Assignment of Construction Contract. As additional security for the payment of the Loan, Borrower hereby collaterally transfers and assigns to Lender all of Borrower’s rights and interest, but not its obligations, in, under and to each Construction Contract upon the following terms and conditions: (a) Borrower represents and warrants that the copy of each Construction Contract Borrower has furnished or will furnish to Lender is or will be (as applicable) a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s interest therein is not subject to any claim, setoff or encumbrance. (b) Neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations under any Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder, Borrower hereby agreeing to perform all of its obligations under each Construction Contract. BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSS, COST, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES) RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORM. (c) Following any required notice and opportunity to cure, Lender shall have the right at any time thereafter (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any Construction Contract or to protect the rights of Borrower or Lender thereunder. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALID, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDER, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSS, COST, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDER’S NEGLIGENCE OR ALLEGED NEGLIGENCE, BUT NOT ANY LIABILITY ARISING FROM LENDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. (d) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s attorney-in-fact effective upon the occurrence of an Event of Default, in Borrower’s or Lender’s name, to enforce all rights of Borrower under each Construction Contract. Such appointment is coupled with an interest and is therefore irrevocable. (e) Prior to the occurrence of an Event of Default, Borrower shall have the right to exercise its rights as owner under each Construction Contract, provided that Borrower shall not cancel or amend any Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender. (f) This assignment shall inure to the benefit of Lender and its successors and assigns, any purchaser upon foreclosure of the Deed of Trust, any receiver in possession of the Mortgaged Property and any corporation affiliated with Lender which assumes Lender’s rights and obligations under this Agreement.
Appears in 3 contracts
Samples: Construction Loan Agreement (Stratus Properties Inc), Construction Loan Agreement, Construction Loan Agreement (Stratus Properties Inc)
Assignment of Construction Contract. As additional security for the payment of the Construction Loan, Borrower hereby collaterally transfers and assigns to Lender TMCC all of Borrower’s rights and interest, but not its obligations, in, under under, and to each the Construction Contract Contract, upon the following terms and conditions:
(a) Borrower represents and warrants that the copy of each any Construction Contract Borrower it has furnished or will furnish to Lender TMCC is or will be (as applicable) a true and complete copy thereof, including all amendments thereto, if any, thereof and that Borrower’s interest therein is not subject to any claim, setoff setoff, or encumbrance.
(b) Neither this assignment nor any action by Lender TMCC shall constitute an assumption by Lender TMCC of any obligations obligation under any the Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder, . Borrower hereby agreeing agrees to perform all of its obligations under each the Construction Contract. BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSSBorrower indemnifies and holds TMCC harmless against and from any loss, COSTcost, LIABILITY OR EXPENSE liability, or expense (INCLUDING BUT NOT LIMITED TO ATTORNEYSincluding, but not limited to, attorneys’ FEESfees and expenses) RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORMresulting from any failure of Borrower to so perform.
(c) Following any required notice and opportunity to cure, Lender TMCC shall have the right at any time thereafter (but shall have no obligation) ), to take in its name or in the name of Borrower Borrower, such action as Lender TMCC may at any time determine to be necessary or advisable to cure any default under any the Construction Contract or to protect the rights of Borrower or Lender TMCC thereunder. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALIDTMCC shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDERand Borrower agrees to hold TMCC free and harmless against and from any loss, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSScost, COSTliability or expense (including, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYSbut not limited to, attorneys’ FEESfees and expenses) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDER’S NEGLIGENCE OR ALLEGED NEGLIGENCE, BUT NOT ANY LIABILITY ARISING FROM LENDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCTincurred in connection with any such action.
(d) Borrower hereby irrevocably constitutes and appoints Lender TMCC as Borrower’s attorney-in-fact effective fact, in Borrower’s name or in TMCC’s name, upon the occurrence of and during the continuance of an Event of Default, in Borrower’s or Lender’s name, to enforce all rights of Borrower under each the Construction Contract. Such appointment is coupled with an interest and is therefore irrevocable.
(e) Prior to the occurrence of an Event of Default, Borrower shall have the right to exercise its rights as owner Owner under each the Construction Contract, provided that Borrower shall not cancel or amend any the Construction Contract (other than change orders pursuant to Section 4.16) or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of LenderTMCC.
(f) This assignment shall inure to the benefit of Lender and TMCC, its successors and assigns, including any purchaser upon foreclosure of the applicable Deed of Trust, any receiver in possession of the Mortgaged Property Property, and any corporation affiliated with Lender formed by or on behalf of TMCC which assumes LenderTMCC’s rights and obligations under this Loan Agreement.
Appears in 2 contracts
Samples: Master Loan Agreement, Master Loan Agreement (Sonic Automotive Inc)
Assignment of Construction Contract. As additional security for the payment of the Loan, Borrower hereby collaterally transfers and assigns to Lender all of Borrower’s 's rights and interest, but not its obligations, in, under and to each Construction Contract upon the following terms and conditions:
(a) Borrower represents and warrants that the copy of each Construction Contract the Borrower has furnished or will furnish to Lender is or will be (as applicable) a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s 's interest therein is not subject to any claim, setoff or encumbrance.
(b) Neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations under any Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder, Borrower hereby agreeing to perform all of its obligations under each Construction Contract. BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSS, COST, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ ' FEES) RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORM.
(c) Following any required notice and opportunity to cure, Lender shall have the right at any time thereafter (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any Construction Contract or to protect the rights of Borrower or Lender thereunder. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALID, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDER, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSS, COST, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ ' FEES) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDER’S NEGLIGENCE OR ALLEGED NEGLIGENCE, BUT NOT ANY LIABILITY ARISING FROM LENDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(d) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s 's attorney-in-fact effective upon the occurrence of an Event of Default, in Borrower’s 's or Lender’s 's name, to enforce all rights of Borrower under each Construction Contract. Such appointment is coupled with an interest and is therefore irrevocable.
(e) Prior to the occurrence of an Event of Default, Borrower shall have the right to exercise its rights as owner under each Construction Contract, provided that Borrower shall not cancel or amend any Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender.
(f) This assignment shall inure to the benefit of Lender and its successors and assigns, any purchaser upon foreclosure of the Deed of Trust, any receiver in possession of the Mortgaged Property and any corporation affiliated with Lender which assumes Lender’s 's rights and obligations under this Agreement.
Appears in 2 contracts
Samples: Construction Loan Agreement (Stratus Properties Inc), Construction Loan Agreement (Stratus Properties Inc)
Assignment of Construction Contract. As additional security for the payment of the Loan, Borrower hereby collaterally transfers and assigns to Lender all of Borrower’s rights and interest, but not its obligations, in, under under, and to each the Construction Contract with the Contractor, upon the following terms and conditions:
(a) Borrower represents and warrants that the copy of each any Construction Contract Borrower it has furnished or will furnish to Lender is or will be (as applicable) a true and complete copy thereof, including all amendments thereto, if any, thereof and that Borrower’s interest therein is not subject to any claim, setoff setoff, or encumbrance.;
(b) Neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations obligation under any the Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder, Borrower hereby agreeing to perform all of its obligations under each the Construction Contract so long as Contractor is not in default thereunder; provided, however, that regardless of whether Contractor is in default under the Construction Contract. BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSS, COSTBorrower is still obligated to complete the New Improvements according to the Plans and this Loan Agreement Borrower agrees to indemnify and hold Lender harmless against and from any loss, LIABILITY OR EXPENSE cost, liability, or expense (INCLUDING BUT NOT LIMITED TO ATTORNEYSincluding, but not limited to, reasonable attorneys’ FEESfees) RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORM.resulting from any failure of Borrower to so perform;
(c) Following any required notice and opportunity to cureDuring the existence of an Event of Default, Lender shall have the right at any time thereafter (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any the Construction Contract or to protect the rights of Borrower or Lender thereunder. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALIDLender shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDERif such action does not constitute gross negligence or willful misconduct on Lender’s part, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSSand Borrower agrees to hold Lender free and harmless against and from any loss, COSTcost, LIABILITY OR EXPENSE liability or expense (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYSincluding, but not limited to, reasonable attorneys’ FEESfees) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDER’S NEGLIGENCE OR ALLEGED NEGLIGENCE, BUT NOT ANY LIABILITY ARISING FROM LENDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.incurred in connection with any such action;
(d) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s attorney-in-fact effective upon the occurrence of an Event of Defaultfact, in Borrower’s name or in Lender’s name, to enforce all rights of Borrower under each the Construction Contract. Such appointment is coupled with , upon the occurrence and continuance of an interest and is therefore irrevocable.Event of Default;
(e) Prior to the occurrence of an Event of Default, Borrower shall have the right to exercise its rights as owner under each the Construction Contract, provided that Borrower shall not cancel or materially amend any the Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender.Lender which consent will not be unreasonably withheld; and
(f) This assignment shall inure to the benefit of Lender and Lender, its successors and assigns, including any purchaser upon foreclosure of the Deed of TrustMortgage, any receiver in possession of the Mortgaged Property Property, and any corporation affiliated with formed by or on behalf of Lender which assumes Lender’s rights and obligations under this Loan Agreement.
Appears in 2 contracts
Samples: Secured Construction Loan Agreement (Campus Crest Communities, Inc.), Secured Construction Loan Agreement (Campus Crest Communities, Inc.)
Assignment of Construction Contract. As additional security for the payment of the Loan, Borrower hereby collaterally transfers and collaterally assigns to Lender all of Borrower’s rights and interest, but not its obligations, in, under and to each Construction Contract upon the following terms and conditions:
(a) Borrower represents and warrants that the copy of each Construction Contract Borrower has furnished or will furnish to Lender is or will be (as applicable) a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s interest therein is not subject to any claim, setoff or encumbrance.
(b) Neither this collateral assignment nor any action by Lender shall constitute an assumption by Lender of any obligations under any Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder, Borrower hereby agreeing to perform all of its obligations under each Construction Contract. BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSSBorrower agrees to indemnify and hold Lender harmless against and from any loss, COSTcost, LIABILITY OR EXPENSE liability or expense (INCLUDING BUT NOT LIMITED TO ATTORNEYSincluding but not limited to attorneys’ FEESfees) RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORMresulting from any failure of Borrower to so perform.
(c) Following any required notice and opportunity to cureUpon the occurrence of an Event of Default, Lender shall have the right at any time thereafter (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any Construction Contract or to protect the rights of Borrower or Lender thereunder. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALIDLender shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDERand Borrower agrees to indemnify and hold Lender harmless against and from any loss, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSScost, COSTliability or expense (including but not limited to reasonable attorneys’ fees) incurred in connection with any such action, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDER’S NEGLIGENCE OR ALLEGED NEGLIGENCE, BUT NOT ANY LIABILITY ARISING FROM LENDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCTexcept for the willful misconduct of Lender or Lender’s agents or employees.
(d) Upon Event of Default, Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s attorney-in-fact effective upon the occurrence of an Event of Defaultfact, in Borrower’s or Lender’s name, to enforce all rights of Borrower under each Construction Contract. Such appointment is coupled with an interest and is therefore irrevocable.
(e) Prior to the occurrence of an Event of Default, Borrower shall have the right to exercise its rights as owner under each Construction Contract, provided that Borrower shall not cancel or amend any Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender, which consent shall not be unreasonably withheld, delayed or conditioned.
(f) This assignment shall inure to the benefit of Lender and its successors and assigns, any purchaser upon foreclosure of the Deed of Trust, any receiver in possession of the Mortgaged Property and any corporation affiliated with Lender which assumes Lender’s rights and obligations under this Agreement.
Appears in 2 contracts
Samples: Construction Loan Agreement (Global Geophysical Services Inc), Construction Loan Agreement (Global Geophysical Services Inc)
Assignment of Construction Contract. As additional security for the payment of the Loan, Borrower hereby collaterally transfers and assigns to Lender all of Borrower’s rights and interest, but not its obligations, in, under and to each Construction Contract upon the following terms and conditions:
(a) Borrower represents and warrants that the copy of each Construction Contract Borrower has furnished or will furnish to Lender is or will be (as applicable) a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s interest therein is not subject to any claim, setoff or encumbrance.
(b) Neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations under any Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder, Borrower hereby agreeing to perform all of its obligations under each Construction Contract. BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSS, COST, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES) RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORM.
(c) Following any required notice and opportunity to cure, Lender shall have the right at any time thereafter (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any Construction Contract or to protect the rights of Borrower or Lender thereunder. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALID, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDER, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSS, COST, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDER’S NEGLIGENCE OR ALLEGED NEGLIGENCE, BUT NOT ANY LIABILITY ARISING FROM LENDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(d) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s attorney-in-fact attorney‑in‑fact effective upon the occurrence of an Event of Default, in Borrower’s or Lender’s name, to enforce all rights of Borrower under each Construction Contract. Such appointment is coupled with an interest and is therefore irrevocable.
(e) Prior to the occurrence of an Event of Default, Borrower shall have the right to exercise its rights as owner under each Construction Contract, provided that Borrower shall not cancel or amend any Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender.
(f) This assignment shall inure to the benefit of Lender and its successors and assigns, any purchaser upon foreclosure of the Deed of Trust, any receiver in possession of the Mortgaged Property and any corporation affiliated with Lender which assumes Lender’s rights and obligations under this Agreement.
Appears in 1 contract
Samples: Construction Loan Agreement (Stratus Properties Inc)
Assignment of Construction Contract. As Borrower, as additional security for the payment and performance of the Loancovenants, agreements and obligations of Borrower to Bank arising under this Agreement and under all of the Loan Documents, hereby collaterally transfers grants a security interest in, and sells, transfers, assigns and sets over, to Lender Bank, its successors and assigns, all of Borrower’s rights 's title and interestinterest in and to, but not its obligationsand Borrower's rights, inbenefits and privileges under, under and to each Construction Contract upon the following terms and conditions:
(a) Borrower represents and warrants that the copy of each Construction Contract the Borrower has furnished or will furnish to Lender Bank is or will be (as applicable) a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s 's interest therein is not subject to any claim, setoff or encumbrance.
(b) Neither this assignment nor any action by Lender Bank shall constitute an assumption by Lender Bank of any obligations under any Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder, Borrower hereby agreeing to perform all of its obligations under each Construction Contract. BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSSBorrower agrees to indemnify and hold Bank harmless against and from any loss, COSTcost, LIABILITY OR EXPENSE liability or expense (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEESincluding attorneys' fees) RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORMresulting from any failure of Borrower to so perform.
(c) Following any required notice and opportunity to cure, Lender Bank shall have the right at any time thereafter (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender Bank may at any time determine to be reasonably necessary or advisable to cure any default by Borrower under any Construction Contract or to protect the rights of Borrower or Lender Bank thereunder. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALIDBank shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDERand Borrower agrees to indemnify and hold Bank harmless against and from any loss, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSScost, COST, LIABILITY OR EXPENSE liability or expense (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEESincluding reasonable attorneys' fees) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDER’S NEGLIGENCE OR ALLEGED NEGLIGENCE, BUT NOT ANY LIABILITY ARISING FROM LENDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCTincurred in connection with any such action.
(d) Effective automatically upon and at all times during the continuance of an Event of Default, Borrower hereby irrevocably constitutes and appoints Lender Bank as Borrower’s 's attorney-in-fact effective upon the occurrence of an Event of Defaultfact, in Borrower’s 's or Lender’s Bank's name, to enforce all rights of Borrower under each Construction Contract. Such appointment is coupled with an interest and is therefore irrevocable.
(e) Prior to the occurrence of an Event of Default, Borrower shall have the right to exercise its rights as owner under each Construction Contract, provided that Borrower shall not cancel or amend any Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of LenderBank.
(f) This assignment shall inure to the benefit of Lender Bank and its successors and assigns, any purchaser upon foreclosure of the Deed of Trust, any receiver in possession of the Mortgaged Property and any corporation entity affiliated with Lender Bank which assumes Lender’s Bank's rights and obligations under this Agreement.
Appears in 1 contract
Assignment of Construction Contract. As Borrowers, as additional security for the payment and performance of the Loancovenants, Borrower agreements and obligations of Borrowers to Bank arising under this Agreement and under all of the Loan Documents, hereby collaterally transfers grants a security interest in, and sells, transfers, assigns and sets over, to Lender Bank, its successors and assigns, all of Borrower’s rights 's title and interestinterest in and to, but not its obligationsand Borrower's rights, inbenefits and privileges under, under and to each Construction Contract upon the following terms and conditions:
(a) Borrower represents Borrowers represent and warrants warrant that the copy of each Construction Contract Borrower has the Borrowers have furnished or will furnish to Lender Bank is or will be (as applicable) a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s Borrowers’ interest therein is not subject to any claim, setoff or encumbrance.
(b) Neither this assignment nor any action by Lender Bank shall constitute an assumption by Lender Bank of any obligations under any Construction Contract, and Borrower Borrowers shall continue to be liable for all obligations of Borrower Borrowers thereunder, Borrower Borrowers hereby agreeing to perform all of its obligations under each Construction Contract. BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSSBorrowers agree to indemnify and hold Bank harmless against and from any loss, COSTcost, LIABILITY OR EXPENSE liability or expense (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEESincluding attorneys' fees) RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORMresulting from any failure of Borrowers to so perform.
(c) Following any required notice and opportunity to cure, Lender Bank shall have the right at any time thereafter (but shall have no obligation) to take in its name or in the name of Borrower Borrowers such action as Lender Bank may at any time determine to be reasonably necessary or advisable to cure any default by Borrowers under any Construction Contract or to protect the rights of Borrower Borrowers or Lender Bank thereunder. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALIDBank shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDERand Borrowers agree to indemnify and hold Bank harmless against and from any loss, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSScost, COST, LIABILITY OR EXPENSE liability or expense (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEESincluding reasonable attorneys' fees) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDER’S NEGLIGENCE OR ALLEGED NEGLIGENCE, BUT NOT ANY LIABILITY ARISING FROM LENDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCTincurred in connection with any such action.
(d) Borrower hereby irrevocably constitutes Effective automatically upon and appoints Lender as Borrower’s attorney-in-fact effective upon at all times during the occurrence continuance of an Event of Default, Borrowers hereby irrevocably constitutes and appoints Bank as Borrowers’ attorney‑in‑fact, in Borrower’s Borrowers’ or LenderBank’s name, to enforce all rights of Borrower Borrowers under each Construction Contract. Such appointment is coupled with an interest and is therefore irrevocable.
(e) Prior to the occurrence of an Event of Default, Borrower Borrowers shall have the right to exercise its rights as owner under each Construction Contract, provided that Borrower Borrowers shall not cancel or amend any Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of LenderBank.
(f) This assignment shall inure to the benefit of Lender Bank and its successors and assigns, any purchaser upon foreclosure of the Deed of Trust, any receiver in possession of the Mortgaged Property and any corporation entity affiliated with Lender Bank which assumes LenderBank’s rights and obligations under this Agreement.
Appears in 1 contract
Assignment of Construction Contract. As additional security for the payment of the Loan, Borrower hereby collaterally transfers and assigns to Lender all of Borrower’s rights and interest, but not its obligations, in, under and to each Construction Contract upon the following terms and conditions:
(a) Borrower represents and warrants that the copy of each Construction Contract the Borrower has furnished or will furnish to Lender is or will be (as applicable) a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s interest therein is not subject to any claim, setoff or encumbrance.
(b) Neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations under any Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder, Borrower hereby agreeing to perform all of its obligations under each Construction Contract. BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSS, COST, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES) RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORM.
(c) Following any required notice and opportunity to cure, Lender shall have the right at any time thereafter (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any Construction Contract or to protect the rights of Borrower or Lender thereunder. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALID, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDER, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSS, COST, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDER’S NEGLIGENCE OR ALLEGED NEGLIGENCE, BUT NOT ANY LIABILITY ARISING FROM LENDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(d) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s attorney-in-fact attorney‑in‑fact effective upon the occurrence of an Event of Default, in Borrower’s or Lender’s name, to enforce all rights of Borrower under each Construction Contract. Such appointment is coupled with an interest and is therefore irrevocable.
(e) Prior to the occurrence of an Event of Default, Borrower shall have the right to exercise its rights as owner under each Construction Contract, provided that Borrower shall not cancel or amend any Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender.
(f) This assignment shall inure to the benefit of Lender and its successors and assigns, any purchaser upon foreclosure of the Deed of Trust, any receiver in possession of the Mortgaged Property and any corporation affiliated with Lender which assumes Lender’s rights and obligations under this Agreement.
Appears in 1 contract
Samples: Construction Loan Agreement (Stratus Properties Inc)
Assignment of Construction Contract. As Borrower, as additional security for the payment and performance of the Loancovenants, agreements and obligations of Borrower hereby collaterally transfers and assigns to Lender arising under this Agreement and under all of the Loan Documents, hereby grants a security interest in, and sells, transfers, assigns and sets over, to Lender, its successors and assigns, all of Borrower’s rights title and interestinterest in and to, but not its obligationsand Borrower’s rights, inbenefits and privileges under, under any and all Construction Contracts relating to each Construction Contract the Improvements. In furtherance of the foregoing, Borrower hereby agrees that this assignment is made upon the following terms and conditions:
(a) Borrower shall pay and perform all of Borrower’s covenants, agreements and obligations under the Construction Contracts and shall promptly notify Lender in writing of any material default under or termination of any Construction Contract. Borrower hereby covenants and agrees not to (i) materially modify, amend or change any Construction Contract after full execution thereof (except with regard to change orders and extras), (ii) terminate or otherwise cancel any fully executed Construction Contract except in the event of a default thereunder by any party thereto other than Borrower, (iii) take any action or exercise any right or option which would permit any party thereto other than Borrower to terminate or otherwise cancel a Construction Contract, unless the other party thereto is in default thereunder, or (iv) further assign or create any further encumbrance or hypothecation of Borrower’s interest in any of the Construction Contracts, without the prior written consent of Lender, unless required by any Governmental Authority, in which case Borrower shall give Lender prior written notice thereof.
(b) Borrower hereby represents and warrants that the copy of each Construction Contract Contracts for all Mortgaged Property not fully constructed which are Collateral (i) is in full force and effect, (ii) there are no uncured breaches or defaults by either Borrower has furnished or will furnish to Lender is or will be the Contractor thereunder, (as applicableiii) a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s interest therein is are not subject to any claimlien, setoff set-off, pledge, hypothecation or encumbranceother assignment, and (iv) Borrower has the full and unconditional right to collaterally assign same to Lender for the purposes herein contemplated. Further, Borrower agrees to have executed by each Contractor and delivered to Lender a Consent of Contractor, in form and substance acceptable to Lender, at the execution and delivery hereof or within five (5) days after the execution of any new or additional Construction Contract for any Improvements which are to become Collateral hereunder and as a condition precedent to such Improvements becoming Collateral hereunder.
(bc) Upon the occurrence of an Event of Default, Lender may elect, in its sole discretion, to exercise, in the name of Borrower, all of Borrower’s rights, benefits and privileges under each of the Construction Contracts. Lender shall make such election, if at all, by written notice to such contractor or subcontractor, which notice shall contain Lender’s agreement to pay for such contractor’s or subcontractor’s continued performance pursuant to the terms of the applicable Construction Contract. Lender shall not be required to give any notice of any such election to Borrower. Borrower hereby covenants and agrees to pay to Lender promptly upon demand any and all reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees and expenses, incurred by Lender in connection with such an election by Lender to exercise its rights under this assignment. Furthermore, promptly upon demand by Lender, Borrower shall take such actions and execute such documents as may be necessary to facilitate Lender’s exercise of its rights hereunder.
(d) BORROWER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS LENDER AND ITS AFFILIATES FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES, OBLIGATIONS, PENALTIES, CLAIMS, FINES, LOST PROFITS, DEMANDS, LITIGATION, DEFENSES, COSTS, JUDGMENTS, SUITS, PROCEEDINGS, DAMAGES, DISBURSEMENTS OR EXPENSES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND EXPENSES), CONSEQUENTIAL OR OTHERWISE, WHICH MAY AT ANY TIME BE EITHER DIRECTLY OR INDIRECTLY IMPOSED UPON, INCURRED BY OR ASSERTED OR AWARDED AGAINST LENDER OR ANY OF LENDER’S AFFILIATES IN CONNECTION WITH, ARISING FROM OR RELATING TO ANY ACTION OR ACTIONS TAKEN BY LENDER PURSUANT TO THIS SECTION, OTHER THAN ANY LOSS, LIABILITY, DAMAGE, SUIT, CLAIM, EXPENSE, FEE OR COST ARISING SOLELY BY REASON OF LENDER’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OR OMISSIONS. BORROWER’S DUTY AND OBLIGATION TO DEFEND, INDEMNIFY AND HOLD HARMLESS LENDER SHALL SURVIVE THE PAYMENT OF THE INDEBTEDNESS AND THE RELEASE, PARTIAL RELEASE OR FORECLOSURE (OR ACTION IN LIEU OF FORECLOSURE) OF THE LIEN OF THE SECURITY INSTRUMENT, AND THE EXERCISE BY LENDER OF ANY AND ALL REMEDIES SET FORTH HEREIN OR IN THE OTHER LOAN DOCUMENTS.
(e) So long as no Event of Default has occurred, Borrower may continue to receive and exercise all of its rights, benefits and privileges under the Construction Contracts, except as herein restricted or provided otherwise.
(f) Neither this assignment nor any action by or actions on the part of Lender shall constitute an assumption of any of the covenants, agreements or obligations of Borrower by Lender of any obligations under any the Construction Contract, Contracts and Borrower shall continue to be liable for all obligations of Borrower thereundersuch covenants, Borrower hereby agreeing to perform all of its obligations under each Construction Contractagreements or obligations. BORROWER AGREES TO INDEMNIFY SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS LENDER HARMLESS AND ITS AFFILIATES FROM AND AGAINST ANY AND FROM ALL LOSSES, LIABILITIES, OBLIGATIONS, PENALTIES, CLAIMS, FINES, LOST PROFITS, DEMANDS, LITIGATION, DEFENSES, COSTS, JUDGMENTS, SUITS, PROCEEDINGS, DAMAGES, DISBURSEMENTS OR EXPENSES OF ANY LOSSKIND OR NATURE WHATSOEVER (INCLUDING, COSTWITHOUT LIMITATION, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES) RESULTING FEES AND EXPENSES), CONSEQUENTIAL OR OTHERWISE, WHICH MAY AT ANY TIME BE EITHER DIRECTLY OR INDIRECTLY IMPOSED UPON, INCURRED BY OR ASSERTED OR AWARDED AGAINST LENDER OR ANY OF LENDER’S AFFILIATES IN CONNECTION WITH, ARISING FROM OR RELATING TO ANY FAILURE OF BORROWER TO SO PERFORMPERFORM AND OBSERVE ANY OF SUCH OBLIGATIONS, OTHER THAN ANY LOSS, LIABILITY, DAMAGE, SUIT, CLAIM, EXPENSE, FEE OR COST ARISING SOLELY BY REASON OF LENDER’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OR OMISSIONS. BORROWER’S DUTY AND OBLIGATION TO DEFEND, INDEMNIFY AND HOLD HARMLESS LENDER SHALL SURVIVE THE PAYMENT OF THE INDEBTEDNESS AND THE RELEASE, PARTIAL RELEASE OR FORECLOSURE (OR ACTION IN LIEU OF FORECLOSURE) OF THE LIEN OF THE SECURITY INSTRUMENT, AND THE EXERCISE BY LENDER OF ANY AND ALL REMEDIES SET FORTH HEREIN OR IN THE OTHER LOAN DOCUMENTS.
(cg) Following any required notice and opportunity to cure, Lender shall have the right right, at any time thereafter (but shall have no obligation) ), to take in its name or in the name of Borrower or otherwise, such action as Lender may at any time or from time to time reasonably determine to be necessary or advisable to cure any default under any Construction Contract or to protect the rights of Borrower or Lender thereunder. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALID, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDER, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSS, COST, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDER’S NEGLIGENCE OR ALLEGED NEGLIGENCE, BUT NOT ANY LIABILITY ARISING FROM LENDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(d) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s attorney-in-fact effective upon the occurrence assignee of an Event Borrower hereunder. Lender shall incur no liability on account of Defaultany action taken by it or on its behalf in good faith pursuant to the foregoing sentence or otherwise hereunder, whether or not the same shall prove to be improper, inadequate or invalid, in Borrower’s whole or Lender’s name, to enforce all rights of Borrower under each Construction Contract. Such appointment is coupled with an interest and is therefore irrevocablein part.
(e) Prior to the occurrence of an Event of Default, Borrower shall have the right to exercise its rights as owner under each Construction Contract, provided that Borrower shall not cancel or amend any Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender.
(f) This assignment shall inure to the benefit of Lender and its successors and assigns, any purchaser upon foreclosure of the Deed of Trust, any receiver in possession of the Mortgaged Property and any corporation affiliated with Lender which assumes Lender’s rights and obligations under this Agreement.
Appears in 1 contract
Samples: Loan Agreement (LGI Homes, Inc.)
Assignment of Construction Contract. As additional security for the payment of the Loan, Borrower hereby collaterally transfers and assigns to Lender all of Borrower’s rights and interest, but not its obligations, in, under under, and to each Construction Contract the construction contract with the general contractor upon the following terms and conditions:
(a) Borrower represents and warrants that the copy of each Construction Contract Borrower such construction contract it has furnished or will furnish to Lender is or will be (as applicable) a true and complete copy thereof, including all amendments thereto, if any, thereof and that Borrower’s interest therein is not subject to any claim, setoff setoff, or encumbrance.
(b) Neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations under any Construction Contractthe construction contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder, Borrower hereby agreeing to perform all of its obligations under each Construction Contractthe construction contract. BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSSBorrower agrees to indemnify and hold Lender harmless against and from any loss, COSTcost, LIABILITY OR EXPENSE liability, or expense (INCLUDING BUT NOT LIMITED TO ATTORNEYSincluding, but not limited to, reasonable attorneys’ FEESfees) RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORMresulting from any failure of Borrower to so perform.
(c) Following any required notice Upon the occurrence and opportunity to cureduring the continuance of an Event of Default, Lender shall have the right at any time thereafter (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any Construction Contract the construction contract or to protect the rights of Borrower or Lender thereunder. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALIDLender shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDERand Borrower agrees to hold Lender free and harmless against and from any loss, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSScost, COSTliability or expense (including, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYSbut not limited to, reasonable attorneys’ FEESfees) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDER’S NEGLIGENCE OR ALLEGED NEGLIGENCE, BUT NOT ANY LIABILITY ARISING FROM LENDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCTincurred in connection with any such action.
(d) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s attorney-in-fact effective upon the occurrence of an Event of Defaultfact, in Borrower’s name or in Lender’s name, to enforce all rights of Borrower under each Construction Contractthe construction contract during the continuance of an Event of Default. Such appointment The power-of-attorney granted hereby is a power coupled with an interest and is therefore irrevocable.
(e) Prior to the occurrence of an Event of Default, Borrower shall have the right to exercise its rights as owner under each Construction Contractthe construction contract, provided that Borrower shall not cancel or amend any Construction Contract the construction contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender.
(f) This assignment shall inure to the benefit of Lender and Lender, its successors and assigns, including any purchaser upon foreclosure of the Deed of Trust, any receiver in possession of the Mortgaged Property Property, and any corporation affiliated with legal entity formed by or on behalf of Lender which winch assumes Lender’s rights and obligations under this Agreement.
Appears in 1 contract
Samples: Construction Loan Agreement (Campus Crest Communities, Inc.)
Assignment of Construction Contract. As additional security for the payment of the Loan, Borrower hereby collaterally transfers and assigns to Lender all of Borrower’s 's rights and interest, but not its obligations, in, under and to each Construction Contract upon the following terms and conditions:
: (a) a0 Borrower represents and warrants that the copy of each Construction Contract the Borrower has furnished or will furnish to Lender is or will be (as applicable) a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s 's interest therein is not subject to any claim, setoff or encumbrance.
. (b) b0 Neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations under any Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder, Borrower hereby agreeing to perform all of its obligations under each Construction Contract. BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSS, COST, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ ' FEES) RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORM.
. (c) c0 Following any required notice and opportunity to cure, Lender shall have the right at any time thereafter (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any Construction Contract or to protect the rights of Borrower or Lender thereunder. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALID, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDER, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSS, COST, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ ' FEES) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDER’S NEGLIGENCE OR ALLEGED NEGLIGENCE, BUT NOT ANY LIABILITY ARISING FROM LENDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(d) d0 Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s 's attorney-in-fact effective upon the occurrence of an Event of Default, in Borrower’s 's or Lender’s 's name, to enforce all rights of Borrower under each Construction Contract. Such appointment is coupled with an interest and is therefore irrevocable.
. (e) e0 Prior to the occurrence of an Event of Default, Borrower shall have the right to exercise its rights as owner under each Construction Contract, provided that Borrower shall not cancel or amend any Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender.
(f) This assignment shall inure to the benefit of Lender and its successors and assigns, any purchaser upon foreclosure of the Deed of Trust, any receiver in possession of the Mortgaged Property and any corporation affiliated with Lender which assumes Lender’s rights and obligations under this Agreement.
Appears in 1 contract
Samples: Construction Loan Agreement (Stratus Properties Inc)
Assignment of Construction Contract. As additional security for the payment of the Loan, Borrower hereby collaterally transfers and assigns to Lender all of Borrower’s 's rights and interest, but not its obligations, in, under and to each General Construction Contract upon the following terms and conditions::
(a) Borrower represents and warrants that the copy of each General Construction Contract the Borrower has furnished or will furnish to Lender is or will be (as applicable) a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s 's interest therein is not subject to any claim, setoff or encumbrance.
(b) Neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations under any General Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder, Borrower hereby agreeing to perform all of its obligations under each General Construction Contract. BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSSBorrower agrees to indemnify and hold Lender harmless against and from any loss, COSTcost, LIABILITY OR EXPENSE liability or expense (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEESincluding but not limited to attorneys' fees) RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORMresulting from any failure of Borrower to so perform.
(c) Following any required notice and opportunity to cure, Lender shall have the right at any time thereafter (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any General Construction Contract or to protect the rights of Borrower or Lender thereunder. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALIDLender shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDERand Borrower agrees to indemnify and hold Lender harmless against and from any loss, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSScost, COST, LIABILITY OR EXPENSE liability or expense (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEESincluding but not limited to reasonable attorneys' fees) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDER’S NEGLIGENCE OR ALLEGED NEGLIGENCE, BUT NOT ANY LIABILITY ARISING FROM LENDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCTincurred in connection with any such action.
(d) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s 's attorney-in-fact effective upon the occurrence of an Event of Defaultfact, in Borrower’s 's or Lender’s 's name, to enforce all rights of Borrower under each General Construction Contract. Such appointment is coupled with an interest and is therefore irrevocable.
(e) Prior to the occurrence of an Event of Default, Borrower shall have the right to exercise its rights as owner under each General Construction Contract, provided that Borrower shall not cancel or amend any General Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender.
(f) This assignment shall inure to the benefit of Lender and its successors and assigns, any purchaser upon foreclosure of the Deed of TrustMortgage, any receiver in possession of the Mortgaged Property and any corporation affiliated with Lender which assumes Lender’s 's rights and obligations under this Agreement.
Appears in 1 contract
Samples: Land Acquisition and Development Loan Agreement (Transeastern Properties Inc)
Assignment of Construction Contract. As additional security for the payment of the Loan, Borrower hereby collaterally transfers and assigns to Lender all of Borrower’s rights and interest, but not its obligations, in, under and to each Construction Contract upon the following terms and conditions:
(a) Borrower represents and warrants that the copy of each Construction Contract Borrower has furnished or will furnish to Lender is or will be (as applicable) a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s interest therein is not subject to any claim, setoff or encumbrance.
(b) Neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations under any Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder, Borrower hereby agreeing to perform all of its obligations under each Construction Contract. BORROWER XXXXXXXX AGREES TO INDEMNIFY AND HOLD LENDER XXXXXX HARMLESS AGAINST AND FROM ANY LOSS, COST, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES) RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORM.CONSTRUCTION LOAN AGREEMENT – Page 35
(c) Following any required notice and opportunity to cure, Lender shall have the right at any time thereafter (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any Construction Contract or to protect the rights of Borrower or Lender thereunder. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALID, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDER, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSS, COST, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDERXXXXXX’S NEGLIGENCE OR ALLEGED NEGLIGENCE, BUT NOT ANY LIABILITY ARISING FROM LENDERXXXXXX’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(d) Borrower hereby irrevocably constitutes and appoints Lender Xxxxxx as BorrowerXxxxxxxx’s attorney-in-fact effective upon the occurrence of an Event of Default, in Borrower’s or LenderXxxxxx’s name, to enforce all rights of Borrower under each Construction Contract. Such appointment is coupled with an interest and is therefore irrevocable.
(e) Prior to the occurrence of an Event of Default, Borrower shall have the right to exercise its rights as owner under each Construction Contract, provided that Borrower shall not cancel or amend any Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender.
(f) This assignment shall inure to the benefit of Lender and its successors and assigns, any purchaser upon foreclosure of the Deed of Trust, any receiver in possession of the Mortgaged Property and any corporation affiliated with Lender which assumes Lender’s rights and obligations under this Agreement.
Appears in 1 contract
Samples: Construction Loan Agreement (Stratus Properties Inc)
Assignment of Construction Contract. As additional security for the payment of the Loan, Borrower hereby collaterally grants, transfers and assigns to Lender all of Borrower’s 's rights and interest, but not its obligations, in, under and to each Construction Contract upon the following terms and conditions:
(a) Borrower represents and warrants that the copy of each Construction Contract the Borrower has furnished or will wiLl furnish to Lender is or will wiLI be (as applicable) a true and complete copy thereof, including all aLI amendments thereto, if any, and that Borrower’s 's interest therein is not subject to any claim, setoff or setoffor encumbrance.
(b) Neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations under any Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder, Borrower hereby agreeing to perform all aLI of its obligations under each Construction Contract. BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSSBorrower agrees to indemnify and hold Lender harmless against and from any loss, COSTcost, LIABILITY OR EXPENSE liability or expense (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEESincluding but not limited to attorneys' fees) RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORMresulting from any failure of Borrower to so perform.
(c) Following any required notice and opportunity to cure, Lender shall have the right at any time thereafter (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any Construction Contract or to protect the rights of Borrower or Lender thereunder. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALIDLender shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDERand Borrower agrees to indemnify and hold Lender harmless against and from any loss, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSScost, COSTliability or expense (including but not limited to reasonable attorneys' fees) incurred in connection with any such action, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDER’S NEGLIGENCE OR ALLEGED NEGLIGENCEexcepting only liability arising solely from the gross negligence, BUT NOT ANY LIABILITY ARISING FROM LENDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCTwillful misconduct or fraud of Lender or Lender's officers, directors, employees or duly authorized agents.
(d) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s attorney-in-fact effective upon the occurrence of an Event of Default, in Borrower’s or Lender’s name, to enforce all rights of Borrower under each Construction Contract. Such appointment is coupled with an interest and is therefore irrevocable.
(e) Prior to the occurrence of an Event of DefaultDefault and aBcer any Event of Default is cured to the satisfaction of Lender, Borrower shall have the right to exercise its rights as owner under each Construction Contract, provided that Borrower shall shaLI not cancel or amend any Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender. Subject to the limitations of the preceding sentence, and subject to the approval and consent rights otherwise provided in the Loan Documents, unless an Event of Default has occurred and is continuing, Lender shall not exercise the rights of Borrower under the Construction Contract.
(e) Borrower hereby irrevocably constitutes and appoints Lender as Borrower's attorney-in-fact, in Borrower's or Lender's name, to enforce all rights of Borrower under each Construction Contract, to the extent authorized by this Agreement. Such appointment is coupled with an interest and is therefore irrevocable.
(f) This assignment shall inure to the benefit of Lender and its successors and assigns, any purchaser upon foreclosure of the Deed of TrustMortgage, any receiver in possession of the Mortgaged Property and any corporation affiliated with Lender which assumes Lender’s 's rights and obligations under this Agreement.
Appears in 1 contract
Samples: Loan Agreement (Emeritus Corp\wa\)
Assignment of Construction Contract. As additional security for the payment of the Loan, Borrower hereby collaterally transfers and assigns to Lender all of Borrower’s 's rights and interest, but not its obligations, in, under and to each Construction Contract upon the following terms and conditions:
(a) Borrower represents and warrants that the copy of each Construction Contract the Borrower has furnished or will furnish to Lender is or will be (as applicable) a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s 's interest therein is not subject to any claim, setoff or encumbrance.
(b) Neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations under any Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder, Borrower hereby agreeing to perform all of its obligations under each Construction Contract. BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSS, COST, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ ' FEES) RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORM.
(c) Following any required notice and opportunity to cure, Lender shall have the right at any time thereafter (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any Construction Contract or to protect the rights of Borrower or Lender thereunder. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALID, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDER, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSS, COST, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ ' FEES) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDER’S 'S NEGLIGENCE OR ALLEGED NEGLIGENCE, BUT NOT ANY LIABILITY ARISING FROM LENDER’S 'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(d) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s attorney-in-fact 's attorney‑in‑fact effective upon the occurrence of an Event of Default, in Borrower’s 's or Lender’s 's name, to enforce all rights of Borrower under each Construction Contract. Such appointment is coupled with an interest and is therefore irrevocable.
(e) Prior to the occurrence of an Event of Default, Borrower shall have the right to exercise its rights as owner under each Construction Contract, provided that Borrower shall not cancel or amend any Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender.
(f) This assignment shall inure to the benefit of Lender and its successors and assigns, any purchaser upon foreclosure of the Deed of Trust, any receiver in possession of the Mortgaged Property and any corporation affiliated with Lender which assumes Lender’s 's rights and obligations under this Agreement.
Appears in 1 contract
Samples: Construction Loan Agreement (Stratus Properties Inc)
Assignment of Construction Contract. As additional security for the ----------------------------------- payment of the Loan, Borrower hereby collaterally transfers and assigns to Lender all of Borrower’s 's rights and interest, but not its obligations, in, under and to each Construction Contract upon the following terms and conditions:
(a) Borrower represents and warrants that the copy of each Construction Contract Borrower has furnished or it will furnish to Lender is or will be (as applicable) a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s 's interest therein is not subject to any claim, setoff or encumbrance.
(b) Neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations under any Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder, Borrower hereby agreeing to perform all of its obligations under each Construction Contract. BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSSBorrower agrees to indemnify and hold Lender harmless against and from any loss, COSTcost, LIABILITY OR EXPENSE liability or expense (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEESincluding but not limited to attorneys' fees) RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORMresulting from any failure of Borrower to so perform.
(c) Following any required notice and opportunity to cure, Lender shall have the right at any time thereafter (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any Construction Contract or to protect the rights of Borrower or Lender thereunder. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALIDLender shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDERand Borrower agrees to indemnify and hold Lender harmless against and from any loss, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSScost, COST, LIABILITY OR EXPENSE liability or expense (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEESincluding but not limited to reasonable attorneys' fees) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDER’S NEGLIGENCE OR ALLEGED NEGLIGENCE, BUT NOT ANY LIABILITY ARISING FROM LENDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCTincurred in connection with any such action.
(d) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s 's attorney-in-fact effective upon the occurrence of an Event of Defaultfact, in Borrower’s 's or Lender’s 's name, to enforce all rights of Borrower under each Construction Contract. Such appointment is coupled with an interest and is therefore irrevocable.
(e) Prior to the occurrence of an Event event of Defaultdefault, Borrower shall have the right to exercise its rights as owner under each Construction Contract, provided that that, except as otherwise provided herein, Borrower shall not cancel or amend any Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender.
(f) This assignment shall inure to the benefit of Lender and its successors and assigns, any purchaser upon foreclosure of the Deed of Trust, any receiver in possession of the Mortgaged Property Project and any corporation affiliated with formed by or on behalf of Lender which assumes Lender’s 's rights and obligations under this Agreement.
Appears in 1 contract
Assignment of Construction Contract. As additional security for the payment of the Loan, Borrower hereby collaterally transfers and assigns to Lender all of Borrower’s 's rights and interest, but not its obligations, in, under under, and to each any Construction Contract Contract, whether now existing or hereafter entered into, upon the following terms and conditions:
(a) Borrower represents and warrants that the copy of each Construction Contract Borrower it has furnished or will furnish to Lender is or will be (as applicable) a true and complete copy thereof, including all amendments thereto, if any, thereof and that Borrower’s 's interest therein is not subject to any claim, setoff setoff, or encumbrance.
(b) Neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations under any Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder, Borrower hereby agreeing to perform all of its obligations under each any Construction Contract. BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSSBorrower indemnifies and holds Lender harmless against and from any loss, COSTcost, LIABILITY OR EXPENSE liability, or expense (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEESincluding, but not limited to, reasonable attorneys' fees) RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORMresulting from any failure of Borrower to so perform.
(c) Following any required notice and opportunity to cure, Lender shall have the right at any time thereafter (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any Construction Contract or to protect the rights of Borrower or Lender thereunder. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALIDLender shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDERand Borrower agrees to hold Lender free and harmless against and from any loss, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSScost, COSTliability or expense (including, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEESbut not limited to, reasonable attorneys' fees) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDER’S NEGLIGENCE OR ALLEGED NEGLIGENCE, BUT NOT ANY LIABILITY ARISING FROM LENDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCTincurred in connection with any such action.
(d) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s 's attorney-in-fact effective upon the occurrence of an Event of Defaultfact, in Borrower’s 's name or in Lender’s 's name, to enforce all rights of Borrower under each any Construction Contract. Such appointment is coupled with an interest and is therefore irrevocable.
(e) Prior to the occurrence of an Event of Default, Borrower shall have the right to may exercise its rights as owner Owner under each any Construction Contract, provided that Borrower shall not cancel or amend any Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender.
(f) This assignment shall inure to the benefit of Lender and Lender, its successors and assigns, including any purchaser upon foreclosure of the Deed of TrustMortgage, any receiver in possession of the Mortgaged Property Property, and any corporation affiliated with formed by or on behalf of Lender which assumes Lender’s 's rights and obligations under this Loan Agreement.
Appears in 1 contract
Samples: Acquisition and Development Loan Agreement (Oriole Homes Corp)
Assignment of Construction Contract. As additional security for the payment of the Loan, Borrower hereby collaterally transfers and assigns to Lender all of Borrower’s rights and interest, but not its obligations, in, under under, and to each the Construction Contract Contract, upon the following terms and conditions:
(a) Borrower represents and warrants that the copy of each any Construction Contract Borrower it has furnished or will furnish to Lender is or will be (as applicable) a true and complete copy thereof, including all amendments thereto, if any, thereof and that Borrower’s interest therein is not subject to any claim, setoff setoff, or encumbrance.;
(b) Neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations obligation under any the Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder, Borrower hereby agreeing to perform all of its obligations under each the Construction Contract so long as Contractor is not in default thereunder; provided, however, that regardless of whether Contractor is in default under the Construction Contract, Borrower is still obligated to complete the New Improvements according to the Plans and this Loan Agreement. BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSSBorrower agrees to indemnify and hold Lender harmless against and from any loss, COSTcost, LIABILITY OR EXPENSE liability, or expense (INCLUDING BUT NOT LIMITED TO ATTORNEYSincluding, but not limited to, reasonable attorneys’ FEESfees) RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORM.resulting from any failure of Borrower to so perform;
(c) Following If Borrower fails to promptly take any required notice and opportunity action pertaining to curethe Premises after reasonably requested by Lender, Lender shall have the right at any time thereafter (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any the Construction Contract or to protect the rights of Borrower or Lender thereunder. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALIDLender shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDERif such action does not constitute gross negligence or willful misconduct on Lender’s part, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSSand Borrower agrees to hold Lender free and harmless against and from any loss, COSTcost, LIABILITY OR EXPENSE liability or expense (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYSincluding, but not limited to, reasonable attorneys’ FEESfees) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDER’S NEGLIGENCE OR ALLEGED NEGLIGENCE, BUT NOT ANY LIABILITY ARISING FROM LENDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.incurred in connection with any such action;
(d) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s attorney-in-fact effective upon the occurrence of an Event of Defaultfact, in Borrower’s name or in Lender’s name, to enforce all rights of Borrower under each the Construction Contract. Such appointment is coupled with an interest and is therefore irrevocable., upon Borrower’s failure to promptly enforce the same;
(e) Prior to the occurrence of an Event of Default, Borrower shall have the right to exercise its rights as owner under each the Construction Contract, provided that that, except in all cases as permitted by Section 4.02 hereof, Borrower shall not cancel or amend any the Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender.Lender which consent will not be unreasonably withheld, delayed or conditioned; and
(f) This assignment shall inure to the benefit of Lender and Lender, its successors and assigns, including any purchaser upon foreclosure of the Deed of TrustMortgage, any receiver in possession of the Mortgaged Property Premises, and any corporation affiliated with formed by or on behalf of Lender which assumes Lender’s rights and obligations under this Loan Agreement.
Appears in 1 contract
Samples: Secured Construction Loan Agreement (Lakes Entertainment Inc)
Assignment of Construction Contract. As Borrower, as additional security for the payment and performance of the Loancovenants, agreements and obligations of Borrower hereby collaterally transfers and assigns to Lender arising under this Agreement and under all of the Loan Documents, hereby grants a security interest in, and sells, transfers, assigns and sets over, to Lender, its successors and assigns, all of Borrower’s rights 's title and interestinterest in and to, but not its obligationsand Borrower's rights, inbenefits and privileges under, under and to each Construction Contract upon the following terms and conditions:
(a) Borrower represents and warrants that the copy of each Construction Contract the Borrower has furnished or will furnish to Lender is or will be (as applicable) a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s 's interest therein is not subject to any claim, setoff or encumbrance.
(b) Neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations under any Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder, Borrower hereby agreeing to perform all of its obligations under each Construction Contract. BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSSBorrower agrees to indemnify and hold Lender harmless against and from any loss, COSTcost, LIABILITY OR EXPENSE liability or expense (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEESincluding attorneys' fees) RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORMresulting from any failure of Borrower to so perform.
(c) Following any required notice and opportunity to cure, Lender shall have the right at any time thereafter (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be reasonably necessary or advisable to cure any default by Borrower under any Construction Contract or to protect the rights of Borrower or Lender thereunder. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALIDLender shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDERand Borrower agrees to indemnify and hold Lender harmless against and from any loss, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSScost, COST, LIABILITY OR EXPENSE liability or expense (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEESincluding reasonable attorneys' fees) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDER’S NEGLIGENCE OR ALLEGED NEGLIGENCE, BUT NOT ANY LIABILITY ARISING FROM LENDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCTincurred in connection with any such action.
(d) Effective automatically upon and at all times during the continuance of an Event of Default, Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s 's attorney-in-fact effective upon the occurrence of an Event of Defaultfact, in Borrower’s 's or Lender’s 's name, to enforce all rights of Borrower under each Construction Contract. Such appointment is coupled with an interest and is therefore irrevocable.
(e) Prior to the occurrence of an Event of Default, Borrower shall have the right to exercise its rights as owner under each Construction Contract, provided that Borrower shall not cancel or amend any Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender.
(f) This assignment shall inure to the benefit of Lender and its successors and assigns, any purchaser upon foreclosure of the Deed of Trust, any receiver in possession of the Mortgaged Property and any corporation entity affiliated with Lender which assumes Lender’s 's rights and obligations under this Agreement.
Appears in 1 contract
Assignment of Construction Contract. As additional security for the payment of the LoanIndebtedness, Borrower hereby collaterally transfers and assigns to Lender all of Borrower’s rights and interest, but not its obligations, in, under under, and to each Construction Contract upon on the following terms and conditions:
(a) Borrower represents and warrants that the copy of each Construction Contract Borrower has furnished or will shall furnish to Lender is or will shall be (as applicable) a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s interest therein is not subject to any claim, setoff setoff, or encumbrance.;
(b) Neither neither this assignment nor any action by Lender shall constitute constitutes an assumption by Lender of any obligations under any Construction Contract, and . Borrower shall continue to be liable for all obligations of Borrower thereunderunder any Construction Contract. Borrower shall perform all of its obligations under each Construction Contract. Borrower agrees to indemnify, defend, and hold Lender harmless from any loss, cost, liability, or expense (including, without limitation, attorney’s fees) resulting from any failure of Borrower hereby agreeing to perform all of its obligations under each Construction Contract. BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSS, COST, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES) RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORM.;
(c) Following any required notice and opportunity to cureduring the continuance of an Event of Default, Lender shall have the right at any time thereafter (but shall have no obligation) to may take in its name or in the name of Borrower such any action as that Lender may at any time determine determines to be necessary or advisable to cure any default under any Construction Contract or to protect the rights of Borrower or Lender thereunderunder any Construction Contract. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALIDLender shall incur no liability if any action so taken by it or in its behalf is inadequate or invalid. Borrower shall indemnify and hold Lender harmless against and from any loss, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDERcost, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSSliability or expense (including, COSTbut not limited to, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEESreasonable attorney’s fees) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDER’S NEGLIGENCE OR ALLEGED NEGLIGENCE, BUT NOT ANY LIABILITY ARISING FROM LENDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.incurred in connection with such action;
(d) during the continuance of an Event of Default, Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s attorney-in-fact effective upon the occurrence of an Event of Defaultfact, in Borrower’s or Lender’s name, to enforce all rights of Borrower under each Construction Contract. Such That appointment is coupled with an interest and is therefore irrevocable.;
(e) Prior to at all times other than during the occurrence continuance of an Event of Default, Borrower shall have the right to may exercise its rights as owner under each Construction Contract; provided, provided however, that Borrower shall not cancel or amend any Construction Contract Contract, except as otherwise permitted by this Agreement, or do or suffer to be done any act which that would impair the security constituted by this assignment without the prior written consent of Lender.; and
(f) This this assignment shall inure to the benefit of Lender and its successors and Lender, Lender’s successors, Lender’s assigns, any purchaser upon on foreclosure of the Deed of Trust, any receiver in possession of the Mortgaged Property Property, and any corporation affiliated entity Affiliated with Lender which that assumes Lender’s rights and obligations under this Agreement.
Appears in 1 contract
Samples: Construction Loan Agreement (Global Growth Trust, Inc.)
Assignment of Construction Contract. As additional security for the payment of the Loan, Borrower hereby collaterally transfers and assigns to Lender all of Borrower’s rights and interest, but not its obligations, in, under under, and to each Construction Contract the construction contract with the general contractor upon the following terms and conditions:
(a) Borrower represents and warrants that the copy of each Construction Contract Borrower such construction contract it has furnished or will furnish to Lender is or will be (as applicable) a true and complete copy thereof, including all amendments thereto, if any, thereof and that Borrower’s interest therein is not subject to any claim, setoff setoff, or encumbrance.
(b) Neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations under any Construction Contractthe construction contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder, Borrower hereby agreeing to perform all of its obligations under each Construction Contractthe construction contract. BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSSBorrower agrees to indemnify and hold Lender harmless against and from any loss, COSTcost, LIABILITY OR EXPENSE liability, or expense (INCLUDING BUT NOT LIMITED TO ATTORNEYSincluding, but not limited to, reasonable attorneys’ FEESfees) RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORMresulting from any failure of Borrower to so perform.
(c) Following any required notice Upon the occurrence and opportunity to cureduring the continuance of an Event of Default, Lender shall have the right at any time thereafter (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any Construction Contract the construction contract or to protect the rights of Borrower or Lender thereunder. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALIDLender shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDERand Borrower agrees to hold Lender free and harmless against and from any loss, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSScost, COSTliability or expense (including, LIABILITY OR EXPENSE (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYSbut not limited to, reasonable attorneys’ FEESfees) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDER’S NEGLIGENCE OR ALLEGED NEGLIGENCE, BUT NOT ANY LIABILITY ARISING FROM LENDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCTincurred in connection with any such action.
(d) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s attorney-in-fact effective upon the occurrence of an Event of Defaultfact, in Borrower’s name or in Lender’s name, to enforce all rights of Borrower under each Construction Contractthe construction contract during the continuance of an Event of Default. Such appointment The power-of-attorney granted hereby is a power coupled with an interest and is therefore irrevocable.
(e) Prior to the occurrence of an Event of Default, Borrower shall have the right to exercise its rights as owner under each Construction Contractthe construction contract, provided that Borrower shall not cancel or amend any Construction Contract the construction contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender.
(f) This assignment shall inure to the benefit of Lender and Lender, its successors and assigns, including any purchaser upon foreclosure of the Deed of Trust, any receiver in possession of the Mortgaged Property Property, and any corporation affiliated with legal entity formed by or on behalf of Lender which assumes Lender’s rights and obligations under this Agreement.
Appears in 1 contract
Samples: Construction Loan Agreement (Campus Crest Communities, Inc.)
Assignment of Construction Contract. As additional security for the payment of the Loan, Borrower hereby collaterally transfers and assigns to Lender all of Borrower’s rights right, title and interest, but not its obligations, in, under under, and to each Construction Contract the construction contract, upon the following terms and conditions:
(a) Borrower represents and warrants that the copy of each Construction Contract Borrower has furnished or will furnish to Lender is or will be (as applicable) a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s interest therein is not subject to any claim, setoff or encumbrance.
(b) Neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations obligation under any Construction Contractthe construction contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder, Borrower hereby agreeing to perform all of its obligations under each Construction Contractthe construction contract so long as Contractor is not in default thereunder; provided, however, that regardless of whether Contractor is in default under the construction contract, Borrower is still obligated to complete the Improvements according to the Plans and this Loan Agreement. BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSSBorrower agrees to indemnify and hold Lender harmless against and from any loss, COSTcost, LIABILITY OR EXPENSE liability, or expense (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEESincluding, but not limited to, reasonable attorneys fees) RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORM.resulting from any failure of Borrower to so perform;
(cb) Following For so long as an Event of Default has occurred and is continuing, if Borrower fails to promptly take any required notice and opportunity action pertaining to curethe Premises after requested by Lender, Lender shall have the right at any time thereafter (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any Construction Contract the construction contract or to protect the rights of Borrower or Lender thereunder. LENDER SHALL INCUR NO LIABILITY IF ANY ACTION SO TAKEN BY IT OR IN ITS BEHALF SHALL PROVE TO BE INADEQUATE OR INVALIDLender shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LENDERif such action does not constitute negligence or, AND BORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSSwilful misconduct on Lender’s part, COSTand Borrower agrees to hold Lender free and harmless against and from any loss, LIABILITY OR EXPENSE cost, liability or expense (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYSincluding, but not limited to, reasonable attorneys’ FEESfees) INCURRED IN CONNECTION WITH ANY SUCH ACTION. THIS INDEMNITY INCLUDES ANY LIABILITY ASSERTED AGAINST LENDER ON ACCOUNT OF LENDER’S NEGLIGENCE OR ALLEGED NEGLIGENCE, BUT NOT ANY LIABILITY ARISING FROM LENDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.incurred in connection with any such action;
(dc) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s Borrowers attorney-in-fact effective upon the occurrence of an Event of Defaultfact, in Borrower’s name or in Lender’s name, to enforce all rights of Borrower under each Construction Contract. Such appointment is coupled with an interest and is therefore irrevocable.the construction contract, upon Borrower’s failure to promptly enforce the same, subject to the provisions of paragraph (d) below;
(ed) Prior to the occurrence of an Event of Default, Borrower shall have the right to exercise its rights as owner under each Construction Contractthe construction contract, provided that Borrower shall not cancel or amend any Construction Contract the construction contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender.; and
(fe) This assignment shall inure to the benefit of Lender and Lender, its successors and assigns, including any purchaser upon foreclosure of the Deed of TrustMortgage, any receiver in possession of the Mortgaged Property Land, and any corporation affiliated with formed by or on behalf of Lender which assumes Lender’s rights and obligations under this Loan Agreement.
Appears in 1 contract
Samples: Construction and Semi Permanent Loan Agreement (Advanced Environmental Recycling Technologies Inc)
