mortgage.
2. In the event of any
default in the terms of the lease (as defined in lease section 10 -
Termination), written notice of such default shall be given by the Land Trust
to the Lessees with a copy to Lessees' mortgagee during such time or term as
Lessees have given a mortgage interest of record.
3. In the event of a
default by the Lessees, Lessees' mortgagee shall be allowed to do all acts required,
to act in Lessees' stead, to cure
such default, providing nevertheless that prior to such cure, such mortgagee
shall notify Lessees and Land Trust of its intent with regard to the time and
manner of effecting such a cure.
The right of such mortgagee to so cure shall be in the same manner and
method as that required of the Lessees.
In the event of a default or a pending default, where an assignment of
Lessees' interest to such mortgagee is contemplated, such mortgagee may accept
such assignment; providing further that in such event such mortgagee agrees to give notice of same to
Land Trust and Land Trust shall have the option to assume same by paying all
obligations of the defaulting Lessees.
4. In the event that
Lessees' lease is terminated by default which Lessees cannot cure in a
reasonable time and manner, such mortgagee shall be entitled to receive a new
lease from Land Trust, providing further that the Land Trust, prior to
providing a new lease to such mortgagee, shall have reasonable time to
effectuate a purchase of the defaulting Lessees' interest and to satisfy the
Lessees' obligations to such mortgagee.
Sixty (60) days shall be deemed a reasonable time for such purposes;
providing further that such purchase shall be the adjusted sale value of the
premises (and providing further that in no event shall such purchase be for an
amount less than the amount required to satisfy the mortgagee's mortgage
principal, interest and costs.)
Such mortgagee shall be entitled to continuation or renewal of the
Lessees' lease. In the event of
(1) Lessees' default and (2) Land Trust's failure to purchase as provided
herein or failure to satisfy all claims of the mortgagee, and (3) such
mortgagee proceeds under its mortgage with a foreclosure sale, mortgagee shall
conduct said sale in accord with the provisions of the General Laws of the
Commonwealth of Massachusetts. In
the event mortgagee is the purchaser at such foreclosure, mortgagee as such
purchaser and owner, shall be free to sell said premises to any purchaser at
the best possible price, in its discretion. This provision for foreclosure sale by the mortgagee after
exhaustion of rights specified herein for the benefit of the Land Trust, shall
apply to all provisions in this lease relating to foreclosure by such
mortgagee.
5. Taxes In the event that the Lessees obtains a
mortgage and the mortgagee thereunder requires Lessees to pay taxes to the
mortgagee in escrow, Land Trust agrees that Lessees may make such payments to
mortgagee, instead of to the Land Trust.
Land Trust, upon request of Lessees, agrees to promptly send the
applicable tax bill in its possession or copies thereof, to such a mortgagee,
provided the mortgagee pays such taxes directly to the taxing authority in a
timely manner. In the event that
the mortgagee fails to pay to the taxing authority the applicable taxes when
due, Lessees upon demand of Land Trust shall pay such taxes directly to Land
Trust.
6. Casualty and Hazard
Insurance.
6.A. Lessees at his/her
sole expense, shall maintain, or cause to be maintained, homeowner's hazard,
casualty and liability insurance.
Land Trust shall be named as an additional insured in said policies
together with Lessees, and at the election of the Lessees, together with other
interested parties. The Lessees'
mortgagee, if any, shall be named as an additional insured in the homeowner's
hazard insurance policy. Such
insurance shall provide comprehensive general public liability insurance with
contractual coverage, such insurance to afford protection in minimum limits of
liability of not less than $250,000 for injury (or death) to any one person,
and $500,000 for injury (or death) to more than one person; and $100,000 with
respect to damage to property.
Such policy shall also provide insurance against loss or damage to any
improvements by fire and any of the risks covered by insurance of the type now
known as "fire and extended coverage" which shall contain a "Replacement Cost
Endorsement" (covering 100% of the full replacement costs, from time to time of
any improvements, exclusive of foundations) and insurance against such other
hazards and contingencies as Land Trust shall from time to time reasonably
require. The hazard insurance
policy may provide, at the election of mortgagee, that in the event of
casualty, proceeds from such policy shall be first paid to the permitted
mortgagee, as hereinafter defined
Each such policy of insurance required to be carried by Lessees pursuant
to this or a certificate thereof, shall be promptly deposited with the Land
Trust and with the mortgagee, if any, and in the case of the renewal of such
policy, shall be deposited not less than ten (10) days prior to the expiration
date of the expiring policy. Such
policies shall provide that the same may not be cancelled or coverage reduced
without at least thirty (30) days prior written notice to Land Trust and the
mortgagee, if any, (but only so long as such thirty (30) day notice period is
available from responsible insurance companies doing business in the Commonwealth
of Massachusetts; if a shorter notice period is required then the foregoing
thirty (30) day period shall be reduced to the shorter period thus
required). In addition, if Lessees
shall elect not to renew any such policy, Lessees shall send Land Trust and
mortgagee any written notice thereof at least thirty (30) days prior to the
expiration of such policy, accompanied by copies of the policy or policies
which Lessees proposes to substitute therefor.
6.B. It is specifically
understood and agreed that the Land Trust shall have no responsibility
whatsoever with respect to the maintenance of the leasehold or any part thereof
except for any damage caused by the fault or neglect of Land Trust, or anyone
claiming under Land Trust. Lessees
agrees to hold Land Trust harmless and indemnified from and against all claims,
demands, expenses and damages whatsoever which may be asserted against Land
Trust by reason of any activity, act, omission, neglect or default of Lessees,
or any occurrence on or about the leasehold.
6.C. In addition to the
insurance required to be maintained by Lessees pursuant to the above
provisions, Lessees shall maintain, at their expense such other insurance as
from time to time shall be required by the holder of any mortgage on the
premises and shall deposit each such policy of insurance, or a certificate
thereof, promptly with Land Trust, and in the case of the renewal of such
policy, Lessees shall deposit such policy, or a certificate thereof, not less
than ten (10) days prior to the expiration date of the expiring policy. Each such policy shall name Land Trust
as a party insured together with Lessees and, at the election of Lessees,
together with other interested parties.
7. In the event of
condemnation involving a total taking, Lessees' share of the amount paid on
account of such condemnation shall be payable to mortgagee, to the extent only
of liability by mortgagor to mortgagee; and in the event of a partial taking,
the amount payable shall be applied first to restoration and any excess to the
mortgagee. Any condemnation
payments paid to Land Trust shall be paid to mortgagee in proportion to the
mortgagee's interest in the condemnation proceeds.
8. Land Trust warrants
that the leasehold estate interest granted to Lessees is free of any prior
mortgage and that any mortgage of record held by Land Trust, shall be released
as to Lessees' leasehold estate .
9. Lessees shall have no
right to cancel the lease so long as Lessees' mortgage remains outstanding,
even in the event that the leased premises are damaged or destroyed. The terms and provisions of the lease
shall not be amended during the term of Lessees' mortgage, or during Lessees'
holding of the leasehold by
Lessees, except as specified herein above. The lease may not be cancelable because of pending
foreclosure proceedings, so-long as such proceedings are prosecuted diligently,
subject only to the right of the Land Trust to purchase the defaulting Lessees'
interest, including satisfaction in the same.
10. Default Clause.
10.A.a. If Lessees shall
fail to pay the fees or other charges provided for within the lease within
fifteen (15) days after Land Trust has sent to Lessees notice of such default
and such default is not cured by any permitted mortgagee within thirty (30)
days after a subsequent notice from Land Trust to such permitted mortgagee of
Land Trust's failure to cure such default within the initial 15-day grace
period, or ;
10.A.b. Lessees shall
fail to perform or observe any other term or condition in this lease, and such
failure is not cured by Lessees or a permitted mortgagee within thirty (30)
days after notice from Land Trust to Lessees and such permitted mortgagee
thereof (but in the case where the Land Trust or permitted mortgagee has
commenced to cure such default within such thirty (30) day period and
continuing such cure with all reasonable due diligence but cannot by the
exercise of due diligence cure such default within such period, such period
shall be extended for such additional period as may be reasonable under the
circumstances), or
10.A.c. If the leasehold
estate hereby created shall be taken on execution or by other process of law,
or if Lessees shall be judicially declared bankrupt or insolvent according to
law, or if any assignment shall be made of the property of Lessees for the
benefit of creditors, or if a receiver, guardian, conservator, trustee in
involuntary bankruptcy or other similar officer shall be appointed to take
charge of all or any substantial part of Land Trust's property by a court of
competent jurisdiction, or if a petition shall be filed for the reorganization
of Lessees under any provisions of the Bankruptcy Act now or hereafter enacted,
or if Lessees shall file a petition for such reorganization, or for
arrangements under any provision of the Bankruptcy Act now or hereafter enacted
and providing a plan for debtor to settle, satisfy or extend the time for
payment of debts (references herein to Lessees shall include any guarantor(s)
of Lessees' obligations hereunder), then, and in any of said cases
(notwithstanding any license of a former breach of covenant or waiver of the
benefit hereof of consent in a former instance), Land Trust may immediately or
at any time thereafter initiate summary proceedings and pursuant to such
proceedings, without demand or notice, enter into and upon the leasehold or any
part thereof in the name of the whole repossess the same as of Land Trust's
former leasehold, and expel Lessees and those claiming through or under Lessees
and remove its or their effects without being guilty of any manner of trespass,
and without prejudice to any remedies which might otherwise be used for arrears
of fees or preceding breach of covenants, and, upon entry as aforesaid Land
Trust shall have the right, by suitable notice to Lessees, forthwith to
terminate this lease; and Lessees covenants and agrees, notwithstanding any
entry or re-entry by Land Trust whether by summary proceedings, termination, or
otherwise, to pay and be liable for, on the days originally fixed herein for
the payment thereof, amounts equal to the several fees and other charges
reserved as they would, under the terms of this lease, become due if this
leasehold be re-leased or remain vacant, in whole or in part, or for a period
less than the remainder of the term, or for the whole thereof, but, in the
event the leasehold be relet by Land Trust, Lessees shall be entitled to a
credit in the net amount of fees and other charges received by Land Trust in re-leasing,
after deduction of all expenses incurred in re-leasing the site (including,
without limitation, leasehold improvement costs, brokerage fee and the like),
and in collecting the fees in connection therewith, in the following manner:
Amount received by Land Trust after re-leasing shall first be applied
against such Land Trusts expenses, until the same are recovered, and until such
recovery, Lessees shall pay, as of each day when a payment would fall due under
this lease, the amount which Lessees is obligated to pay under the term of this
lease (Lessees' liability prior to any such re-leasing and such recovery not to
be diminished in any way as a result of the fact that such re-leasing might be
for a fee higher than the fee provided for in this lease); when and if such
expenses have been completely recovered, the amounts received from re-leasing
by Land Trust as have not previously been applied shall be credited against
Lessees' obligations as of each day when payment would fall due under this
lease, and only the net amount thereof shall be payable by Lessees. Further, amounts received by Land Trust
from such re-leasing for any period shall be credited only against obligations
of Lessees allocable to such period, and shall not be credited against obligations
of Lessees hereunder accruing subsequent or prior to such period; nor shall any
credit of any kind be due for any period after the date when the term of this
lease is scheduled to expire according to its terms.
Without limiting any of Land Trust's rights and remedies hereunder,
and in addition to all other amounts Lessees is otherwise obligated to pay, it
is expressly agreed that Land Trust shall be entitled to recover from the
Lessees all costs and expenses, including reasonable attorney's fees, incurred
by Land Trust in enforcing this lease from and after Lessees' default.
Notwithstanding anything to the contrary contained herein, if (i)
Land Trust shall have sent to Lessees a notice of any failure to pay the fees
or other charges due under the lease, even though the same shall have been
cured and this lease not terminated; and (ii) during the same twelve (12) month
period in which said notice of default had been sent by Land Trust to Lessees,
Lessees thereafter shall default in any such monetary payment, the same shall
be deemed to be an event of default upon the Land Trust's giving Lessees
written notice thereof, without the fifteen (15) day grace period set forth
above.
10.B. If the lease shall
be terminated for any reason, or in the event of the rejection or disaffirmance
of the lease pursuant to bankruptcy law or other law affecting creditors'
rights, Land Trust will enter into a new lease of the leasehold with the
permitted mortgagee or any party designated by the permitted mortgagee, subject
to Land Trust's approval, which approval shall not be reasonably withheld, not
less than ten (10) nor more than thirty (30) days after the request of the
permitted mortgagee, for the remainder of the term of the lease, effective as
of the date of such termination, rejection or disaffirmance, upon all the terms
and provisions contained in the lease provided that the permitted mortgagee
makes a written request to Land Trust for such new lease within thirty (30)
days after the effective date of such termination, rejection or disaffirmance,
as the case may be, and such written request is accompanied by a copy of such
new lease, duly executed and acknowledged by the permitted mortgagee or the
party designated by the permitted mortgagee to be the Lessees thereunder, and
the permitted mortgagee cures all defaults under the lease which can be cured
by the payment of money and pays to Land Trust all fees which would at the time
of such execution and delivery be due and payable by Lessees under the lease
but for such rejection, disaffirmance or termination. Any new lease made pursuant to this clause shall have the
same priority with respect to other interests in the site as the lease. The provisions of this clause shall
survive the termination, rejection or disaffirmance of the lease and shall
continue in full effect thereafter to the same extent as if this Section were
independent and an independent contract made by Land Trust, Lessees and the
permitted mortgagee and, from the effective date of such termination, rejection
or disaffirmance of the lease to the date of execution and delivery of such new
lease, the permitted mortgagee may use and enjoy the leasehold estate created
by the lease without hindrance by Land Trust.
If Land Trust shall elect to terminate the lease pursuant to any
provision thereof, then the permitted mortgagee shall have the right to
postpone and extend the specified date for the termination of the Lease for a
period sufficient to enable the permitted mortgagee or its designee to acquire
Lessees' interest in the lease by foreclosure of its mortgage or otherwise.
10.C. Land Trust shall
in no event be in default in the performance of any of Land Trust' obligations
hereunder unless and until Land Trust shall have failed to perform such
obligations within thirty (30) days, or such additional time as is reasonably
required to correct any such default, after notice by Lessees to Land Trust
properly specifying wherein Land Trust has failed to perform any such
obligation.
10.D.
During the period a permitted mortgage is in place, the Land Trust shall
not accept a voluntary surrender of the lease without the prior written consent
of the permitted mortgagee.
11.
Miscellaneous Provisions
11.A.
Extra Hazardous Use.
Lessees covenants and agrees that Lessees will not do or permit anything
to be done in or upon the leasehold, or to bring anything or keep anything
therein, which shall increase the rate of insurance on the leasehold or on the dwelling
unit above the standard rate applicable to a leasehold and dwelling unit being
occupied for the use to which Lessees has agreed to devote the leasehold; and
Lessees further agrees that, in the event that Lessees shall violate the terms
of this paragraph, Lessees will promptly pay to Land Trust, on demand, any such
increase resulting therefrom, which shall be due and payable as additional fees
hereunder.
Nothing hereinabove stated clause 11.A., shall be
construed to create any obligations in the mortgagee for any acts of the Land
Trust or Lessees/mortgagor.
11.B.
Invalidity of Particular Provisions. If any term or provision of this lease, or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this lease shall be valid and be enforced to the fullest extent
permitted by law.
11.C.
Notices. Whenever, by the
terms of this lease, notice shall or may be given either to Land Trust or to
Lessees, such notice shall be in writing and shall be delivered in hand or sent
by registered or certified mail, postage prepaid, return receipt requested:
If intended for Land Trust, addressed to Land
Trust at P. O. Box 276, Great Barrington, MA 01230 (or to such other address or addresses as may from
time to time hereafter be designated by Land Trust by like notice) and a copy
to ___________________________ If
intended for Lessees, addressed to Lessees at __________________________ (or to
such other address or addresses as may from time to time hereafter be
designated by Lessees by like notice).
All such notices shall be effective when delivered
in hand, or when deposited in the United States mail within the Continental
United States provided that the same are received in the ordinary course at the
address to which the same were sent.
11.E.
Protection of permitted mortgagee.
This lease shall supercede any mortgage from time to time encumbering
the leasehold, whether executed and delivered prior to or subsequent to the
date of this lease. Land Trust
agrees that it will not execute any mortgage encumbering the leasehold unless
(1) there is contained therein a subordination provision in confirmation of the
foregoing agreement and (2) Land Trust has obtained the prior written approval
of the permitted mortgagee.
IN WITNESS WHEREOF, the parties hereunto set their hands and seals
this _____________day of ___________.
LESSEE
________________________________________
LESSEE
________________________________________
COMMUNITY LAND TRUST IN THE SOUTHERN BERKSHIRES, INC.
By:______________________________________
President
By:______________________________________
Treasurer