Common use of Alternative to Waiver Clause in Contracts

Alternative to Waiver. Alternatively, in the event the waiver provided for in subsection (a) above is determined by a court of competent jurisdiction to be unenforceable, the following shall be the basis for the finder of fact’s determination of the fair market value of the Foreclosed Property as of the date of the foreclosure sale in proceedings governed by the Deficiency Statute: (i) the subject property shall be valued in an “as is” condition as of the date of the foreclosure sale, without any assumption or expectation that it will be repaired or improved in any manner before a resale after foreclosure; (ii) the valuation shall be based upon an assumption that the foreclosure purchaser desires a resale of the Foreclosed Property Interest for cash promptly (but no later than twelve (12) months) following the foreclosure sale; (iii) all reasonable closing costs customarily borne by the seller in commercial real estate transactions should be deducted from the gross fair market value of the Foreclosed Property Interest, including, without limitation, brokerage commissions, title insurance, a survey of the subject property, tax prorations, attorneys’ fees, and marketing costs; (iv) the gross fair market value of the Foreclosed Property Interest shall be further discounted to account for any estimated holding costs associated with maintaining it pending sale, including, without limitation, utilities expenses, property management fees, taxes and assessments (to the extent not accounted for in (iii) above), and other maintenance, operational and ownership expenses; and (v) any expert opinion testimony given or considered in connection with a determination of the fair market value of the Foreclosed Property Interest must be given by persons having at least five (5) years experience in appraising property and interests therein similar to the subject Property and the Foreclosed Property Interest and who have conducted and prepared a complete written appraisal of the subject Property and the Foreclosed Property Interest each taking into consideration the factors set forth above.

Alternative to Waiver. Alternatively, in the event the waiver provided for in subsection (a) above is determined by a court of competent jurisdiction to be unenforceable, the following shall be the basis for the finder of fact’s determination of the fair market value of the Foreclosed Mortgaged Property as of the date of the foreclosure sale in proceedings governed by Sections 51.003, 51.004 and 51.005 of the Deficiency Statute: Texas Property Code (as amended from time to time): (i) the subject property Mortgaged Property shall be valued in an “as is” condition as of the date of the foreclosure sale, without any assumption or expectation that it the Mortgaged Property will be repaired or improved in any manner before a resale of the Mortgaged Property after foreclosure; (ii) the valuation shall be based upon an assumption that the foreclosure purchaser desires a resale of the Foreclosed Mortgaged Property Interest for cash promptly (but no later than twelve ([12) ] months) following the foreclosure sale; (iii) all reasonable closing costs customarily borne by the seller in commercial real estate transactions should be deducted from the gross fair market value of the Foreclosed Property InterestMortgaged Property, including, without limitation, brokerage commissions, title insurance, a survey of the subject propertyMortgaged Property, tax prorations, attorneys’ fees, and marketing costs; (iv) the gross fair market value of the Foreclosed Mortgaged Property Interest shall be further discounted to account for any estimated holding costs associated with maintaining it the Mortgaged Property pending sale, including, without limitation, utilities expenses, property management fees, taxes and assessments (to the extent not accounted for in (iii) above), and other maintenance, operational and ownership expenses; and (v) any expert opinion testimony given or considered in connection with a determination of the fair market value of the Foreclosed Mortgaged Property Interest must be given by persons having at least five (5) years experience in appraising property and interests therein similar to the subject Mortgaged Property and the Foreclosed Property Interest and who have conducted and prepared a complete written appraisal of the subject Mortgaged Property and the Foreclosed Property Interest each taking into consideration the factors set forth above.

Alternative to Waiver. Alternatively, in the event the waiver provided for in subsection (a) above is determined by a court of competent jurisdiction to be unenforceable, the following shall be the basis for the finder of fact’s 's determination of the fair market value of the Foreclosed Mortgaged Property as of the date of the foreclosure sale in proceedings governed by the Deficiency Statute: applicable law (as amended from time to time): (i) the subject property Mortgaged Property shall be valued in an “"as is” " condition as of the date of the foreclosure sale, without any assumption or expectation that it the Mortgaged Property will be repaired or improved in any manner before a resale of the Mortgaged Property after foreclosure; (ii) the valuation shall be based upon an assumption that the foreclosure purchaser desires a resale of the Foreclosed Mortgaged Property Interest for cash promptly (but no later than twelve (12) -months) following the foreclosure sale; (iii) all reasonable closing costs customarily borne by the seller in commercial real estate transactions should be deducted from the gross fair market value of the Foreclosed Property InterestMortgaged Property, including, without limitation, brokerage commissions, title insurance, a survey of the subject propertyMortgaged Property, tax prorations, attorneys’ ' fees, and marketing costs; (iv) the gross fair market value of the Foreclosed Mortgaged Property Interest shall be further discounted to account for any estimated holding costs associated with maintaining it the Mortgaged Property pending sale, including, without limitation, utilities expenses, property management fees, taxes and assessments (to the extent not accounted for in (iii) above), and other maintenance, operational and ownership expenses; and (v) any expert opinion testimony given or considered in connection with a determination of the fair market value of the Foreclosed Mortgaged Property Interest must be given by persons having at least five (5) years experience in appraising property and interests therein similar to the subject Mortgaged Property and the Foreclosed Property Interest and who have conducted and prepared a complete written appraisal of the subject Mortgaged Property and the Foreclosed Property Interest each taking into consideration the factors set forth above.. MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING – Page 20 667354; Miami-Dade County – Florida

Alternative to Waiver. Alternatively, in the event the waiver provided for in subsection (a) above is determined by a court of competent jurisdiction to be unenforceable, the following provisions of this Section 17.3(b) shall be the basis for the finder of fact’s determination of the fair market value of the Foreclosed Property as of the date of the foreclosure sale in proceedings governed by Sections 51.003, 51.004 and 51.005 of the Deficiency Statute: Texas Property Code (as amended from time to time). In such event, (i) the subject property Property shall be valued in an “as is” condition as of the date of the foreclosure sale, without any assumption or expectation that it the Property will be repaired or improved in any manner before a resale of the Property after foreclosure; (ii) the valuation shall be based upon an assumption that the foreclosure purchaser desires a resale of the Foreclosed Property Interest for cash promptly (but no later than twelve (12) 12 months) following the foreclosure sale; (iii) all reasonable closing costs customarily borne by the seller in commercial real estate transactions should be deducted from the gross fair market value of the Foreclosed Property InterestProperty, including, without limitation, brokerage commissions, title insurance, a survey of the subject propertyProperty, tax prorations, attorneys’ fees, and marketing costs; (iv) the gross fair market value of the Foreclosed Property Interest shall be further discounted to account for any estimated holding costs costs, if any, in excess of estimated operating revenues associated with maintaining it the Property pending sale, including, without limitation, utilities expenses, property management fees, taxes and assessments (to the extent not accounted for in item (iii) above), and other maintenance, operational and ownership expenses; and (v) any expert opinion testimony given or considered in connection with a determination of the fair market value of the Foreclosed Property Interest must be given by persons having at least five (5) years years’ experience in appraising property and interests therein similar to the subject Property and the Foreclosed Property Interest and who have conducted and prepared a complete written appraisal of the subject Property and the Foreclosed Property Interest each taking into consideration the factors set forth above.

Alternative to Waiver. Alternatively, in the event the --------------------- waiver provided for in subsection (a) above is determined by a court of -------------- competent jurisdiction to be unenforceable, the following shall be the basis for the finder of fact’s 's determination of the fair market value of the Foreclosed Mortgaged Property as of the date of the foreclosure sale in proceedings governed by Sections 51.003, 51.004 and 51.005 of the Deficiency Statute: Property Code (as amended from time to time): (i) the subject property Mortgaged Property shall be valued in an “"as is” " condition as of the date of the foreclosure sale, without any assumption or expectation that it the Mortgaged Property will be repaired or improved in any manner before a resale of the Mortgaged Property after foreclosure; (ii) the valuation shall be based upon an assumption that the foreclosure purchaser desires a resale of the Foreclosed Mortgaged Property Interest for cash promptly (but no later than twelve (12) months) following the foreclosure sale; (iii) all reasonable closing costs customarily borne by the seller in commercial real estate transactions should be deducted from the gross fair market value of the Foreclosed Property InterestMortgaged Property, including, without limitation, brokerage commissions, title insurance, a survey of the subject propertyMortgaged Property, tax prorations, attorneys’ ' fees, and marketing costs; (iv) the gross fair market value of the Foreclosed Mortgaged Property Interest shall be further discounted to account for any estimated holding costs associated with maintaining it the Mortgaged Property pending sale, including, without limitation, utilities expenses, property management fees, taxes and assessments (to the extent not accounted for in (iii) above), and other maintenance, operational and ownership expenses; and (v) any expert opinion testimony given or considered in connection with a determination of the fair market value of the Foreclosed Mortgaged Property Interest must be given by persons having at least five (5) years experience in appraising property and interests therein similar to the subject Mortgaged Property and the Foreclosed Property Interest and who have conducted and prepared a complete written appraisal of the subject Mortgaged Property and the Foreclosed Property Interest each taking into consideration the factors set forth above.

Alternative to Waiver. Alternatively, in the event the waiver provided for in subsection (a) above is determined by a court of competent jurisdiction to be unenforceable, the following shall be the basis for the finder of fact’s 's determination of the fair market value of the Foreclosed Mortgaged Property as of the date of the foreclosure sale in proceedings governed by Sections 51.003, 51.004 and 51.005 of the Deficiency Statute: Property Code (as amended from time to time); (i) the subject property Mortgaged Property shall be valued in an “"as is” " condition as of the date of the foreclosure sale, without any assumption or expectation that it the Mortgaged Property will be repaired or improved in any manner before a resale of the Mortgaged Property after foreclosure; (ii) the valuation shall be based upon an assumption that the foreclosure purchaser desires a resale of the Foreclosed Mortgaged Property Interest for cash promptly (but no later than twelve ([12) ] months) following the foreclosure sale; (iii) all reasonable closing costs customarily borne by the seller in commercial real estate transactions should be deducted from the gross fair market value of the Foreclosed Property InterestMortgaged Property, including, without limitation, brokerage commissions, title insurance, a survey of the subject propertyMortgaged Property, tax prorations, attorneys’ ' fees, and marketing costs; (iv) the gross fair market value of the Foreclosed Mortgaged Property Interest shall be further discounted to account for any estimated holding costs associated with maintaining it the Mortgaged Property pending sale, including, without limitation, utilities expenses, property management fees, taxes and assessments (to the extent not accounted for in (iii) above), and other maintenance, operational and ownership expenses; and (v) any expert opinion testimony given or considered in connection with a determination of the fair market value of the Foreclosed Mortgaged Property Interest must be given by persons Persons having at least five (5) years experience in appraising property and interests therein similar to the subject Mortgaged Property and the Foreclosed Property Interest and who have conducted and prepared a complete written appraisal of the subject Mortgaged Property and the Foreclosed Property Interest each taking into consideration the factors set forth above.

Alternative to Waiver. Alternatively, in the event the waiver --------------------- provided for in subsection (a) above is determined by a court of competent jurisdiction to be unenforceable, the following shall be the basis for the finder of fact’s 's determination of the fair market value of the Foreclosed Property as of the date of the foreclosure sale in proceedings governed by Sections 51.003, 51.004 and 51.005 of the Deficiency Statute: Texas Property Code (as amended from time to time): (i) the subject property Property shall be valued in an “"as is” " condition as of the date of the foreclosure sale, without any assumption or expectation that it the Property will be repaired or improved in any manner before a resale of the Property after foreclosure; (ii) the valuation shall be based upon an assumption that the foreclosure purchaser desires a resale of the Foreclosed Property Interest for cash promptly (but no later than twelve ([12) ] months) following the foreclosure sale; (iii) all reasonable closing costs customarily borne by the seller in commercial real estate transactions should be deducted from the gross fair market value of the Foreclosed Property InterestProperty, including, without limitation, brokerage commissions, title insurance, a survey of the subject propertyProperty, tax prorations, attorneys’ ' fees, and marketing costs; (iv) the gross fair market value of the Foreclosed Property Interest shall be further discounted to account for any estimated holding costs associated with maintaining it the Property pending sale, including, without limitation, utilities expenses, property management fees, taxes and assessments (to the extent not accounted for in (iii) above), and other maintenance, operational and ownership expenses; and (v) any expert opinion testimony given or considered in connection with a determination of the fair market value of the Foreclosed Property Interest must be given by persons having at least five (5) years experience in appraising property and interests therein similar to the subject Property and the Foreclosed Property Interest and who have conducted and prepared a complete written appraisal of the subject Property and the Foreclosed Property Interest each taking into consideration the factors set forth above.

Alternative to Waiver. Alternatively, in the event the waiver provided for in subsection (a) above is determined by a court of competent jurisdiction to be unenforceable, the following shall be the basis for the finder of fact’s determination of the fair market value of the Foreclosed Property as of the date of the foreclosure sale in proceedings governed by the Deficiency Statute: (i) the subject property shall be valued in an “as is” condition as of the date of the foreclosure sale, without any assumption or expectation that it will be repaired or improved in any manner before a resale after foreclosure; (ii) the valuation shall be based upon an assumption that the foreclosure purchaser desires a resale of the Foreclosed Property Interest for cash promptly (but no later than twelve (12) months) following the foreclosure sale; (iii) all reasonable closing costs customarily borne by the seller in commercial real estate transactions should be deducted from the gross fair market value of the Foreclosed Property Interest, including, without limitation, brokerage commissions, title insurance, a survey of the subject property, tax prorations, attorneys’ fees, and marketing costs; (iv) the gross fair market value of the Foreclosed Property Interest shall be further discounted to account for any estimated holding costs associated with maintaining it pending sale, including, without limitation, utilities expenses, property management fees, taxes and assessments (to the extent not accounted for in (iii) above), and other maintenance, operational and ownership expenses; and (v) any expert opinion testimony given or considered in connection with a determination of the fair market value of the Foreclosed Property Interest must be given by persons having at least five (5) years experience in appraising property and interests therein similar to the subject Property and the Foreclosed Property Interest and who have conducted and prepared a complete written appraisal of the subject Property and the Foreclosed Property Interest interest each taking into consideration the factors set forth above.

Alternative to Waiver. Alternatively, in the event the waiver provided for in subsection (ae)(i) immediately above is determined by a court of competent jurisdiction to be unenforceable, the following shall be the basis for the finder of fact’s determination of the fair market value of the Foreclosed Property as of the date of the foreclosure sale in proceedings governed by Sections 51.003, 51.004 and 51.005 of the Deficiency Statute: Texas Property Code (ias amended from time to time): (1) the subject property Property shall be valued in an “as is” condition as of the date of the foreclosure sale, without any assumption or expectation that it the Property will be repaired or improved in any manner before a resale of the Property after foreclosure; (ii2) the valuation shall be based upon an assumption that the foreclosure purchaser desires a resale of the Foreclosed Property Interest for cash promptly (but no later than twelve nine (129) months) following the foreclosure sale; (iii3) all reasonable closing costs customarily borne by the seller in commercial real estate transactions should be deducted from the gross fair market value of the Foreclosed Property InterestProperty, including, without limitation, brokerage commissions, title insurance, a survey of the subject propertyProperty, tax prorations, attorneys’ fees, and marketing costs; (iv4) the gross fair market value of the Foreclosed Property Interest shall be further discounted to account for any estimated holding costs associated with maintaining it the Property pending sale, including, without limitation, utilities expenses, property management fees, taxes and assessments (to the extent not accounted for in (iii3) above), and other maintenance, operational and ownership expenses; and (v5) any expert opinion testimony given or considered in connection with a determination of the fair market value of the Foreclosed Property Interest must be given by persons Persons having at least five (5) years years’ experience in appraising property and interests therein similar to the subject Property and the Foreclosed Property Interest and who have conducted and prepared a complete written appraisal of the subject Property and the Foreclosed Property Interest each taking into consideration the factors set forth above.

Alternative to Waiver. Alternatively, in the event the waiver provided for in subsection (a) above is determined by a court of competent jurisdiction to be unenforceable, the following shall be the basis for the finder of fact’s 's determination of the fair market value of the Foreclosed Property as of the date of the foreclosure sale in proceedings governed by Sections 51.003, 51.004 and 51.005 of the Deficiency Statute: Property Code (as amended from time to time): (i) the subject property Property shall be valued in an “"as is” " condition as of the date of the foreclosure sale, without any assumption or expectation that it the Property will be repaired or improved in any manner before a resale of the Property after foreclosure; (ii) the valuation shall be based upon an assumption that the foreclosure purchaser desires a resale of the Foreclosed Property Interest for cash promptly (but no later than twelve ([12) ] months) following the foreclosure sale; (iii) all reasonable closing costs customarily borne by the seller in commercial real estate transactions should be deducted from the gross fair market value of the Foreclosed Property InterestProperty, including, without limitation, brokerage commissions, title insurance, a survey of the subject propertyProperty, tax prorations, attorneys’ ' fees, and marketing costs; (iv) the gross fair market value of the Foreclosed Property Interest shall be further discounted to account for any estimated holding costs associated with maintaining it the Property pending sale, including, without limitation, utilities expenses, property management fees, taxes and assessments (to the extent not accounted for in (iii) above), and other maintenance, operational and ownership expenses; and (v) any expert opinion testimony given or considered in connection with a determination of the fair market value of the Foreclosed Property Interest must be given by persons having at least five (5) years experience in appraising property and interests therein similar to the subject Property and the Foreclosed Property Interest and who have conducted and prepared a complete written appraisal of the subject Property and the Foreclosed Property Interest each taking into consideration the factors set forth above.

Alternative to Waiver. Alternatively, in the event the waiver provided for in subsection (aSubsection 6.10(a) above is either not permitted by applicable law or determined by a court of competent jurisdiction to be unenforceable, the following shall be the basis for the finder of fact’s 's determination of the fair market value of the Foreclosed Property as of the date of the foreclosure sale in proceedings governed by the Deficiency Statutesale: (i) the subject property Property shall be valued in an “"as is” " condition as of the date of the foreclosure sale, without any assumption or expectation that it the Property will be repaired or improved in any manner before a resale of the Property after foreclosure; (ii) the valuation shall be based upon an assumption that the foreclosure purchaser desires a resale of the Foreclosed Property Interest for cash promptly (but no later than twelve (12) months) following the foreclosure sale; (iii) all reasonable closing costs customarily borne by the seller in commercial real estate transactions should be deducted from the gross fair market value of the Foreclosed Property InterestProperty, including, without limitation, brokerage commissions, title insurance, a survey of the subject propertyProperty, tax prorations, attorneys’ ' fees, and marketing costs; (iv) the gross fair market value of the Foreclosed Property Interest shall be further discounted to account for any estimated holding costs associated with maintaining it the Property pending sale, including, without limitation, utilities expenses, property management fees, taxes and assessments (to the extent not accounted for in Clause (iii) above), and other maintenance, operational and ownership expenses; and (v) any expert opinion testimony given or considered in connection with a determination of the fair market value of the Foreclosed Property Interest must be given by persons having at least five (5) years years’ experience in appraising property and interests therein similar to the subject Property and the Foreclosed Property Interest and who have conducted and prepared a complete written appraisal of the subject Property and the Foreclosed Property Interest each taking into consideration the factors set forth above.